Terisa Taylor v. Carl Tolbert, Nizzera Kimball and Vivian Robbins ( 2022 )


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  •            Supreme Court of Texas
    ══════════
    No. 20-0727
    ══════════
    Terisa Taylor,
    Petitioner,
    v.
    Carl Tolbert, Nizzera Kimball and Vivian Robbins,
    Respondents
    ═══════════════════════════════════════
    On Petition for Review from the
    Court of Appeals for the Fourteenth District of Texas
    ═══════════════════════════════════════
    Argued February 1, 2022
    JUSTICE DEVINE delivered the opinion of the Court.
    Under Texas law, attorneys are generally immune from civil
    liability to nonclients for actions taken within the scope of legal
    representation if those actions involve “the kind of conduct” attorneys
    engage in when discharging their professional duties to a client. 1 In
    recent years, we have had several occasions to consider the scope of this
    common-law immunity defense. When presented with the question, we
    1 See Landry’s, Inc. v. Animal Legal Def. Fund, 
    631 S.W.3d 40
    , 51 (Tex.
    2021); Cantey Hanger, LLP v. Byrd, 
    467 S.W.3d 477
    , 482 (Tex. 2015).
    have held that the immunity inquiry focuses on the function and role
    the lawyer was performing, not the alleged wrongfulness, or even
    asserted criminality, of the lawyer’s conduct. 2 The nuance presented
    here is whether an exception exists for private-party civil suits asserting
    that a lawyer has engaged in conduct criminalized by statute.
    We hold that, when conduct is prohibited by statute, the
    attorney-immunity defense is neither categorically inapplicable nor
    automatically available, even if the defense might otherwise cover the
    conduct at issue. In such cases, whether an attorney may claim the
    privilege depends on the particular statute in question. That being so,
    the attorney in this case is only entitled to partial immunity on civil
    claims alleging she violated state and federal wiretap statutes by “using”
    and “disclosing” electronic communications illegally “intercepted” by her
    client and others. Immunity attaches to the state claims because the
    Texas wiretap statute does not expressly, or by necessary implication,
    abrogate the immunity defense, and the attorney met her burden to
    establish its applicability to the conduct at issue. But immunity does
    not attach to the federal claims because the federal wiretap statute is
    worded differently, and informative federal authority (sparse as it is)
    persuades us that federal courts would not apply Texas’s common-law
    attorney-immunity defense to a claim under that statute. We thus
    affirm the court of appeals’ judgment that the attorney-immunity
    defense is inapplicable to the federal wiretap claims but reverse and
    render judgment for the attorney on the state wiretap claims.
    2Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 
    595 S.W.3d 657
    -58 (Tex. 2020); Youngkin v. Hines, 
    546 S.W.3d 675
    , 681 (Tex. 2018);
    Cantey Hanger, 467 S.W.3d at 481 & 485.
    2
    I. Background
    The      underlying     dispute    originates    from      a   child-custody
    modification proceeding between Mark Broome and Vivian Robbins
    regarding their child, N.B. Attorney Terisa Taylor represented Broome
    in the highly acrimonious family-law case.
    In the midst of the modification proceeding, 3 N.B. visited her
    aunt, Fiona McInally, in the summer of 2013. At some point, an iPad
    belonging to McInally began receiving text messages and emails
    between Robbins and at least thirty other individuals, all of whom were
    unaware this was happening and none of whom consented. How this
    happened remains something of a mystery, but there appears to be no
    dispute that N.B. had signed into her aunt’s iPad using Robbins’s email
    address and password to download an app. After discovering the text
    messages, McInally or her husband (Broome’s brother) mailed the iPad
    to Broome, who obtained Robbins’s text messages and emails from the
    iPad and shared them with Taylor for use in the modification
    proceeding.
    Robbins and several of her interlocutors, including Carl Tolbert
    and Nizzera Kimball, 4 sued Taylor and others for violating the federal
    and Texas wiretap statutes. 5 Wiretapping is a criminal offense under
    3Although the allegations in this civil suit are disputed, the applicable
    standard of review requires us to accept the allegations as true. City of
    Magnolia 4A Econ. Dev. Corp. v. Smedley, 
    533 S.W.3d 297
    , 301 (Tex. 2017).
