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57 2023-08-14 RSP Kassab Response to Pohl Barratry MSJ Kassab Defendants' Response to Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Filed August 14, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Kassab responds to Pohl's Rule 166(g) pretrial motion seeking to exclude evidence of barratry and eliminate ten of Kassab's affirmative defenses. Kassab argues barratry evidence is central to both Pohl's claims and Kassab's defenses, and that Rule 166(g) is procedurally improper for this purpose. MSJ-3 N/A Phase 4 2023-08-14_RSP_Kassab-Response-to-Pohl-Partial-MSJ_FILED.pdf Deny Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants 8/13/2023 12:21 PM Marilyn Burgess - District Clerk Harris County Envelope No. 78474030 By: Bonnie Lugo Filed: 8/14/2023 12:00 AM CAUSE NO. 2018-58419 MICHAEL A. POHL, et al § IN THE DISTRICT COURT V. § OF HARRIS COUNTY, TEXAS § k § e SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT THE KASSAB DEFENDANTS’ RESPONSE TO PLAINTIFF’S RULE 166(g) tMOTION Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab”) files this Reseponse to Plaintiffs’ Michael Pohl and Law Office of Michael A. Pohl PLLC’s (“Pohul”) Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants (“the Motion”), and in support thereof, woulda show the following. SUMMARY Pohl asks the Court to rulee that the issue of whether Pohl committed barratry is irrelevant and should be efxcluded from evidence. Pohl is so concerned about this issue that he has made it the subject of several motions seeking similar relief. But barratry is central not only to Kassab’s defenses; it is central to Pohl’s own claims. As a preliiminary matter, Pohl’s latest motion is procedurally defective. Rule 166(g) is noot intended as a substitute for normal summary judgment practice. Indeed, Pohl previously moved for summary judgment on Kassab’s affirmative defenses, later withdrawing his request to have his summary judgment motion heard. The new Motion improperly tries to backdoor the same relief. More substantively, Pohl’s barratry is relevant to virtually every issue in the case. Take his trade secret claim. He must prove that he is the “rightful, legal, or equitable” owner of the alleged secrets. If Pohl himself obtained the alleged secrets illegally, he cannot enjoy the benefits of the trade secret statute. Moreover, for Pohl to recover his attorneys’ fees on his trade secret claim, he must provek “willful and malicious misappropriation.” In other words, Pohl’s claim dependsC on Kassab’s state of mind. Kassab is entitled to prove that his belief about Pohl’s barratry was well- founded. i Barratry is also directly linked to Pohl’s claim to recover his fees for defending the barratry suits. Pohl claims those fees as damages for misappropriation of trade secrets. How can he seek to recover fees for defending the barratry suits without talking about the claims in those suits? Iln addition, Kassab asserts proportionate responsibility for these alleged damaMges; he gets to demonstrate that Pohl incurred those fees not because of any alleged misappropriation of trade secrets but because Pohl engaged in barratry. Bariratry therefore hits the heart of the cause of Pohl’s own damages. Barratry is releovant to several of Kassab’s defenses, too. As we will explain, the defenses of illlegality, unlawful acts, attorney immunity, judicial privilege, and others all brinig the facts surrounding the barratry into the picture. We understand why Pohl strives so mightily to exclude evidence of his own contributing conduct. It mortally wounds his claims. But the facts relating to the barratry underlie and intertwine with all the claims and defenses. The Motion must be denied. RESPONSE TO RULE 166(g) MOTION I. Pohl’s belated use of Rule 166(g) as a last-minute effort to decide the merits of Kassab’s affirmative defenses is improper. Rule 166(g) provides that, “to assist in the disposition of thee case without undue expense or burden to the parties, the court may in its discretion direct the attorneys for the parties and the parties … to appear beforte it for a conference to consider … [t]he identification of legal matters to be ruled on or decided by the court[.]” TEX. R. CIV. P. 166(g). “The pretrial confereence contemplated by this rule should not be used to determine issues involvinug controverted facts. It is a tool to ‘dispose of issues which are founded upon admitted or undisputed facts.’” McCreight v. City of Cleburne, 940 S.W.2d 285, 288 a(Tex. App.—Waco 1997, writ denied) (quoting Provident Life & Acci. Ins. Co. v. Hazlitt, 216 S.W.2d 805, 807 (1949)). Thus, “[t]here is nothing in the rule authorizineg the trial court to determine the merits of the issues raised by the pleadings at a pfre-trial hearing, where the parties do not agree to limit the issues, and the issues raised by the pleadings are not disposed of by admissions.” Mason v. Tobin, 408 S.W.2d 243, 245 (Tex. Civ. App.