Attorney-Client Privilege and the Allied Litigant Doctrine in Texas

Recently, I was approached by multiple parties to represent them in potential litigation in West Texas. Immediately bells and whistles went off about attorney-client communication issues. So before visiting with the potential clients and possibly other retained counsel for other parties, I decided to review the attorney-client privilege in connection with potential multi-party litigation.

The Texas version of the attorney-client privilege is codified at Texas Rule of Evidence 503. Under Rule 503, confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. TRE 503(b). While it is the oldest privilege for confidential communications known under common law, it is not absolute. See In re XL Specialty Ins. Co., 373 S.W.3d 46 (Tex. 2011). What is really noteworthy about the XL Specialty case is the Supreme Court of Texas’ discussion and holding with respect to the requirements for the allied litigant doctrine and the discussion of the joint client privilege, joint defense and common interest doctrines in Texas.

XL Specialty was a case where a Cintras employee was seeking workers’ compensation benefits and was being litigated in a contested case administrative hearing with the Division of Workers’ Compensation. The claim was denied and the employee sued XL Specialty, the workers’ compensation insurer, and the third-party administrator, Cambridge. During the litigation, the employee asked for communications between the insurer, XL Specialty, and Cintras, the employer, associated with the administrative hearing. XL Specialty and Cambridge asserted the attorney-client privilege under TRE 503(b)(1)(C) (i.e. the allied litigant doctrine) and asked the trial court to sustain their objection based on the attorney-client privilege. The objection was based on the allied litigant doctrine that protects communications made between a client, or the client’s lawyer, to another party’s lawyer, not to the other party itself. See In re XL Specialty Ins. Co., 373 S.W.3d 46, 52 (Tex. 2011), citing, Robert Bosch, LLC v. Pylon Mfg. Corp., 263 FR.D. 142, 146 (D. Del. 2009).

Rule 503(b)(1)(C) protects information covered by the attorney-client privilege made “by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action.” The trial court denied the objection and held that the attorney-client privilege did not apply. The court of appeals denied mandamus and XL Specialty and Cambridge asked for the Supreme Court to grant relief and to hold that the attorney-client privilege applied.

The Supreme Court denied the requested relief and held that the communications between XL’s lawyer and its insured, Cintas, were not privileged or protected under TRE 503(b)(1)(C)’s allied litigant privilege because the communications were not made to a lawyer or representative representing another party in a pending action as required by the rule. Here, the communication between XL Specialty’s lawyer and a third party/employer, Cintas, who was not represented by XL Specialty’s lawyer, and was not a party to the litigation or other related pending action, was insufficient to and failed to meet the requirement that the communication be made to a lawyer or her representative representing another party in the pending actionSee In re XL Specialty Ins. Co., 373 S.W.3d 46, 53-54 (Tex. 2011).

In Texas, which has a pending action requirement, no common interest privilege extends beyond litigation. The pending action requirement limits the privilege to situations where the benefit and the necessity are at the highest. Under the allied litigant doctrine, communications made between a client, or the client’s lawyer to another party’s lawyer (but not the party itself) are protected. See In re XL Specialty Ins. Co., 373 S.W.3d 46, 52 (Tex. 2011). For the allied litigant doctrine to apply, the following elements should be present: 1). Separately represented parties; 2). a pending action; and 3). a communication involving a common legal interest made by or to a lawyer of one of the parties as communication of privileged information between the parties themselves will waive the privilege.

I recommend anyone who wants to get a snapshot of Texas’ attorney-client privilege doctrine to review TRE 503 and the XL Specialty case. The pending action requirement is much narrower than the “in anticipation of litigation” standard still used in many jurisdictions. The attorney-client privilege in Texas is a creature of statute and inadvertent waiver can occur unless all the statutory elements are met. The opinions expressed in this blog are the solely the author’s. Any comments, suggestions, or replies can be sent to john@jrjoneslaw.com.