    We relay them accordingly.
    4   The other plaintiffs are not parties to this appeal.
    5The other defendants, including Broome, have since settled, leaving
    Taylor the sole remaining defendant.
    3
    federal and state law, 6 but both statutory schemes permit private
    parties to pursue civil redress for violations of the penal statutes. 7 The
    federal statute provides a civil cause of action for “any person whose
    wire, oral, or electronic communication is intercepted, disclosed, or
    intentionally used in violation of this chapter[.]” 8 Texas likewise grants
    a private right of action for “[a] person whose wire, oral, or electronic
    communication is intercepted, disclosed, or used in violation of” certain
    statutes, including Chapter 16 of the Penal Code and Chapter 18A of the
    Code of Criminal Procedure. 9              Robbins, Tolbert, and Kimball
    (collectively, Robbins) alleged that Taylor had improperly “used” and
    “disclosed” illegally “intercepted” electronic communications in the
    following particulars:
    •   received the text messages and emails her client, Broome,
    shared with her;
    •   produced a CD containing data from the iPad to Robbins’s
    attorney;
    •   told opposing counsel that “she and her client were in
    possession of everything Ms. Robbins had communicated to
    others, including a nude photograph that Ms. Robbins had
    sent via text message to her boyfriend”;
    •   told opposing counsel that she intended to use the nude
    photograph as a poster-size demonstrative in the jury trial;
    6   
    18 U.S.C. § 2511
    (1); TEX. PENAL CODE § 16.02.
    7   
    18 U.S.C. § 2520
    (a); TEX. CODE CRIM. PROC. art. 18A.502.
    8   
    18 U.S.C. § 2520
    (a).
    9  TEX. CODE CRIM. PROC. art. 18A.502(1). Chapter 18A and Chapter 16
    of the Penal Code prohibit wiretapping.
    4
    •   told opposing counsel to advise Robbins to “sign an agreed
    order resolving the custody case and agreeing to supervised
    visitation only or this evidence would be used against her”;
    •   “filed an unusual pleading entitled ‘Notice of Intent to Use
    Demonstrative Evidence’[,] which said that Mark Broome
    intended to use . . . [a] ‘Power Point presentation and large
    photo board’” at trial;
    •   for at least six months, “used information gleaned from the
    illegally intercepted communications in several family
    court hearings and to conduct discovery in the child
    custody modification case . . . prior to Ms. Robbins
    becoming aware of the interception,” which she learned
    about when Taylor produced 617 pages of Robbins’s text
    messages to her attorney and when Broome filed a pleading
    referencing the content of Robbins’s email messages;
    •   “[repeatedly] used and disclosed the contents of those
    intercepted electronic communications to the court and in
    [] pleadings in the modification case”;
    •   “provided Fiona McInaly’s [sic] iPad to Pathway Forensics,
    LLC for examination”; 10 and
    •   used the illegally intercepted communications on
    McInally’s iPad to obtain a court order authorizing
    Pathway Forensics to make a copy of Robbins’s electronic
    devices. 11
    10Pathway Forensics is a computer forensics company that Broome had
    retained as an expert witness. Robbins sued Pathway, and the court of appeals
    ruled favorably to Robbins on those claims, but Pathway did not file a petition
    for review in this Court. Taylor and Robbins report that the claims against
    Pathway have been settled.
    11 The trial court ordered Pathway to “properly and noninvasively
    create backup images of all drives and media in the custody of [Robbins], via
    her I-phone/cell phones [sic], I-Pad [sic], Laptop and/or home computer, that
    5
    Notably, the petition does not allege any facts suggesting that Taylor
    played a role in the alleged “interception” of Robbins’s electronic
    communications or that she advised Broome or others to take these
    actions. Rather, the factual allegations against Taylor are limited to her
    “use” and “disclosure” of those communications in the modification
    proceeding.
    Taylor moved for traditional summary judgment solely on the
    pleadings, 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. 12       The trial court agreed and rendered a
    take-nothing summary judgment for Taylor.