—Houston 1966, no writ). That is eixactly what Pohl wants the Court to do here; obtain summary- judgment lioke dismissal of Kassab’s affirmative defenses (without providing Kassab the requisite summary judgment notice), arguing that Kassab’s unlawful acts defense is precluded under Texas law,1 that the defense of justification is “not available as a 1 Motion, at § B(1). matter of law,”2 that immunity under the rules of disciplinary procedure does not apply,3 and that “unclean hands is not a defense to legal claims.”4 Notably, Pohl already sought to dismiss these defenses via traditional and no-evidence summary judgment.5 Kassab, along with other defendants, responded.6 Althoughk Pohl set that motion for hearing, he voluntarily withdrew the notice after KassabC filed his response and it was never reset. Pohl had his opportunity to obtain dismissal on Kassab’s affirmative defenses, but he squandered it. Pohl should noit now, at this late in the game, be permitted to misuse Rule 166(g) as an untimely means to decide the merits of Kassab’s affirmative defenses. See Mason, 408 S.W.2d at 245. II. Evidence of Pohl’s barratrous conduct is directly relevant to Pohl’s claims and his own proportionate responsibility. Pohl’s Rule 166(g) motion is basead entirely on the false premise that “whether barratry occurred” is “not legally relevant to the material issues in this case[.]”7 Whether Pohl committed barratery is relevant to establishing Pohl’s own claims, and his own proportionate responfsibility. Pohl has pursued claims under TUTSA, which requires a person claiming ownership of a trade secret to demonstrate “rightful, legal, or equitable” title to the information. Se ei TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Yet, a person cannot 2 Motion, at § B(2). 3 Motion, at §§ B(3). 4 Motion, at § B(4). 5 See Plaintiffs’ Motion for Partial Summary Judgment on Defendants’ Affirmative Defenses that Seek to Relitigate Failed Barratry Claims Against Plaintiffs and No-Evidence Motion for Summary Judgment on the Remaining Affirmative Defenses, filed on August 29, 2022. 6 See Kassab’s Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary Judgment, filed September 12, 2022. 7 Motion, p. 2. own or enforce rights in a trade secret for information about ongoing illegal activities. See Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012). In Alderson, the Court recognized that a trade secret “only exists if the secret-holder takes reasonable efforts to maintain the skecrecy of the information” and that “element simply cannot be satisfied with respCect to information about ongoing illegality.” Id. The Alderson court noted that its “conclusion is consistent with the underlying justifications of trade secretis law, which include ‘the maintenance of standards of commercial ethics’” because “‘[c]ommercial ethics’ are not maintained if businesses are able to conceal illegality.” Id. (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481-482 (1974)). Therefore, Kassab is entitled to estalblish that Pohl acquired the information he claims to be confidential trade secrMets – client lists and attorney-client contracts – through barratry by unlawfully paying Precision and its members to develop the lists of potential clients and solicitiing them to hire Pohl. If the client lists and contracts were procured by barratry, then Pohl cannot be a legal, equitable or rightful owner of the information. TEoX. CIV. PRAC. & REM. CODE § 134A.002(3-a). In that case, Pohl cannot show he mlade reasonable efforts to maintain the secrecy of the information because commiercial ethics are not maintained if Pohl is able to conceal his illegal barratry. Alderson, 718 F. Supp. 2d at 1200; A. Benjamini, Inc. v. Dickson, 2 S.W.3d 611, 613-14 (Tex. App. – Houston [14th Dist.] 1999, no pet.) (a person who obtains property by illegal means, such as theft, “acquires no title in the property”); Dynamic Prod. v. Cima Energy Ltd., No. 4:17-CV-01032, 2018 U.S. Dist. LEXIS 66987, at *21 (S.D. Tex. 2018) (company who obtained oil production by trespass was not rightful owner of property). Pohl also seeks attorney’s fees as damages under a “tort of another” theory. This theory has never been embraced by the Texas Supreme Court ankd it has been flatly rejected by the Houston Court of Appeals. Akin, Gump, StrauCss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009); Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Hiouston [14th Dist.] 2006, pet. denied). But to the extent it applies, it is an equitable doctrine that requires the claimant to be an innocent party. See Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14, 27 (Tex. App.—Corpus Christi 2013, pet. denied). Whether Pohl committed barratry is rellevant to establishing that he is not an innocent party, and negating Pohl’s cMlaimed damages under this theory. