Day on Torts
When a lawyer files a lawsuit on behalf of a client, he is not exercising his own right to petition, and a later legal malpractice claim related to that underlying lawsuit is not subject to dismissal under the Tennessee Public Protection Act.
In Cartwright v. Hendrix, No. W2022-01627-SC-R11-CV (Tenn. Dec. 9, 2025), the Tennessee Supreme Court considered the issue of whether a lawyer sued for legal malpractice could invoke the TPPA to seek dismissal of the case. The defendants in this case represented the plaintiff in multiple lawsuits related to the administration of a trust. After over ten years of unsuccessful litigation, the plaintiff filed this legal malpractice case against the defendants.
The defendant lawyers filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”). The defendants argued that the claims related to their right to petition and were thus covered by the TPPA. The trial court found that the TPPA did not apply, but the Court of Appeals reversed that holding. In this opinion, the Tennessee Supreme Court ruled that the TPPA did not apply because the lawyers were not exercising their own right to petition.
A defendant who seeks dismissal under the TPPA must first “make a prima facie case that the challenged lawsuit is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.” (internal citation and quotation omitted). If the defendant succeeds, the plaintiff must then make a “prima facie case for each essential element of his claim.” (internal citation omitted).
Here, the defendant lawyers argued that “their commencement on behalf of [the plaintiff] meets the statutory definition of the ‘exercise of the right to petition.’” The Supreme Court wrote that the case “hinge[d] on whether an attorney bringing a lawsuit on behalf of others is engaged in his own exercise of the right to petition.” In analyzing this issue, the Court looked to “the nature of the attorney-client relationship,” which it stated was governed by agency law. The Court explained that “when an agent acts within the scope of the authority the principal has delegated, it is as if the principal has acted,” and that attorneys are not personally liable to third parties for agreements entered into on behalf of their clients. (internal citation omitted). The Court wrote that these principles supported the finding that “when an attorney files a lawsuit on behalf of a client, it is the client who files the lawsuit, not the attorney.” Thus, if the right to petition is exercised, it is the client exercising that right.
The Supreme Court concluded:
In sum, a lawyer who files a lawsuit on behalf of a client is not personally exercising the right to petition within the meaning of the TPPA. When the lawyer’s client sues the lawyer for malpractice and fraudulent concealment based on that litigation, the lawyer cannot show that the client’s lawsuit is “based on, relates to, or is in response to [the lawyer’s] exercise of the . . . right to petition.” Tenn. Code Ann. § 20-17-105(a). He therefore may not obtain dismissal of the lawsuit under the TPPA on those grounds.
The defendants’ TPPA petition was accordingly denied.
On the same day, the Tennessee Supreme Court released a short related opinion in Garner v. Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC, No. W2022-01636-SC-R11-CV (Tenn. Dec. 9, 2025). This case was filed against the same lawyers, but by the party who was successful in the underlying trust litigation. Because the plaintiff was not the defendants’ client, this case was based on the tort of another theory, but it was still based on the trust lawsuits filed by the defendant attorneys. Referring to its opinion in the accompanying Cartwright case, the Court ruled that the TPPA petition filed by the defendant lawyers failed because the lawyers were not exercising their own right to petition, and the TPPA therefore did not apply.
These opinions contain a well-reasoned analysis of the TPPA, a much-litigated statute in Tennessee. These cases now provide clarity that a lawyer faced with a legal malpractice claim (or any claim related to his representation of a client) most likely cannot use the TPPA to obtain early dismissal.
These opinions were released eight months after oral arguments.