Vinson & Elkins’ Law Firm Defense team constantly monitors Texas judicial and ethics opinions that could impact potential liability for attorneys and law firms practicing in Texas and around the country. We summarize here what we considered to be the most important Texas judicial opinions of 2025 about which law firm general counsel and loss-prevention attorneys with regional, national, or international practices should be aware.
1. Two Justices Urged the Texas Supreme Court to Answer Whether the Denial of Attorney Immunity is Subject to Immediate Appellate Review.
In re Marshall, 722 S.W.3d 17 (Tex. 2025)
The Texas attorney immunity doctrine is a defense that generally insulates attorneys from being sued by non-clients for legal work the attorney performed within the scope of representing a client. In 2016, the United States Court of Appeals for the Fifth Circuit made an Erie guess that the denial of attorney immunity should be immediately appealable under the collateral order doctrine because “attorney immunity is properly characterized as a true immunity from suit, not as a defense to liability.” Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 346 (5th Cir. 2016). Thus, for almost a decade, it has been well-established in federal courts that the denial of attorney immunity is subject to an immediate interlocutory appeal. The Texas Supreme Court, however, has never addressed the question.
The Texas Supreme Court had the opportunity to answer the question this year as part of In re Marshall, but the majority chose to deny without commentary the Petition for Writ of Mandamus that would have put this question before the Court. Justices Evan Young and James Sullivan dissented from this denial and urged the Court to answer the question, which would “benefit Texas attorneys, the clients they represent, and the state and federal courts that confront this recurring issue with surprising regularity.”
Although Justices Young and Sullivan stopped short of disclosing how they would answer the question, their commentary seems to suggest they might agree with the Fifth Circuit’s decision in Troice. According to their dissent, “[t]he importance of attorney immunity—which . . . could be immunity both from suit and from liability—may be such that its clearly improper denial at any pretrial stage of litigation warrants mandamus relief.” (emphasis in original). They further noted that “it is possible that the doctrine confers a significant right to avoid litigation altogether, such that a denial of that claim before trial cannot be allowed to await appeal because doing so would destroy the very right at issue.”
2. The Texas Supreme Court Adopted and Applied the Anti-Fracturing Rule For the First Time.
Pitts v. Rivas, 709 S.W.3d 517 (Tex. 2025)
For decades, Texas courts of appeals have been applying what is known as the anti-fracturing rule in professional-liability cases (especially legal-malpractice cases). The anti-fracturing rule generally prohibits a plaintiff from converting what is in reality a negligence claim into another claim—like breach of fiduciary duty, fraud, or breach of contract—in order to gain a litigation advantage (for example, a longer limitations period). If the crux of the plaintiff’s claim is a complaint about the quality of professional services provided by a defendant, then the anti-fracturing rule requires that it be treated as a negligence claim with a two-year statute of limitations, regardless of the label ascribed to it by the plaintiff.
Although the Texas Supreme Court had noted the existence of the anti-fracturing rule in prior opinions, it had never adopted and applied the doctrine. This year, the Court finally adopted and applied the anti-fracturing rule for the first time in Pitts. In applying the anti-fracturing rule to an accounting-malpractice case, the Court noted that “[t]he anti-fracturing rule comports with this Court’s recognition, in other contexts, that the law should not reward artful pleading.” The Court further explained that the anti-fracturing rule “serves an important purpose by requiring a searching analysis of the gravamen of the plaintiff’s claims and thereby guarding against efforts to artfully evade the procedural and substantive rules applicable to allegations of professional malpractice.”
3. The Fourteenth Court of Appeals Found That A Law Firm’s Receipt of a Client’s Confidential Strategies and Legal Concerns Does Not Necessarily Prohibit the Law Firm From Later Being Adverse to That Client.
In re Brown & Root Industrial Servs., LLC, No. 14-24-00608-CV, 2025 WL 597062 (Tex. App.—Houston [14th Dist.] Feb. 25, 2025, no pet.)