 

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Texas Supreme Court Emergency Order Permitting Out-of-State Lawyers to Practice and Legal Aid Number – Hurricane Harvey

The  Texas Supreme Court has issued an order allowing out-of-state lawyers who are licensed to practice law in another jurisdiction and who meet certain criteria to practice law in Texas for six months from the date of the Court’s Order on August 29, 2017. To Practice, the criteria is:

1. the attorney is in good standing with the entity that governs the practice of law in the
jurisdiction where the attorney is licensed; 2. either: a. the attorney is displaced from the attorney’s home jurisdiction due to Hurricane Harvey and the attorney practices in Texas remotely as if the attorney were located in their home jurisdiction; or b. the attorney is retained by a legal-aid or pro bono program or a bar association that provides services to victims of Hurricane Harvey; 3. as soon as possible after arriving in Texas, the attorney returns to the State Bar of Texas the Registration for Temporary Practice from Texas form attached to the order (See Supreme Court of Texas Website at http://www.txcourts.gov/supreme/news/emergency-orders-addressing-post-harvey-court-implications/); and 4. the attorney agrees to abide by the Texas Disciplinary Rules of Professional Conduct and to submit to the disciplinary jurisdiction of the Supreme Court of Texas and the State Bar of Texas.

As someone living in an affected community, everyone’s help is needed. If you can help, please do so. Also, Legal Aid has a designated hotline to assist Texans affected by natural disasters, including Hurricane Harvey. People seeking help can call 855-548-8457.

Texas Supreme Court and Court of Criminal Appeals Emergency Order Due to Hurricane Harvey

The Texas Supreme Court and Court of Criminal Appeals issued an emergency order Monday, August 28, 2017, authorizing modification and suspension of court procedures in proceedings affected by Hurricane Harvey. The order expires September 27 unless the courts extend it.

“Court proceedings … throughout Texas may be affected by the disaster because of closures of courts and clerks’ offices and difficulties with access, travel, and communication by lawyers, parties, and others,” the order states. “Pursuant to Section 22.0035(b) of the Texas Government Code, all courts in Texas should consider disaster-caused delays as good cause for modifying or suspending all deadlines and procedures—whether prescribed by statute, rule, or order—in any case, civil or criminal.”

The Order covers at least 50 counties listed in the Order, but also throughout Texas. A copy of the Order can be found at http://www.txcourts.gov. Also, a list of court closures can be found at http://www.txcourts.gov/court-closures-delays/.

 

Rule 11 Agreements and Waiver of Special Appearance

In prior issues of this blog, the issues of waiver of special appearance and the due-order-of-pleading rule were briefly discussed. This month’s blog will address that specific issue in another context. That is, can entering into a written agreement to extend the date to answer or otherwise file a response to a new lawsuit containing a request for injunctive relief under Texas Rule of Civil Procedure 11, commonly known simply as a Rule 11 Agreement, waive a party’s special appearance to contest personal jurisdiction?

Texas Rule of Civil Procedure 120a mandates that a special appearance to contest personal jurisdiction must be filed prior to a motion to transfer venue or any other plea, pleading or motion. This is sometimes referred to as the “due-order-of-pleading” requirement. The Texas Supreme Court has held that a Rule 11 Agreement between the parties, in and of itself, is not a plea, pleading, or motion when it is simply extending the time to file an initial responsive pleading and does not violate Rule 120a’s due-order-of-pleading requirement. Such a Rule 11 Agreement does not constitute a general appearance. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004), citing, Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998). Seems simple enough. However, a Rule 11 extension agreement can go further and doing so may waive the special appearance and constitute a general appearance.

The Supreme Court of Texas held that a party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.  Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004), citingDawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998). In Exito, the filing of a Rule 11 extension agreement to answer did not seek enforcement or any other affirmative relief from the court. In its analysis, the Supreme Court held that a Rule 11 agreement extending the time to answer or otherwise file a response does not acknowledge that the action is properly pending. It merely acknowledges that the party is required to respond to the petition in some manner. As a result, the Rule 11 Agreement in Exito that simply granted an extension to answer did not constitute a general appearance. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 306 (Tex. 2004). In contrast, the Defendant in Sedona Pac. Hous. Partnership v. Ventura, 408 S.W.3d 507, 513 (Tex. App.- El Paso 2013, no writ) made a general appearance when it agreed in the Rule 11 agreement to extend the answer date, agreed to continue the temporary injunction hearing and bond, cancel the eviction hearing, asked the court to order mediation and made the Rule 11 subject to “further order of the court” acknowledging the case was properly pending.

