A split 15th Court of Appeals has reversed a Business Court order denying an attorney defendant’s Rule 91a motion to dismiss based on the affirmative defense of attorney immunity.
In re Frank Jackson (No. 15-25-00235-CV; July 14, 2026) arose from a wrongful termination lawsuit. Defendant, The Reynolds and Reynolds Company, hired Plaintiff as CEO in 2020. Plaintiff signed an amended written employment agreement in 2024 with a ten-year term. Defendant reserved the right to terminate Plaintiff at any time, but termination without cause entitled him to the compensation for the full ten-year term (about $350 million). Termination with cause, however, would only cost Defendant accrued benefits owing to Plaintiff. In 2022 Defendant’s parent company, United Computer Systems Holding, Inc., hired attorney Frank Jackson as a “business advisor.” Jackson never worked for Reynolds, but allegedly provided information to UCS that disparaged Plaintiff. In 2025, Reynolds’s law firm notified Plaintiff that the company was terminating him for cause for breach of his employment contract, misappropriation of assets or business opportunities, and fraud. The letter copied Jackson as “general counsel” of Reynolds. Plaintiff filed suit against Reynolds the next day for breach of contract. He also sued UCS’s owner and Jackson for tortious interference with contract.
After Defendants moved the case to the Business Court, Jackson filed a Rule 91a motion to dismiss the tortious interference claim against him based on the attorney-immunity defense, claiming that his conduct involved “core attorney conduct” as “general counsel of UCS.” Plaintiff filed a second amended petition that deleted references to Jackson as general counsel, alleging that Jackson gave only business advice, “including involvement in company investments, operations, technology, and product management.” The Business Court denied Jackson’s Rule 91a motion Jackson sought mandamus relief.
In an opinion by Chief Justice Brister, the court granted the petition. The court first observed that the attorney-immunity defense “applies on all adversarial contexts in which an attorney has a duty to zealously and loyally represent a client, including a business-transactional client.” The immunity, however, “will not protect a lawyer when his ‘acts are entirely foreign to the duties of an attorney.’” Additionally, Jackson’s petition implicated the attorney-client privilege, which cannot be breached by “speculation that some of an attorney’s communications might have been nefarious or ‘just business advice.’” These rules work in tandem, and the question the court must resolve is “whether the conduct an opposing party challenges was not ‘the kind of conduct’ attorneys undertake while discharging their professional duties to a client.” The opposing party must plead “the essential factual allegations supporting the claim” to surmount a Rule 91a motion, since “Rule 91a does not permit courts to infer misconduct absent supporting factual allegations.”
Here Plaintiff pleaded no such factual allegations demonstrating that Jackson “performed no legal duties for Reynolds or its affiliates, or that advice he gave Reynolds regarding [Plaintiff’s] termination was not ‘lawyerly’ advice.” If Jackson in fact served in the capacity of general counsel, as Plaintiff initially pleaded (and admitted later), the court could not “infer that his business duties as general counsel for interrelated corporate entities did not include legal issues that only a corporate attorney might recognize and address.” The court further rejected Plaintiff’s argument that since he and Jackson worked for the same entity, Plaintiff should be considered as Jackson’s “client.” The Business Court thus abused its discretion by denying Jackson’s Rule 91a motion.
Justice Farris dissented. She argued that “the allegations in [Plaintiff’s] live petition paint a picture of Jackson seeking to oust the CEO or Reynolds—a company that did not employ Jackson as general counsel or in any other capacity—so that Jackson could secure the CEO position for himself.” Since the court must take Plaintiff’s pleaded allegations as true for purposes of the Rule 91a motion, she continued, “the facts … preclude any finding that Jackson’s conduct qualifies for attorney immunity as a matter of law. To hold otherwise would immunize the conduct of an attorney jockeying for a corporate position to promote his own self-interest.” In other words, just because Jackson happened to have a law license didn’t change the nature of the business advice he allegedly provided to UCS. Indeed, Jackson’s alleged activities didn’t indicate that he gave any advice “particular to ‘the office, professional training, skill, and authority of an attorney’ …” (citing SCOTX’s summary of the test for attorney immunity). She thus inited SCOTX to grant review “to provide clarity on what constitutes the ‘unique’ office and skills of an attorney in this context.”