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Disti.] June 30, 2005, no pet.) (declining to decide whether exception applied, but holding even if it did, the plaintiff “is not a wholly innocent party” because the satoellite litigation resulted due to their conduct). Furthermorle, Pohl seeks his legal fees under TUTSA and exemplary damages,8 and can get th iem only if he proves willful and malicious misappropriation. TEX. CIV. PRAC. & REM. CODE § 134A.004(b), 134A.005(3). That means Pohl must establish that Kassab engaged in “intentional misappropriation resulting from the conscious disregard of the rights of the owner of the trade secret.” TEX. CIV. PRAC. & REM. CODE 8 First Amended Petition, ¶¶ 46-47. § 134A.002(7). Thus, Kassab’s intent is highly relevant. If Kassab believed that Pohl had committed barratry by paying Precision to acquire the information and, therefore, the information was property of Precision or Pohl had no legal, rightful or equitable title to the information, then Pohl cannot establish willful aknd malicious misappropriation. Thus, whether Pohl committed barratry – orC at least whether Kassab had a belief that Pohl did – is directly relevant to Pohl’s own affirmative claims. i Moreover, whether Pohl committed barratry is directly relevant to his proportionate responsibility. Under the statute, “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.” TEX. CIV. PRAC. & REM. CODE § 33.001. The trier of fact must consilder whether Pohl caused or contributed to causing “in any way the harm for wMhich recovery of damages is sought[.]” Id. at § 33.003(a)(1). Here, the harm for which recovery of damages is sought is the purported taking or misuse of Pohl’s allegiedly confidential information by Precision and others, and the alleged sale of that information to Kassab who, on behalf of his clients, brought barratry claimos against Pohl.9 Pohl seeks more than $2.4 million as “actual loss damages” thalt include “the reasonable fees and expenses [Pohl] incurred in defending [thei] underlying barratry and grievance proceedings that were made possible through the [alleged] misappropriation of Pohl’s trade secrets” plus the “the amount paid [by Pohl] under a settlement agreement [with Precision in the Mississippi litigation, which was $1 million] that should have prevented the further 9 First Amended Petition, at ¶ 29. [alleged] misappropriation of Pohl’s trade secrets.”10 Whether Pohl committed the barratry which gave rise to the barratry claim is relevant to establishing that Pohl is “in any way” responsible for the harm for which recovery of damages is sought. Id. at § 33.003(a)(1). k III. Evidence of Pohl’s barratrous conduct is directly rCelevant to Kassab’s affirmative defenses.  Whether barratry occurred is also relevant to sevteral of Kassab’s live affirmative defenses for which Kassab will be requesting jury findings at trial.11 Recognizing this fact, Pohl argues that “[a]s a matteer of law, ten of those defenses do not exist or do not apply in this case.”12 Thus, Puohl asks the Court to “find that the ten defenses … are not legally viable and will not be considered at trial.”13 The Court should not consider Pohl’s untimely raequest for summary judgment on Kassab’s affirmative defenses disguised a Rule 166(g) motion. Mason, 408 S.W.2d at 245. Regardless, Pohl cannot establiseh that Kassab’s affirmative defenses fail as a matter of law.14 A. Whether Pohl committed barratry is directly relevant to many oof Kassab’s defenses which Pohl has failed to conclusively negate. The unlawiful acts rule provides that “no action will lie to recover a claim for 10 ExhibitU 1, Pohl’s Amended Response to Disclosures, at 4. 11 Exhibit 2, Kassab’s Proposed Jury Charge. 12 Motion, p. 8. 13 Motion, p. 8. 14 In his Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab demonstrated that Pohl’s unlawful acts, criminal acts and the in pari delicto doctrines preclude Pohl’s claims as a matter of law. Kassab incorporates that argument and evidence as if set forth verbatim herein. Kassab also incorporates the argument and evidence relating to the unlawful acts doctrine (including illegal or criminal acts or in pari delicto) set forth on pages 9-14 of Nicholson’s Response to Plaintiffs’ Traditional and No-Evidence Motion for Summary Judgment, filed on September 12, 2022. damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party.” Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03 (1888). “Courts have interpreted this defense to mean that if the killegal act is inextricably intertwined with the claim and the alleged damageCs would not have occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of law.” Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Diallas 2006, pet. denied). Courts have applied the doctrine without a conviction of a crime so long as “the unlawful act barring the plaintiff's claim was in fact illegal conduct.” McNally v. McNally, No. 02-18-00142-CV, 2020 Tex. App. LEXIS 7211, at *27 (Tex. App.