The short answer in drafting a Rule 11 Agreement to extend the time to answer or otherwise respond when personal jurisdiction may be an issue is to keep it simple. Ask for an extension to file an answer or responsive pleading and nothing more. Make sure the language is specific and does not trigger one of the factors set out by the Supreme Court of Texas as constituting a general appearance. The opinions in this blog are solely the author’s and any comments, suggestions or replies can be sent to me at john@jrjoneslaw.com.

U.S. Supreme Court Rules on Who Qualifies as a Debt Collector

The United States Supreme Court, in a 13-page unanimous decision written by newly minted Justice Gorsuch, affirmed the United States Court of Appeals decision and clarified today the issue of who qualifies as a “debt collector” subject to the Fair Debt Collection Practices Act’s scrutiny. See Henson v. Santander Consumer USA, Inc., ____U.S.___, 2017 U.S. LEXIS 3722 (June 12, 2017). The issue is extremely important for individuals and entities that purchase debts. For example, what if you purchase the debt and then try to collect it? Does that make you a debt collector subject to the scope of the statute?

The Supreme Court’s decision centered around the language of 15 U.S.C. 1692a(6) which states that the term “debt collector” is defined as anyone who “regularly collects or attempts to collect …debts owed or due…another.”  Santander did not originate the debt at issue before the Court. The debt in the case before the court had been originated by CitiFinancial and then Santander purchased the defaulted loans and Santander was trying to collect on the loans. Both parties acknowledged, and the Court pointed out that both sides agreed, at least partially, on many issues. The real remaining issue in the dispute was “how to classify individuals and entities who regularly purchase debts originated by someone else and they then try and collect on those debts for their own account.”

The United States Supreme Court held that a company may collect debts that it purchased for its own account, like Santander did, without triggering the statutory definition of debt collector and subjecting them to liability under the Fair Debt Collection Practices Act (“FDCPA”). The FDCPA definition of debt collector at 15 U.S.C. 1692a(6) focuses on third party collection agents regularly collecting for a debt owner-not a debt owner seeking to collect for itself. More importantly, the Supreme Court made clear that the key point is that to be a debt collector under this section of the FDCPA, you must attempt to collect debts owed another before you ever qualify as a debt collector.

The ruling by the United States Supreme Court resolves a split in the circuit courts on this issue as it relates to debt purchasers. Be careful. The ruling expressly did not reach the issue of whether debt collector status may be afforded a third party collection agent for debts owed to others or the use of other definitions of the term “debt collector” such as those engaged “in any business the principal purpose of which is the collection of any debts” because these issues were not before the court. For lawyers in  various states that have state versions of debt collection practice acts modeled on the FDCPA, like Chapter 392 of the Finance Code in Texas, where the definition of “Third-Party Debt Collector” specifically incorporates 15 U.S.C. 1692a(6) that was before the court, it is only a matter of time where the ruling of the United States Supreme Court in Henson is extended to various state court challenges to the scope of the state debt collection practices act.

The opinions in this blog are solely the author’s and any comments, replies or suggestions are always welcome at john@jrjoneslaw.com. Happy Father’s Day to all the Dads out there!

 

Fair Debt Collection Practices Act Update – Time-Barred Claims in Bankruptcy

The purpose of the Fair Debt Collection Practices Act (“FDCPA”) at 15 U.S.C. § 1692 –1692p is to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. The FDCPA is designed to protect consumers from and eliminate abusive practices concerning consumer debt collection.

Under the FDCPA, the term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. The FDCPA has always been broadly construed to promote the goals of the statute, but a recent Supreme Court decision indicates that there are limits on the scope and reach and protections of the FDCPA.

In Midland Funding, LLC v. Johnson, __U.S.___, 2017 WL 2039159 (May 15, 2017), the United States Supreme Court in a 5-3 decision held that the filing of a proof of claim in a consumer’s Chapter 13 bankruptcy on a time-barred debt did not violate the FDCPA. This ruling resolved a split in the circuit courts between the U.S. Court of Appeals for the 11th Circuit in Johnson v. Midland Funding, LLC, 823 F.3d 1334 (11th Cir. 2016) and the U.S. Court of Appeals for the 7th Circuit in Owens v. LVNV Funding, LLC., 832 F.3d 726 (7th Cir. 2016).

