1. What is zealous representation?
Zealous representation is a phrase attorneys know well as a delineation of the standard for the attorney-client relationship. The Texas Disciplinary Rules of Professional Conduct, however, do not provide Texas attorneys with a definition for zealous representation. This has left the question of what zealous representation is up to some interpretation; “what one attorney considers zealous conduct might seem overzealous to another—or to a court or disciplinary panel.”[2] Recently, the Texas Supreme Court stated that an attorney’s duty of “loyal” or “zealous” representation does not arise exclusively in the realm of litigation.[3] Rather, “zealous representation must occur” in all an attorney’s “professional functions.”[4] Consequently, an attorney’s obligation to provide zealous representation begins at the moment the client requests legal services and the attorney agrees to provide.[5] An attorney’s duty to furnish zealous representation persists throughout all phases of representation. Although the duty of zealous representation might be difficult to define, the most important thing for attorneys to understand is that other professional responsibilities cannot yield to the pursuit of zealous advocacy. Attorneys must also keep in mind their explicit duties of competency, diligence, and loyalty in representing their clients. Being a zealous advocate necessarily involves being a competent, diligent, and loyal advocate. In the course of providing zealous representation, an attorney must not violate any of the rules of professional conduct. For example, given a lawyer’s express duty of candor to the court, “misstating facts or misrepresenting the record can never be justified under the guise of zealous advocacy.”[6] In 2014, the Texas Supreme Court discussed that, although zealous advocacy is a “professional obligation,” an “attorney must not permit client desires to supersede the attorney’s obligation to maintain confidence in our judicial system.”[7] To be a successful, zealous advocate, attorneys must balance their many other professional obligations with their desire to vehemently pursue their client’s interests.2. Protections
There are also protections designed to prevent a lawyer from being too severely hindered in her pursuit of zealous representation. For example, in Barcelo v. Elliot, the Texas Supreme Court reinforced a “privity barrier,” “which denies a cause of action to all beneficiaries whom the attorney did not represent.”[8] This restriction on who can bring a cause of action against an attorney regarding matters related to her representation of a client was designed “to ensure that attorneys [can] zealously represent their clients” without representation being compromised by the threat of suit from third parties.[9] The privity barrier has evolved over time into the concept of attorney immunity. In 2021, the Texas Supreme Court held that “attorney immunity applies in all adversarial contexts in which an attorney has a duty to zealously and loyally represent a client.”[10] Attorney immunity, however, only applies “when the claim against the attorney is based on the [type] of conduct attorney immunity protects.”[11] The type of conduct protected by the attorney immunity defense includes conduct that “constitutes the provision of ‘legal’ services” and that “the attorney engages in to fulfill [her] duties in representing the client within an adversarial context.”[12] Importantly though, attorney immunity does not apply where client and the non-client share the same interest(s).[13]The defendant’s decision often hinges on the quality of federal judges, prompting a defendant to consider removal to a federal setting. Other benefits of Federal court include: (1) jury pools that pull from multiple counties and not just one like state court; (2) jury decisions must be unanimous to reach a verdict; and (3) potentially, less congested dockets. Thus, if Federal Court jurisdiction is desired, then this is where Snap Removal, a strategic maneuver, might come into play.
So, what is Snap Removal? The Snap Removal Doctrine allows a defendant to execute the removal of an otherwise non-removable case, specifically when a named defendant, yet to be “properly joined and served,” is a citizen of the forum state. This legal maneuver creates a strategic window of opportunity for defendants, allowing them to shift the jurisdiction of a case involving a forum defendant.
Snap Removal is particularly noteworthy because of its seemingly evasive nature concerning the Forum Defendant Rule. Traditionally, the Forum Defendant Rule imposes a restriction on the removal of a case involving a forum defendant. Snap Removal, however, navigates around this restriction, introducing an opportunity for defendants to act swiftly and strategically. Snap Removal hinges on the timing of the removal, necessitating the filing of the removal before the forum defendant receives proper service.
Federal courts around the country hold varying perspectives on Snap Removal. It is crucial for an out-of-state defendant to diligently consider the law when determining the feasibility of removal before the service of a forum defendant. In the Fifth Circuit, the Court’s decision in Texas Brine Co., L.L.C., v. American Arbitration Association Inc. establishes that a non-forum defendant can remove an otherwise unremovable case if it involves a named forum defendant, and the removal takes place before the proper joinder and service of the forum defendant. The Court acknowledged the procedural nature of the Forum Defendant Rule and emphasized that the statute explicitly prohibits removal in the forum where the defendant has been properly joined and served.
In our legal practice, especially within the domain of trucking litigation in Texas, we regularly confront situations where the truck driver serves as the forum defendant. If Federal Court jurisdiction is desired in such a case, it is imperative to initiate removal proceedings before the forum defendant receives proper service. In such cases, it is important to ascertain whether the forum defendant, the truck driver, has been served. Contacting the defendant truck driver may be necessary to ascertain whether he, the forum defendant, has been served. In such situations, proactive communication is important to effectively navigate the legal landscape. Ensuring timely and accurate information is crucial for making informed decisions regarding the initiation of removal proceedings. Checking the Court’s Docket is also required.
Ultimately, Snap Removal highlights the strategic essence of legal proceedings, emphasizing the tactical nature of this approach. Defendants deciding whether to initiate removal must factor in considerations such as jurisdiction and comprehend the potential benefits provided by federal courts. If the Federal court is your client’s preferred jurisdiction, after weighing the pros and cons, then the doctrine of Snap Removal can be a useful tactic to utilize in removing a case involving a forum defendant. However, time is of the essence, as the removal must occur before the forum defendant is properly served. Thus, retaining your attorney sooner rather than later is always preferred so that scenarios like Snap Removal can be utilized before the opportunity passes. For more information on Snap Removal, feel free to contact the firm for additional information and discussion.
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