—Fort Worth Sep. 3, 2020, pet. denied) (mem. op.l). Pohl argues that the unlawful Macts doctrine is preempted by the proportionate responsibility statute, relying on Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013).15 But even Dugger recognized ithat unlawful acts doctrine still applied in certain contexts, like legal malpractice cases. Id. at 833 (“While some courts of appeals have extended that reasonoing to civil defendants bringing legal malpractice actions, we have not directly laddressed that issue.”). Thus, the Court expressly “limit[ed] the holding in th[ait] case to personal injury and wrongful death cases.” Id. at 833. This is not a personal injury or wrongful death case; it is a conversion and theft of trade secret case. In contexts outside the wrongful death and personal injury context, Texas courts have refused to allow a plaintiff to profit from his or her own 15 Motion, p. 9. illegal conduct. See Sharpe, 191 S.W.3d at 366 (precluding a plaintiff from recovering from an attorney after a finding that summary judgment evidence established that the plaintiff's conduct forming the basis of the underlying civil fraud claim was unlawful). Texas courts have specifically refused to enforce agreemenkts relating to the unlawful solicitation of clients under the unlawful acts ruCle. See Luong v. McAllister, No. 01-17-00198-CV, 2018 Tex. App. LEXIS 5998, at *7-8 (Tex. App.— Houston [1st Dist.] Aug. 2, 2018, pet. denied) (mem. op.). Aind when non-contractual claims are inextricably intertwined with contracts or agreements to do illegal acts, Texas courts have dismissed those claims as well because “no action may be predicated upon an admittedly unlawful act of the party asserting it.” Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 84l6, 855 (Tex. App.—Dallas 2008, no pet.) (barring “claims arising in tort becMause they are inextricably intertwined with [plaintiff’s] illegal contract to sell automobiles in Dallas County without a license.”); Villanueva v. Gonzalez, 123 S.iW.3d 461, 463 (Tex. App.—San Antonio 2003, no pet.) (holding claims for breach of fiduciary duty and fraud failed because they arose out of an illegal contract tohat violated the occupation code). Pohl arguesl that these doctrines do not apply because he “has not asserted any contract claimi against Kassab, nor do any of his tort claims involve enforcing the terms of an allegedly illegal contract.”16 But Pohl’s claims are inextricably intertwined with his unlawful agreement with Precision. Pohl alleges that he contracted with Precision to “to provide public relations services … to screen and 16 Motion, p. 10. 10 liaise with Pohl’s clients/prospective clients” – e.g. commit barratry – during which time “Precision gained access to Pohl’s [allegedly] confidential and proprietary information and property, included trade secret materials” – e.g. the client lists and contracts that Precision accumulated during its unlawful solicitation ekfforts.17 Pohl alleges that Precision “illegally misappropriated” this information Cand then “secretly sold” the information to Kassab,18 who then “solicited [Pohl’s] clients/prospective clients to act as plaintiffs … to bring cases against Pohl for ailleged barratry and other claims.”19 Pohl’s claims fail because “they are inextricably intertwined with [Pohl’s] illegal contract” with Precision. Denson, 262 S.W.3d at 855. B. Whether Pohl committed barratry is directly relevant to Kassab’s justification and immunity defenses which Pohl either fails to address or falils to negate. Recognizing that Kassab’s defeMnse of justification renders evidence relating to Pohl’s acts of barratry relevant, Pohl contends that justification “is not a defense to Pohl’s claims”20 because it is ani affirmative defense to a claim of tortious interference with contract.”21 But just because the defense is commonly applied to one type of claim does not mean, oas Pohl contends, that it is “not a recognized defense” to other types of claims, sulch as theft of trade secrets or conversion. In fact, justification is common appliied in conversion cases because the alleged theft must occur “without justification.” Morey v. Page, 802 S.W.2d 779, 787 (Tex. App.—Dallas 1990, no writ). 17 First Amended Petition, ¶ 20. 18 First Amended Petition, ¶ 21. 19 First Amended Petition, ¶ 29. 20 Motion, p. 10. 21 Motion, p. 11. 11 Regardless, Pohl conflates Kassab’s justification defense with the defense of immunity or privilege – which Pohl has failed to negate – and which further renders facts relating to Pohl’s barratry relevant to this litigation. 1. Barratry is relevant to Kassab’s defense of privkilege. The Texas Supreme Court has often looked to the RestaCtement (Third) of Unfair Competition and Restatement of Torts when defining Texas law governing trade secret claims. See Tex. Dep't of Pub. Safety v. Cox Teix. Newspapers, L.P., 343 S.W.3d 112, 126 n.5 (Tex. 2011); In re Union Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex. 2009). With respect to the issue of privilege, that Restatement provides: The existence of a privilege to disclose another's trade secret depends upon the circumstances of the particular case, including the nature of the information, the purpose of the dlisclosure, and the means by which the actor acquired the informaation. A privilege is likely to be recognized, for example, inM connection with the disclosure of information that is relevant to public health or safety, or to the commission of a crime or tort, or to other matters of substantial public concern. e REST. 3D OF UNFAIR COMPEOT f ITION, § 40, cmt. c (emphasis added); RESTATEMENT OF TORTS § 757 cmt. d (“A privilege to disclose may also be given by the law, independently of the other's consent, in order to promote some public interest.”). The Reporters’ Notesi to Section 40 indicate