    In a split decision, the court of appeals reversed and remanded. 13
    After noting that our attorney-immunity decisions in Cantey Hanger,
    LLP v. Byrd 14 and Youngkin v. Hines 15 neither “involved alleged
    criminal conduct by an attorney” nor extended attorney immunity to
    criminal conduct, the majority summarily determined that “[a] criminal
    violation of either [the federal or state wiretap] statute would be ‘foreign
    to the duties of an attorney’ and thus precludes application of
    attorney[]immunity.” 16
    may contain electronic data relevant to the issues in this matter, except any
    attorney client privilege matters.”
    12   See TEX. R. CIV. P. 166a(c).
    13   
    629 S.W.3d 318
    , 327, 334 (Tex. App.—Houston [14th Dist.] 2020).
    14   
    467 S.W.3d 477
     (Tex. 2015).
    15   
    546 S.W.3d 675
     (Tex. 2018).
    16   629 S.W.3d at 327.
    6
    Examining our attorney-immunity precedent in more detail, the
    dissent found the majority’s holding to be directly adverse to Bethel v.
    Quilling, Selander, Lownds, Winslett & Moser, P.C., 17 in which we
    rejected the invitation to create a “criminal conduct” exception to the
    attorney-immunity defense and applied the defense to litigation conduct
    alleged to be criminal in nature. 18                The dissent then cited two
    independent reasons to affirm summary judgment for Taylor. First, the
    dissent declared Robbins’s petition fatally deficient in failing to plead
    facts showing Taylor had engaged in conduct violating the wiretap
    statutes. 19 As to that matter, the dissent noted the absence of factual
    allegations        showing    (1) “contemporaneous         acquisition     of    the
    communication when it was sent,” as required to establish an
    “interception,” and (2) that Taylor knew, should have known, or was
    reckless      in   disregarding    that       the   communications       had    been
    “intercepted,” as required to make “use” or “disclosure” of “intercepted”
    communications impermissible. 20 Second, even if Robbins had pleaded
    sufficient facts to state a claim under the wiretap statutes, Taylor’s
    alleged conduct fell directly within the scope of her representation of
    Broome in the modification proceeding and was not “foreign to the duties
    17   
    595 S.W.3d 651
     (Tex. 2020).
    18   629 S.W.3d at 339-40 (Frost, C.J., dissenting).
    19 Id. at 345. Taylor did not argue or brief that issue here or in the
    courts below, so we do not address it.
    20Id. at 341-45 & nn.64-78; see, e.g., Babb v. Eagleton, 
    616 F. Supp. 2d 1195
    , 1206 (N.D. Okla. 2007) (“[I]f no unlawful interception initially occurred,
    there can be no liability for subsequent use or disclosure of the interceptions
    by Attorney and Law Firm.”).
    7
    of an attorney.” 21 Applying Bethel, which the majority failed to discuss
    or cite, the dissent concluded that, as a matter of law, attorney immunity
    protects Taylor from civil liability because the conduct about which
    Robbins complains involved Taylor’s rendition of legal services to a
    client in the course of litigation. 22
    We granted Taylor’s petition for review to further refine the
    boundaries of the attorney-immunity defense. The principal matter in
    dispute is whether the immunity defense applies to alleged conduct that,
    if proven, is criminalized by statute.
    II. Discussion
    As the summary-judgment movant on an affirmative defense,
    Taylor bears the burden of conclusively establishing that attorney
    immunity bars the plaintiffs’ recovery on the claims asserted. 23 “The
    only facts required to support an attorney-immunity defense are the
    type of conduct at issue and the existence of an attorney–client
    relationship at the time” the attorney engaged in the conduct. 24 We
    must then decide “the legal question of whether said conduct was within
    the scope of representation.” 25 Because Taylor moved for summary
    judgment on the pleadings, we must take the allegations in Robbins’s
    21   629 S.W.3d at 345 (Frost, C.J., dissenting).
    22   Id. at 345-46.
    23 Cantey Hanger, 467 S.W.3d at 481; Provident Life & Accident Ins. Co.
    v. Knott, 
    128 S.W.3d 211
    , 215-16 (Tex. 2003).
