Two attorneys, the Bakers, prepared a will for a woman, Lucia. When Lucia died, the Bakers filed the will for probate as a muniment of title. The will left everything to a daughter who was the client of the Bakers. The testator’s son and grandson, the Morenos, filed suit against the Bakers alleging fraud. They claimed that the Bakers knew that Lucia lacked the capacity to execute the will and deed and that the Bakers acted fraudulently in having Lucia execute the documents, and in representing in the probate proceedings that Lucia had the capacity to do so. The Morenos alleged that the Bakers’ actions caused them to be disinherited. The Bakers filed a motion to dismiss under Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. also called the Texas Anti-Slapp Act. The Bakers said the claim by the Morenos was a legal action based on, related to, or in response to the Bakers’ exercise of the right to petitionSee id. § 27.003(a). The Bakers further argued that they were entitled to dismissal under the TCPA pursuant to the attorney immunity affirmative defense. See id. § 27.005(d). The trial court denied the Baker’s motion to dismiss and the Bakers appealed.

Court of Appeals

The Corpus Christi court of appeals broke the case into two parts: (1) filing the will for probate, and; (2) the preparation of the will.

1. On filing the will for probate, the court agreed with the Bakers and dismissed the claims against the Bakers relating to the probate of the will.

(T)he Bakers’ filing of the application to probate Lucia’s will and any statements made in the probate proceedings constitute the “making or submitting of a statement or document in or pertaining to a judicial proceeding…(and) Attorney immunity is a `comprehensive affirmative defense protecting attorneys from liability to non-clients.”

2. As to preparing the will before trial, the court denied the Bakers’ motion to dismiss.

While these actions constitute the making or submitting of a statement or document, there was no pending judicial proceeding when the conduct occurred…we conclude that the Bakers failed to establish the TCPA’s applicability to the Morenos’ claims concerning the preparation and execution of the will and deed.

Take Away

Attorneys who work for clients pre-suit may be liable for their actions without the protection of the Anti-Slapp Act. But those who represent clients in a judicial proceeding are pretty much immune from suits like those filed by the Morenos.





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