that “the policies underlying the privilege are similar to tohose supporting the numerous state and federal ‘whistleblower’ statutes that prohibit retaliatory personnel actions by employers against employees who disclose violations to public officials.” REST. 3D OF UNFAIR COMPETITION, § 40, Reporters' Notes, cmt. c. Here, even if the list identifying Pohl’s attorney-client agreements and lists 12 identifying Pohl’s clients and prospective clients are his trade secrets (and they are not), and even if Pohl kept that information confidential (and he did not), Kassab was privileged to obtain the information and use it to notify Pohl’s former clients or prospective clients that the way they were solicited to hire Pohl waks illegal and unethical. REST. 3D OF UNFAIR COMPETITION, § 40, cmt. c; PhiladeClphia Plaza-Phase II v. Bank of Am. Nat'l Trust & Sav. Assoc. No. 322, 2002 Phila. Ct. Com. Pl. LEXIS 13, 2002 WL 1472338, at *5 (Pa. Com. Pl. May 30, 2002) i(citing Section 757 of the Restatement of Torts to conclude that purported disclosure of trade secrets was “proper, if not privileged.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425 F. Supp. 130, 136 (D.N.J. 1977) (stating that “disclosure of trade secret information may itself be privileged” and concluding that it lwas). 2. Barratry is relevMant to Kassab’s defenses of attorney immunity and judicial proceedings privilege. Kassab is also immune ferom Pohl’s claims under the doctrines of attorney immunity and the judicial prfoceedings privilege, two defenses raised and established as a matter of law by Kassab,22 which Pohl fails to address in the instant Motion. Facts relating to whether Pohl committed barratry are directly relevant to those defenses. i Undeor the doctrine of attorney immunity, “an attorney does not have a right of 22 In his Traditional Motion for Summary Judgment filed June 8, 2021, Kassab established, as a matter of law, the attorney immunity defense. In the Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab established, as a matter of law, the judicial proceedings privilege and attorney immunity. Kassab incorporates those motions and the evidence attached thereto for all purposes herein. See TEX. R. CIV. P. 58. 13 recovery, under any cause of action, against another attorney arising from conduct the second attorney engaged in as part of the discharge of his duties in representing a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (emphasis added). “[A]n attorney is immune from liability to nkonclients for conduct within the scope of his representation of his clients.” YounCgkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct.” Id.i “That is, a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of client representation or render it ‘foreign to the duties of an attolrney.’” Id. at 483. Even “criminal conduct is not categorically excepted from the Mprotections of attorney civil immunity when the conduct alleged is connected with representing a client in litigation.” Bethel v. Quilling, Selander, Lownds, Wiinslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct may be wrongful but sotill fall within the scope of client representation”). The case Talylor v. Tolbert, 644 S.W.3d 637 (Tex. 2022) is instructive on why attorney immuinity applies here. In Taylor, the attorney was accused of violating state and federal laws prohibiting wiretapping because the attorney obtained and used the plaintiff’s communications in violation of the statute. Id. at 643. The plaintiff brought a statutory claim against the attorney which permitted recovery of civil damages. Id.; see also TEX. CODE CRIM. PROC. § 18A.502. The attorney moved for traditional 14 summary judgment, “arguing she is immune from liability as a matter of law because the plaintiffs’ claims all stem from her role as an attorney in the modification proceeding.” Id. at 644. The trial court agreed, but the court of appeals reversed. Id. The Supreme Court reversed the court of appeals. Id. It concluded thatk the attorney was, “in all respects, engaging in the office, professional training, sCkill, and authority of an attorney in the ways that she allegedly used and disclosed the materials her client provided.” Id. at 649. “Because [the attorney’s] condiuct falls squarely within the confines of attorney immunity, the alleged criminality or wrongfulness of the conduct does not perforce preclude its availability as an affirmative defense.” Id. The court also held that “Texas’s wiretap statute does not expressly repudiate the common law or the attorney-immunity defense.” Id.l Here too, Kassab’s conduct whicMh forms the basis of Pohl’s claims falls squarely within the confines of attorney immunity, regardless of whether it is alleged to have violated the TUTSA because tihat statute does not expressly repudiate the defense. Pohl is suing Kassab because he allegedly obtained purportedly stolen information in violation of the TUTSoA and then “solicited [Pohl’s] clients/prospective clients to act as plaintiffs … to lbring cases against Pohl for alleged barratry and other claims.”23 The essence ofi Pohl’s claims against Kassab are “that Kassab bought Pohl’s client list from [Precision] so that Kassab could send advertisements to Pohl’s former clients and solicit them to become Kassab’s clients in barratry suits against Pohl.