    24   Youngkin, 546 S.W.3d at 683.
    25   Id.
    8
    petition as true, and we will uphold summary judgment for Taylor only
    if she is entitled to judgment as a matter of law. 26
    A. Scope of Attorney-Immunity Defense
    The common-law attorney-immunity defense applies to lawyerly
    work in “all adversarial contexts in which an attorney has a duty to
    zealously and loyally represent a client” but only when the claim against
    the attorney is based on “the kind of conduct” attorneys undertake while
    discharging their professional duties to a client. 27 Stated inversely, if
    an attorney engages in conduct that is not “lawyerly work” or is “entirely
    foreign to the duties of a lawyer” or falls outside the scope of client
    representation, the attorney-immunity defense is inapplicable. 28
    In determining whether conduct is “the kind” immunity protects,
    the inquiry focuses on the type of conduct at issue rather than the
    alleged wrongfulness of that conduct. 29 But when the defense applies,
    counsel is shielded only from liability in a civil suit, not from “other
    mechanisms” that exist “to discourage and remedy” bad-faith or
    wrongful conduct, including sanctions, professional discipline, or
    criminal penalties, as appropriate. 30
    26Perry v. S.N., 
    973 S.W.2d 301
    , 303 (Tex. 1998); see City of Magnolia
    4A Econ. Dev. Corp., 533 S.W.3d at 301; TEX. R. CIV. P. 166a(c).
    27  Haynes & Boone, LLP v. NFTD, LLC, 
    631 S.W.3d 65
    , 67 (Tex. 2021);
    see, e.g., Landry’s, 631 S.W.3d at 47; Cantey Hanger, 467 S.W.3d at 481.
    28   Landry’s, 631 S.W.3d at 47, 51-53; Youngkin, 546 S.W.3d at 681.
    29   Landry’s, 631 S.W.3d at 47.
    30E.g., Bethel, 595 S.W.3d at 657-58; Youngkin, 546 S.W.3d at 679,
    682-83; Cantey Hanger, 467 S.W.3d at 482, 484-86; Kruegel v. Murphy, 
    126 S.W. 343
    , 344-45 (Tex. App.—Dallas 1910, writ ref’d).
    9
    Conduct is not the kind of conduct attorney immunity protects
    “simply because attorneys often engage in that activity” or because an
    attorney performed the activity on a client’s behalf. 31             Rather, the
    conduct must involve “the uniquely lawyerly capacity” and the
    attorney’s skills as an attorney. 32 For example, a lawyer who makes
    publicity statements to the press and on social media on a client’s behalf
    does “not partake of ‘the office, professional training, skill, and authority
    of   an      attorney’”   because    “[a]nyone—including         press    agents,
    spokespersons, or someone with no particular training or authority at
    all—can publicize a client’s allegations to the media.” 33             Immunity
    attaches only if the attorney is discharging “lawyerly” duties to his or
    her client. 34
    A corollary to this principle is that attorneys will not be entitled
    to civil immunity for conduct that is “entirely foreign to the duties of an
    attorney.” “Foreign to the duties” does not mean something a good
    attorney should not do; it means that the attorney is acting outside his
    or her capacity and function as an attorney. 35 For that reason, whether
    31   Landry’s, 631 S.W.3d at 52.
    32See id. at 51-53 (emphasis added) (quoting Cantey Hanger, 467
    S.W.3d at 482).
    33   Id. at 51-52 (quoting Cantey Hanger, 467 S.W.3d at 482).
    34   Cantey Hanger, 467 S.W.3d at 481.
    35  E.g., Youngkin, 546 S.W.3d at 681; Cantey Hanger, 467 S.W.3d at 482,
    487; see Poole v. Hous. & T.C. Ry. Co., 
    58 Tex. 134
    , 137 (1882) (holding that an
    attorney who had assumed ownership of a third party’s goods “with the
    intention of consummating [a] fraud” on a third party “will not be heard to deny
    his liability to [the third party] for the loss sustained by reason of his wrongful
    acts, under the privileges of an attorney at law, for such acts are entirely
    10
    counsel may claim the privilege turns on the task that was being
    performed, not whether the challenged conduct was meritorious.
