Texas lawyer convicted of fraud and defamation looks to immunity on appeal of judgment.
Jerry Scarbrough’s representation of a client in the controversial civil dispute against a wealthy Killeen family has cost him $54,000 in sanctions for discovery abuse for allegedly failing to turn over evidence. He believes his conduct in the course of representing his client should be protected by qualified immunity.
His theory of the case involved accusing members of the prominent Purser family of “murdering” its patriarch, Gary Purser Sr., with prescription drugs in order to get access to his money. That allegation got Scarbrough named as a defendant in a state court defamation case.
A Bell County jury ultimately determined that Scarbrough committed both fraud and defamation and hit him with over $10 million in damages.
After a trial court judge confirmed the award and the sanctions in a 2012 final judgment, the State Bar of Texas found that Scarbrough committed
professional misconduct during the case and gave him a 10-year partially probated suspension of his law license.
And in 2014, U.S. Bankruptcy Judge Ronald King in Waco refused to allow Scarbrough to discharge the judgment against him through a Chapter 7 proceeding because Scarbrough “committed a willful and malicious act when he disseminated the false and outrageous allegations that the Purser family abused and murdered their father.”
“I’ve just been ruined—every way you can do it,” Scarbrough said.
Scarbrough hopes to overturn the judgment on appeal, and Austin’s Third Court of Appeals heard oral arguments in his case on Oct. 22. But if the ruling stands, Scarborough believes it could be devastating to any civil lawyer who tries a controversial case.
“They were telling me how to run my case,” Scarbrough said of the trial court judgment. “The whole problem is, if you’re a lawyer in Texas and you see something going on, what are you supposed to do? If this case stands, the lawyer will have to try his case from his theory, but make sure the theory doesn’t offend the other side.”
Michele Chimene, a Houston solo who argued Scarbrough’s case before the Third Court, believes that the trial court erred by not granting Scarbrough qualified immunity. Qualified immunity traditionally protects lawyers from civil liability while representing a client during a case—even if their actions are wrong, she said.
“Anything that is lawyerly in defense of a specific case—whether it’s discovery, trial or investigation—is protected by the qualified immunity defense,” Chimene said. “Even if conduct is wrongful—even if he was wrong, that they didn’t poison their father—he has a defense under qualified immunity.”
Daryl Moore, a Houston solo who represents the Purser family in the case, said qualified immunity doesn’t apply to Scarbrough in the case because the jury found that he acted with malice. In fact, some of the evidence that Scarbrough allegedly failed to turn over helped convince them that the lawyer acted with malice, Moore said.
Originally posted by John Council on TexasLawyer.com.
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