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) 23 Amended Petition, ¶ 29. 15 (characterizing Pohl’s claims against Kassab). Pohl even seeks as damages “the reasonable fees and expenses incurred in defending [the] underlying barratry and grievance proceedings that were made possible through the misappropriation of Pohl’s trade secrets.”24 k Moreover, in this very case, the court of appeals opined tChat “the alleged purchase of Pohl[’s] client list for those clients’ contact information, followed by the mailing of attorney advertisementis to those individuals about specific types of claims they might be able to pursue against a specifically identified attorney, qualifies as statements or conduct that arose out of a commercial transaction involving the type of legal services Kassab provides.” Kassab, 612 S.W.3d atl 578 (emphasis added). The court opined that, “the intended audience of [KaMssab’s alleged] statement or conduct were individuals with potential legal claims who Kassab sought to represent in barratry suits against Pohli.” Id. at 579 (emphasis added). The acquisition of clients and filing of lawsuits are actions taken “to facilitate the rendition of legalo services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle Materials Tex., Incl., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15 (Tex. App.—Beaumoint Feb. 14, 2019, no pet.) (applying attorney immunity to attorney’s conduct which included “selling his legal services to the City as a potential client” and subsequent conduct which “occurred in the course of his undertaking to represent” those clients). The fact that Kassab is alleged to have committed the misconduct prior 24 Exhibit 1, Pohl’s Amended Responses to Disclosures, p. 4. 16 to any litigation is immaterial because “attorney immunity applies to claims based on conduct outside the litigation context[.]” Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, 467 S.W.3d at 485 (concluding that attorney was immune from conduct that occurred after litigation had enkded). In other words, Pohl’s characterization of Kassab’s activities as part of a buCsiness transaction that occurred prior to litigation does not negate attorney immunity because Kassab engaged in the conduct as part of his ultimate provision of liegal services to his client. See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying attorney immunity to lawyer conduct committed as part of business transaction). Indeed, in this case, the court of appeals concluded that all of Kassab’s conduct for which Pohl complains “arose out of a commercial transaction involvinlg the type of legal services Kassab provides.” Kassab, 612 S.W.3d at 57M8 (emphasis added). Pohl also fails to address or negate the judicial proceedings privilege. “The judicial-proceedings privilege iis an absolute privilege that covers any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, includinog statements made in open court, pre-trial hearings, depositions, affidavlits and any of the pleadings or other papers in the case.” Landry's, Inc. v. Animali Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021) (internal quotations omitted). “The judicial-proceedings privilege exists to facilitate the proper administration of the justice system. It does so by relieving the participants in the judicial process from fear of retaliatory lawsuits for statements they make in connection with the proceeding itself.” Id. at 48. It attaches even to “communications 17 preliminary to a proposed judicial proceeding” if “the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding.” Id. at 48-49. “Even in the pre-suit context, however, the privilegke protects communications that are themselves preparatory to tChe lawsuit.” Id. (emphasis added). The privilege protects all communications that are “necessary to set the judicial machinery in motion.” Id. at 50 (quoti nig RESTATEMENT (SECOND) OF TORTS § 586 cmt. a) (emphasis added). Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] … clients/prospective clients to act as plaintiffs … to bring cases against Pohl for alleged barratry and other claims.”25 Pohl admitsl that he is suing Kassab for statements Kassab made to prospective clients Mwhich spawned the litigation and grievance proceedings:26 25 Amended Petition, at ¶ 29. 26 Exhibit 3, December 2021 Deposition of Michael Pohl, at 122. 18 Because Pohl’s claims against Kassab arise out of communications that Kassab made in prospective (solicitation letters) and actual judicial proceedings (the barratry litigation and grievance process), Pohl’s claims against Kassab are barred by the judicial proceedings privilege. See Crain v. Smith, 22 S.W.3d 58, 62-63k (Tex. App.