The Supreme Court opinion in Midland Funding held that unlike lawsuits filed to recover time-barred debt which have been held to violate the FDCPA, the bankruptcy code allows for “claims” to be filed and “claims” are not limited to enforceable claims. In addition, the Supreme Court held that the bankruptcy code makes statute of limitations an affirmative defense that must be raised. The Supreme Court also held that because there was a trustee who must examine proofs of claims and object to time-barred claims, filing an “accurate” proof of claim on a time barred debt was not misleading. Because of the bankruptcy trustee and his role to examine and object to time barred claims, the court opined that the debtor does not face the same pressure as he would in a lawsuit and that distinction appears to have made a big difference in the court’s holding as it did.

The Supreme Court’s holding in Midland Funding is limited to bankruptcy court. The Supreme Court’s ruling explicitly stated that it did not apply to time-barred lawsuits filed in state courts. It also preserves the many federal court decisions finding that filing a collection lawsuit on a time-barred debt is a violation of the FDCPA. It remains to be seen how the practical effect of the Midland Funding decision is on the ever increasing workload of bankruptcy trustees. It clearly adds one more burden to the trustee’s workload. The opinions in this blog are solely the author’s and any comments, suggestions, or replies can be sent to john@jrjoneslaw.com.

Foreign Judgments and Statute of Limitations on Enforcement under 28 U.S.C. § 1963

The issue of the time period for enforceability of a judgment originally entered in one state but registered in another state under 28 U.S.C. §1963 has recently come up in the United States Court of Appeals for the Fourth Circuit. See Wells Fargo Equipment Finance, Inc. v. Asterbadi, 841 F.3d 237 (2016).

CIT/Equipment Financing obtained a $2.63 million judgment against a debtor in 1993 in the Eastern District of Virginia. Under Virginia law, the judgment would be viable for 20 years. Approximately 10 years later, CIT registered the judgment on August 27, 2003 in the District of Maryland under 28 U.S.C. §1963. Under Maryland law, judgments expire 12 years after entry of the judgment.

CIT then sold the judgment to Wells Fargo Equipment Finance who began collection efforts in Maryland in 2015 by renewing the judgment on August 26, 2015. Debtor then challenged and contended that the enforcement of the judgment by Wells Fargo was barred because the efforts to enforce the judgment began more than 12 years after the judgment had been originally been entered in Virginia ( i.e. in 1993). Wells Fargo responded that the registration of the original Virginia judgment in Maryland before it had expired under Virginia law became a new judgment that was subject to Maryland law for enforcement. As a result, Wells Fargo argued that the 12 year limitation period began to run when the judgment was registered in the District of Maryland in August 27, 2003 not when the judgment was originally entered in Maryland in 1993. The district court agreed with Wells Fargo concluding that the time limitation for enforcement of the judgment began with the date of registration in Maryland. From this ruling, Debtor appealed to the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”).

The Fourth Circuit reviewed the relevant parts of §1963 which states in part:

“A judgment in an action for the recovery of money … entered in any … district court … may be registered by filing a certified copy of the judgment in any other district…. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.”

Further, the Fourth Circuit looked at the purpose of § 1963 which was to avoid the necessity and expenses of litigation of a judgment to obtain a judgment. The purpose was to obtain a speedier more efficient method to enforce judgments. As such, the Fourth Circuit construed § 1963 to provide for a new judgment in the district court where the judgment is registered, as if the new judgment had been entered in the district after filing an action for a judgment on a judgment. Accordingly, just as a new judgment obtained in an action on a previous judgment from another district would be enforceable as any judgment entered in the district court, so too is a registered judgment. In affirming the district court, the Fourth Circuit held that the time period for enforcement begins to run from the date of the new registration, not the date of the original judgment.

The enforcement of foreign judgments is a very commonplace event in today’s economy. It has also been my experience that judgment debtors move back and forth across different state borders all the time. Having the ability to extend the time period for enforcement of a judgment under 28 U.S.C. § 1963 from the date of the registration in the new district is a very useful tool and will help enforce judgments from debtors who too often skip across state lines. The opinions in this blog are solely the author’s and any comments, suggestions or replies are welcome at john@jrjoneslaw.com.