    This is so because the interests of clients demand that lawyers
    “competently, diligently, and zealously represent their clients’ interests
    while avoiding any conflicting obligations or duties to themselves or
    others.” 36 To prevent chilling an attorney’s faithful discharge of this
    duty, lawyers must be able to pursue legal rights they deem necessary
    and proper for their clients without the menace of civil liability looming
    over them and influencing their actions. 37 Attorney immunity furthers
    “loyal,          faithful,     and      aggressive       representation”         by
    “essentially . . . removing       the   fear   of   personal   liability,” 38   thus
    “alleviating in the mind of [an] attorney any fear that he or she may be
    sued by or held liable to a non-client for providing . . . zealous
    representation.” 39 In this way, the defense protects not only attorneys
    but also their clients, who can be assured that counsel is representing
    the client’s best interests, not the lawyer’s.
    foreign to the duties of an attorney”); Dixon Fin. Servs., Ltd. v. Greenberg,
    Peden, Siegmyer & Oshman, P.C., No. 01–06–00696–CV, 
    2008 WL 746548
    , at
    *9 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“The signing and filing
    of an application for a temporary restraining order to aid in the recovery of
    monies owed to a client under an arbitration award is not conduct ‘foreign to
    the duties of an attorney’ and is the kind of conduct protected from liability.”).
    36   Haynes & Boone, 631 S.W.3d at 79.
    37   See Cantey Hanger, 467 S.W.3d at 483.
    38   Youngkin, 546 S.W.3d at 682.
    39   Haynes & Boone, 631 S.W.3d at 79.
    11
    Because the wrongfulness of the attorney’s conduct is not the
    focus of the immunity inquiry, 40 we held in Cantey Hanger that conduct
    alleged to be fraudulent does not necessarily fall outside the scope of the
    attorney-immunity defense. 41        We explained that a “general fraud
    exception” would “significantly undercut” the purposes of the defense 42
    by allowing lawyers to be sued for discharging their lawyerly duties if
    the plaintiff characterizes the attorney’s conduct as fraudulent. 43 But
    “[m]erely 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 attorney.’” 44
    In Bethel, we extended this principle to allegations of criminal
    conduct. There, the plaintiff had urged us “to recognize an exception” to
    attorney immunity “whe[n] a third party alleges that an attorney
    engaged in criminal conduct during the course of litigation.” 45 We again
    rejected the invitation to adopt an exception or state a categorical rule
    because doing so would allow plaintiffs to avoid the attorney-immunity
    defense through artful pleading—“by merely alleging that an attorney’s
    Id. at 78; Bethel, 595 S.W.3d at 658; Youngkin, 546 S.W.3d at 681;
    40
    Cantey Hanger, 467 S.W.3d at 481.
    41   467 S.W.3d at 484-86.
    42   Id. at 483.
    43   Landry’s, 631 S.W.3d at 47 (quoting Cantey Hanger, 467 S.W.3d at
    482).
    Bethel, 595 S.W.3d at 657 (alteration in original) (quoting Cantey
    44
    Hanger, 467 S.W.3d at 483-84).
    45   Id.
    12
    conduct was ‘criminal.’” 46 Like the fraud exception that Cantey Hanger
    declined to embrace, Bethel eschews a categorical exception for criminal
    conduct because such an exception would defeat the purposes of the
    attorney-immunity defense. 47 Instead, we held that conduct alleged to
    be criminal in nature “is not categorically excepted from the protections
    of attorney civil immunity when the conduct alleged is connected with
    representing a client in litigation.” 48 As we explained there, a lawyer
    who is doing his or her job is not more susceptible to civil liability just
    because a nonclient asserts that the lawyer’s actions are fraudulent,
    wrongful, or even criminal. 49
    Even so, we acknowledged then, as we do now, that “there is a
    wide range of criminal conduct that is not within the ‘scope of client
    representation’ and [is] therefore ‘foreign to the duties of an attorney.’” 50
    But when that is the case, the circumstances do not give rise to an
    “exception” to the immunity defense; rather, such conduct simply fails
    to satisfy the requirements for invoking the defense in the first
    instance. 51      As Bethel makes clear, our approach to applying the
    46   Id.
    47   Id.
    48   Id. (citations omitted).
    49   Id. (quoting Youngkin, 546 S.W.3d at 681).
    50   Id. at 658.
    51   Id.
    13
    attorney-immunity defense remains functional, not qualitative, and
    leaves an attorney’s improper conduct addressable by public remedies. 52
    Robbins nonetheless campaigns for a “narrow exception” to
    immunity for civil liability that arises from a statute criminalizing
    conduct. As Robbins notes, none of our precedent has involved similar
    claims, and she contends that a common-law defense, like attorney
    immunity, cannot be engrafted onto a statutory scheme unless the
    statute expressly adopts the defense.         Separately, and in addition,
    Robbins asserts that Taylor’s alleged conduct was “foreign to the duties
    of an attorney” because it is criminal in nature. We address these
    arguments below.