— Corpus Christi 2000, no pet.) (holding that statements in letteCr sent before the lawsuit began were protected by the judicial-proceedings privilege); Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00i055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.) (applying attorney immunity to claim that attorney engaged in “malicious conduct with respect to its illegal acquisition, retention, use, and threatened disclosure of [the plaintiff’s] proprietary and confidential inlformation” that “it knew to be stolen and proprietary in furtherance of its scMheme to extort, slander, and disparage [the plaintiff]” and “refusing to return and cease use of [the plaintiff’s] proprietary information”). i Both the defenses of attorney immunity and the judicial proceedings privilege necessarily require dioscussion of facts relating to Pohl’s barratry. In fact, Question No. 8 on Kassab’s lproposed jury charge incorporates these defenses and the concept of privilege anid asks “Did Kassab use or disclose Pohl’s information for the purpose of reporting, investigating, or filing a lawsuit relating to a suspected violation of law, a commission of a crime, or other matters of substantial public concern?”27 The question instructs the jury on Texas law relating to barratry.28 Thus, information 27 Exhibit 2, Kassab’s Proposed Jury Charge, p. 15. 28 Exhibit 2, Kassab’s Proposed Jury Charge, p. 15. 19 about whether barratry occurred and the facts and circumstances giving rise to the barratry litigation is relevant. Pohl’s contention that “whether barratry occurred” is “not legally relevant to the material issues in this case”29 is false. 3. Barratry is relevant to Kassab’s defenskes of immunity under Texas Rule of Disceiplinary Procedure 17.09. C The only immunity defense that Pohl does address is Kassab’s claim that he is immune under Rule 17.09 of the Texas Rules of Disciplinaryi Procedure.30 Pohl argues that “Pohl’s claims, and thus the lawsuit, are not predicated on Kassab’s involvement in the grievance process, [so] Rule 17.09 does not apply.”31 Kassab has already explained why this is not true and why he is entitled to immunity as a matter of law.32 Pohl has sued Kassab because Kassab allelgedly “used information from [Pohl’s] files in the grievance proceedings thatM [Kassab] personally filed or had clients file”33 and Pohl is suing Kassab to recover “the reasonable fees and expenses incurred in defending [the] underlying bairratry and grievance proceedings that were made possible through the misappropriation of Pohl’s trade secrets.”34 Thus, Pohl’s lawsuit is, at least in part, “poredicated upon the filing of a Grievance or participation in the attorney disciplin alry and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. Rule 17.09 proivides “absolute and unqualified” immunity for such conduct, which 29 Motion, p. 2. 30 Motion, p. 12-13. 31 Motion, p. 12. 32 In the Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab established, as a matter of law, the defense of immunity pursuant to Texas Rule of Disciplinary Procedure 17.09, Kassab also incorporates that motion and the evidence attached thereto. See TEX. R. CIV. P. 58. 33 December 2021 Deposition of Michael Pohl, at 122 (emphasis added). 34 Exhibit 1, Pohl’s Amended Responses to Disclosures, p. 4 (emphasis added). 20 “extends to all actions at law or in equity.” Id. Pohl argues that Rule 17.09 applies only to “certain officials connected to the State Bar” and not to Kassab because he “is not a State Bar official.”35 But the rule plainly applies to “the Complainant or witness” involved in the grievancke process. Id. (“No lawsuit may be instituted against any Complainant or wCitness predicated upon the filing of a Grievance or participation in the attorney disciplinary and disability system.”) (emphasis added). Pohl admits that Kassiab was both.36 Therefore, no lawsuit may be instituted against Kassab that is predicated upon Kassab’s involvement in the grievance process. See id. Because Pohl is suing Kassab to recover fees Pohl incurred defending the grievances filed by Kassab or his clients against Pohl, the claim is necessarily “predicated ulpon” the filing of the grievances, rendering immunity provided by the rule applicMable to Kassab. See id. Pohl concedes that a “small portion” of his damages “are connected to the grievance process” but argues ithat is insufficient to trigger Rule 17.09 because Pohl’s claims allege that Kassab engaged in other wrongful conduct unrelated to the grievance process.37 Bout under Rule 17.09, “[n]o lawsuit” may be instituted if it is “predicated upon” lthe filing of a grievance, and immunity “extends to all actions at law or in equitiy.” Id. Because at least part of Pohl’s claims and request for damages is predicated on the grievance proceedings, the entire suit is barred, regardless of whether Pohl alleges that Kassab engaged in otherwise tortious or wrongful conduct. 35 Motion, pp. 12-13. 36 December 2021 Deposition of Michael Pohl, at 122. 37 Motion, p. 13. 21 See Crampton v. Farris, 596 S.W.3d 267, 274-76 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (claim for destruction of evidence related to grievance proceeding barred by immunity); Burch v. State Bar of Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS 1409, at *3 (Tex. App.