In In re Brown & Root, the Texas Fourteenth Court of Appeals in Houston tackled the common issue of whether a law firm’s current representation of a plaintiff was “substantially related” to another matter on which the law firm previously represented the defendant so as to justify disqualifying the plaintiff’s counsel in the current matter. In the underlying lawsuit, the plaintiff alleged that the defendant improperly used plaintiff’s former employees and trade secrets to steal plaintiff’s business opportunities. In seeking to disqualify the plaintiff’s counsel, the defendant argued that the plaintiff’s counsel previously represented the defendant on corporate and labor/employment issues, through which the law firm allegedly received the defendant’s confidential information, strategies, and legal concerns about the same business in which plaintiff operated. Accordingly, the defendant argued that the plaintiff’s counsel could now use the defendant’s confidential information against it or to plaintiff’s advantage.
The Fourteenth Court of Appeals found these facts to be insufficient to establish a substantial relationship between the two matters. The court acknowledged that Texas Disciplinary Rule of Professional Conduct 1.09 cmt. 4B notes that substantial relationship “primarily involves situations where a lawyer could have acquired confidential information concerning a prior client,” but also noted that the Texas Supreme Court has held that matters are substantially related only when there is a “genuine threat” that confidential information will actually be shared with the law firm’s current client. Here, although the defendant identified confidential information that it previously shared with plaintiff’s counsel, the defendant failed to “delineate specific facts that tie the former and current representations together,” and thus the defendant failed to justify the disqualification of the plaintiff’s counsel.
4. The San Antonio Court of Appeals Confirmed That Attorney Immunity Applies to Claims Under TUFTA, Even When An Attorney Personally Benefits From the Alleged Fraudulent Transfer.
Ridgeway v. MedFinManager, LLC, 716 S.W.3d 937 (Tex. App.—San Antonio 2025, pet. denied)
In Ridgeway, an attorney was sued by his client’s creditor under the Texas Uniform Fraudulent Transfer Act (“TUFTA”) after receiving settlement proceeds on behalf of his client and then distributing those proceeds to himself and his client, despite allegedly knowing that a creditor had a purported lien on those settlement proceeds. The attorney argued that the TUFTA claim against him was barred by attorney immunity. The creditor argued that attorney immunity was inapplicable because the attorney was acting in his personal capacity (not as an attorney) when he distributed some of the settlement funds to himself and that attorney immunity did not apply to a TUFTA claim.
The court rejected the creditor’s arguments and held that the TUFTA claim against the attorney was barred by attorney immunity. As the court explained, “disbursing settlement funds to or on behalf of a client is the type of conduct within the scope of representation,” and disbursing “part of the settlement funds to himself as his attorney’s fee in the case does not equate to [the attorney] acting in a personal capacity.” The court further noted that because “TUFTA does not expressly repudiate the common law or the attorney immunity defense,” there is no argument that TUFTA abrogates the attorney immunity defense.
5. The Corpus Christi-Edinburg Court of Appeals Confirmed That A Legal-Malpractice Plaintiff Cannot Establish Proximate Cause Through An Expert’s Speculation About What A Third Party Might Have Done In A Different Scenario.
Unimex Logistics, LLC v. Guerra, No. 13-23-00348-CV, 2025 WL 1912194 (Tex. App.—Corpus Christi–Edinburg July 10, 2025, no pet.)
In Unimex, a company sued its law firm after suffering an adverse jury verdict exceeding its insurance policy limits in a personal-injury suit. The company alleged that the law firm failed to properly value the case and advocate settlement, which allegedly caused the company’s insurer to reject multiple pre-trial settlement demands within policy limits. The company proferred two experts, both of whom opined that the law firm was negligent in valuing the case, which led to the insurer rejecting the pre-trial settlement offers. Specifically, the experts opined that, based on their knowledge, training, and experience, the insurer was inadequately informed of the litigation risk and that a reasonably prudent insurer would have accepted the pre-trial settlement offers if defense counsel had properly assessed and advised about the litigation risks.
The Corpus Christi–Edinburg court found this evidence insufficient to establish proximate cause. The court explained that, “[t]o prove cause in fact in this case, [the company] was required to show that [the insurer] would have hypothetically relied on [counsel’s] recommendation to settle and would have accepted one of [the pre-trial] settlement offers.” The court, however, found the opinions of the company’s experts to be no evidence as a matter of law because their testimony “was merely speculative as to what [the insurer] would have done had [counsel] recommended accepting [the pre-trial] settlement demands.” Moreover, the court held that “opining on what a reasonably prudent person would do in [the insurer’s] position is not tantamount to what [the insurer] would have done had [counsel] recommended settlement.”
