August 22nd, 2017

​US Court of Appeals for the Fifth Circuit Opinions
Kelly v. Nichamoff

Docket: 16-20699
Opinion Date: August 21, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Legal Ethics

Defendant filed an interlocutory appeal challenging the district court's denial of defendant's motion to dismiss based on his assertion of Texas's attorney immunity. Plaintiff alleged that defendant conspired with two others to defraud her into purchasing a Texas company owned by one of the defendants, Paul Rembach. The district court concluded that Texas's attorney immunity was inapplicable because defendant's representation of Rembach occurred during a business transaction (a stock transfer) and was unrelated to litigation or an otherwise adversarial context. The Fifth Circuit held, however, that defendant took actions that constituted fraud independent of his duties as an attorney and would not qualify as "acts taken and communications made to facilitate the rendition of legal services" to the client. Defendant could not shield his own willful and premeditated fraudulent actions from liability simply on the ground that he was an agent of his client. The court explained that independently fraudulent conduct was foreign to the duties of an attorney and fell outside the scope of client representation. Because defendant failed to establish the scope of his representation of Rembach and that his alleged conduct fell within that scope, the court affirmed the district court's judgment on those alternative grounds.