—Amarillo Feb. 19, 2020, pet. denied) (lawksuit against attorneys for commission who purportedly “engaged in misconCduct related to a bankruptcy proceeding in which [plaintiff] was involved” was barred by immunity because it occurred in relation to a grievance proceeding). i Accordingly, whether Pohl committed barratry and Kassab’s participation in the grievance process relating to Pohl’s barratry is relevant to Kassab’s Rule 17.09 defense, and thus the instant Motion should be denied. 4. Barratry is relevant lto Kassab’s defenses of unclean hands. a The doctrine of unclean hands applies to claims involving equitable remedies. See In re Nolle, 265 S.W.3d 48e7, 494 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding). Pohl initially sofught “injunctive relief”38 and it is well-established that “[i]njunctive relief is an equitable remedy.” Fetter v. Wells Fargo Bank Tex., N.A., 110 S.W.3d 683, 688 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (emphasis added). Recogniziing this, Pohl argues that he “previously pled injunctive relief in his petition, to ostreamline issues for trial, Pohl will no longer seek this relief.”39 But Pohl has not filed any amendment, and thus the claim seeking equitable relief is still live, rendering Kassab’s unclean hands defense applicable. Moreover, Pohl has pursued 38 First Amended Petition, at ¶ 45. 39 Motion, p. 14. 22 claims under TUTSA, which requires a person claiming ownership of a trade secret to demonstrate “legal, or equitable” title to the information. See TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a) (emphasis added). Because Pohl’s claim to ownership of the information is grounded in equity, Kassab is entitled to show Pkohl’s unclean hands after engaging in his illegal barratry scheme to acquire theC information that Pohl claims are his trade secrets. CONCLUSION AND PRAYER D i For these reasons, Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm ask the Court to deny Plaintiffs’ Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants. l MTHE KASSAB LAW FIRM /s/ David Eric Kassab e David Eric Kassab i Texas State Bar No. 24071351 f 1214 Elgin Street Houston, Texas 77004 Telephone: (713) 522-7400 o E-service: eserve@kassab.law l FOGLER, BRAR, O’NEIL & GRAY, LLP i /s/ Murray Fogler o Murray Fogler mfogler@foglerbrar.com Texas State Bar No. 07207300 909 Fannin, Suite 1640 Houston, Texas 77002 (713) 481-1010 (713) 574-3224 (Fax) ATTORNEYS FOR KASSAB DEFENDANTS 23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document has been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 13th day of August, 2023. /s/ David Eric Kassab k David Eric Kassab e 24 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. David Kassab Bar No. 24071351 david@kassab.law r Envelope ID: 78474030 Filing Code Description: Answer/ Response / Waiver Filing Description: Kassab Defendants' Response to Plaintiffst' Rule 166(g) Motion i Status as of 8/14/2023 8:18 AM CST s Case Contacts  Name BarNumber Email g TimestampSubmitted Status Todd Taylor ttaylor@jandflaw.com 8/13/2023 12:21:33 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT Jean C.Frizzell jfriazzell@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT Harris Wells hwells@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT Todd Taylor ttaylor@jandflaw.com 8/13/2023 12:21:33 PM SENT Scott M.Favre c scott@favrepa.com 8/13/2023 12:21:33 PM SENT Lawyer Wade f lawyerwade@hotmail.com 8/13/2023 12:21:33 PM SENT Chris C.Pappas  cpappas@krcl.com 8/13/2023 12:21:33 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 8/13/2023 12:21:33 PM SENT Non-Party Dona Pohl C DonaLyann@yahoo.com 8/13/2023 12:21:33 PM SENT Non-Party Edgar Jaimesa edgarsroom@gmail.com 8/13/2023 12:21:33 PM SENT Lance Kassab lance@kassab.law 8/13/2023 12:21:33 PM SENT David Kassab o david@kassab.law 8/13/2023 12:21:33 PM SENT Nicholas PiercUe nicholas@kassab.law 8/13/2023 12:21:33 PM SENT Lance Kassab eserve@kassab.law 8/13/2023 12:21:33 PM SENT Andrea Mendez andrea@kassab.law 8/13/2023 12:21:33 PM SENT Murray JFogler mfogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT Murray Fogler mfogler@fbfog.com 8/13/2023 12:21:33 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 8/13/2023 12:21:33 PM SENT Benjamin Ritz britz@thompsoncoe.com 8/13/2023 12:21:33 PM SENT Dale Jefferson 10607900 jefferson@mdjwlaw.com 8/13/2023 12:21:33 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. David Kassab Bar No. 24071351 david@kassab.law r Envelope ID: 78474030 Filing Code Description: Answer/ Response / Waiver Filing Description: Kassab Defendants' Response to Plaintiffst' Rule 166(g) Motion i Status as of 8/14/2023 8:18 AM CST s Case Contacts  Raul Herman Suazo 24003021 suazo@mdjwlawg.com 8/13/2023 12:21:33 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 8/13/2023 12:21:33 PM SENT D Kassab david@kassab.law 8/13/2023 12:21:33 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT Murray J. Fogler 7207300 mfaogler@foglerbrar.com 8/13/2023 12:21:33 PM SENT Thallia Malespin tmalespin@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT L Kassab c lance@kassab.law 8/13/2023 12:21:33 PM SENT Kelly Skelton f reception@kassab.law 8/13/2023 12:21:33 PM SENT Harris Wells  hwells@reynoldsfrizzell.com 8/13/2023 12:21:33 PM SENT

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