After E. Pierce Marshall, Sr. died, his wife Elaine T. Marshall became trustee and income beneficiary of a Texas trust that, on her death, would make their youngest son Preston Marshall successor trustee, or an independent person if he could not serve, rather than the oldest son, E. Pierce Marshall, Jr..¹ Elaine merged the Texas trust into a new Wyoming trust, effectively designating Pierce Jr. as successor trustee; the Wyoming trust divides the assets into two equal marital trusts, one for Preston and his children and one for Pierce Jr. and his children.² Preston sued Elaine for breach of fiduciary duty and sued Pierce Jr. and attorney Edwin K. Hunter for aiding and abetting, arguing that after Elaine's death Pierce Jr. as trustee could structure liquidation of the family's holdings, with substantial inheritance tax owed, to benefit himself; billions of dollars are at stake.³ Hunter has been one of Elaine's attorneys for about two decades, advising her on business, estate-planning, and tax matters, and says all the conduct Preston alleges was legal work for her.⁴ Hunter and Elaine also say a prior suit, Marshall v. MarOpCo, Inc., found as a necessary part of its final judgment that Preston was never Hunter's client.⁵

This is an original proceeding for writ of mandamus from the denial of summary judgment on attorney immunity. After discovery, the trial court (the probate court) denied Hunter's motion for summary judgment, and the Fourteenth Court of Appeals denied mandamus without comment on October 16, 2024.¹ Hunter filed his petition on January 22, 2025; Elaine responded in support on February 19, 2025, and Preston responded after the Court requested a response; the Court issued stays on April 17 and July 7, 2025, and requested briefs on the merits, which were filed through August 22, 2025. It denied the petition on October 10, 2025, with Justice Devine not participating. It denied it together with the companion petition in In re E. Pierce Marshall, Jr. (No. 24-1010), over a dissent by Justice Young and Justice Sullivan.²

Original proceeding for writ of mandamus after the Fourteenth Court of Appeals denied relief; denied October 10, 2025, with a dissent by Justices Young and Sullivan.³

Hunter presents one issue: whether a writ of mandamus should issue because he was deprived of the immunity from suit afforded by attorney immunity, where all of Preston's claims against him arise from actions he took as a lawyer for his client.¹ The dissent frames the question as whether attorney immunity is immunity from suit or only from liability, and so whether mandamus is available to enforce it before trial.²

Mandamus is appropriate to correct a clear abuse of discretion for which the relator has no adequate remedy by appeal, and a trial court has no discretion in determining or applying the law.¹ Mandamus is generally unavailable when a trial court denies summary judgment, but the Court has made exceptions when a substantive right would be impaired or lost while awaiting appeal, as in In re Facebook.²

Whether attorney immunity is immunity from suit that mandamus can enforce.

Relator (Hunter): Attorney immunity is a true immunity from suit, as Bethel (shielding the defendant "from civil suit") and the Fifth Circuit's Troice decision indicate, so without mandamus it will be irretrievably lost, and the only adequate remedy is a writ directing summary judgment.¹

Real Party in Interest (Preston): Attorney immunity is an affirmative defense to liability, not an immunity from suit, because immunity from suit limits a court's subject-matter jurisdiction; the idea that it bars suit came from a case summary, not this Court's precedents, and it would elevate private lawyers above public servants who have only immunity from liability.² Mandamus also should be denied because Hunter slept on his rights and strategically delayed to create emergencies.³

Whether the trial court erred in denying immunity.

Relator (Hunter): The only facts needed are that he was Elaine's attorney and that the conduct was legal services, and Preston does not dispute either; Preston's one defense, that Hunter was also his lawyer, is precluded because MarOpCo found as an essential part of a final judgment, now affirmed, that Preston was never Hunter's client.⁴

Real Party in Interest (Elaine): She supports Hunter: he is her longtime estate-planning attorney, Preston's claims rest on what he did for her, and Preston should not be able to threaten her ability to rely on her counsel.⁵

Real Party in Interest (Preston): Hunter had to prove Preston was not his client, but relied only on a bare assertion, while Preston showed decades of documents that Hunter represented him; collateral estoppel fails because Hunter did not show the MarOpCo finding was essential and the burden of proof has shifted.⁶

Hunter argued that attorney immunity is a true immunity from suit that will be irretrievably lost without mandamus.¹ The dissent would have granted review because the questions recur, the courts of appeals are split, and the leading authority is the Fifth Circuit's Erie guess.²

None

Reasoning

The Court gave no reasons for denying the petition; the only writing is the dissent by Justices Young and Sullivan, which is not a holding.¹ They wrote that the Court passed up a chance to say whether attorney immunity protects from suit or only from liability, which would benefit Texas attorneys and clients and the state and federal courts that confront the issue.² The immunity covers conduct in the lawyer's capacity as an attorney within an existing attorney-client relationship, and these cases raise questions the Court has not addressed.³

They explained that the Court's cases use "suit" and "liability" language inconsistently and the courts of appeals are split, while the leading authority is the Fifth Circuit's Troice decision guessing that Texas would treat attorney immunity as true immunity from suit; they suggested harmonizing the cases because immunity from suit necessarily also protects against liability.⁴ They said Preston's point that immunity from suit implicates subject-matter jurisdiction is a false dichotomy, since the doctrine could confer a significant right to avoid litigation without being jurisdictional, and that if it protects against litigation, appeal cannot be an adequate remedy.⁵

As to the cases, the denial in Marshall (Pierce Jr.'s petition) might not have been an abuse of discretion, because of a fact question about whether he represented Elaine, though they reserved judgment; but in Hunter, Preston lost the attorney-client issue in MarOpCo, which appears to have issue-preclusive effect, making Hunter "a clean vehicle".⁶

Disposition

Petition for writ of mandamus denied on October 10, 2025, and the stay orders lifted.

Vote Breakdown

Justice Young and Justice Sullivan dissented from the denial of the petitions.⁷ Justice Devine did not participate.