    B. Application to Taylor’s Conduct
    We first consider whether Taylor’s conduct is encompassed by the
    attorney-immunity defense at all. This is a legal question we determine
    from the facts Robbins has alleged, which we take as true under the
    applicable standard of review. 53 Focusing only on “the kind” of conduct,
    as we must, the standard for attorney immunity is easily satisfied on
    the pleaded allegations because Taylor’s conduct was (1) within the
    52 While the potential for sanctions, professional discipline, and
    criminal responsibility might be equally, if not more, concerning to an attorney
    than the potential for civil liability, the public oversight required to pursue
    such penalties helps ensure that attorneys discharging their duties are not
    subject to the threat of litigation by anyone who might take issue with the
    attorney’s performance on behalf of his or her client in the course and scope of
    legal representation. If an attorney’s conduct in his or her capacity as an
    attorney is wrongful, recourse is public, not private.
    53   See supra n.3.
    14
    scope of her representation of Broome in the modification proceeding
    and (2) not foreign to the duties of a lawyer.
    Acquiring materials from a client pertaining to a matter in
    dispute and reviewing, copying, retaining custody of, analyzing, and
    producing those materials are paradigmatically “the provision of ‘legal’
    services involving the unique office, professional skill, training, and
    authority of an attorney.” 54 So too is all the other conduct about which
    Robbins complains. Using information acquired from a client to conduct
    discovery, in pleadings, in communications with the court, and to obtain
    a court order; attempting to use that information as demonstrative
    evidence at trial; and providing materials to an expert witness all fall
    squarely within the scope of Taylor’s representation of Broome in the
    modification proceeding. 55 Likewise, making a demand on a client’s
    behalf—such as Taylor’s insistence that Robbins sign a proposed order
    resolving the dispute—is also within the realm of legal representation. 56
    In engaging in these activities, Taylor acted on behalf of her client in a
    54   Haynes & Boone, 631 S.W.3d at 78.
    55Cf. Bethel, 595 S.W.3d at 658 (“Thus, at bottom, Bethel takes issue
    with the manner in which Quilling examined and tested evidence during
    discovery in civil litigation while representing Bethel’s opposing party. These
    are paradigmatic functions of an attorney representing a client in litigation.”).
    56See Youngkin, 546 S.W.3d at 684 (“The conduct Hines complains of—
    negotiating and entering a settlement agreement . . . —falls within the scope
    of Youngkin’s representation . . . and is not foreign to the duties of a lawyer.”);
    Highland Cap. Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05–15–00055–
    CV, 
    2016 WL 164528
    , at *6 (Tex. App.—Dallas Jan. 14, 2016, pet. denied)
    (mem. op.) (holding that actions including “making demands on the client’s
    behalf, advising a client to reject counter-demands, speaking about an
    opposing party in a negative light, advising a client on a course of action, and
    even threatening particular consequences” are within the scope of an
    attorney’s legal representation of a client).
    15
    lawyerly capacity because conducting discovery, filing pleadings,
    obtaining court orders, and seeking the admission of evidence are the
    kinds of actions that lawyers undertake in representing a client. Taylor
    engaged in this conduct in connection with her duties as a lawyer in the
    adversarial context of the modification proceeding where her client’s
    objective was to secure enhanced custodial rights. 57
    Considering all the allegations in Robbins’s petition, Taylor was,
    in all respects, engaging in “the office, professional training, skill, and
    authority of an attorney” in the ways that she allegedly used and
    disclosed the materials her client provided. Because Taylor’s conduct
    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. 58
    This conclusion does not, however, terminate the analysis. We
    must also consider Robbins’s argument that the common-law
    attorney-immunity defense is unavailable—either categorically or
    specifically—as a defense to her statutory claims.         In Bethel, no
    statutory causes of action were pressed against the attorney—it is a
    spoliation case. But the source of the plaintiff’s claim, whether under
    the common law or a statute, does not, alone, nullify the immunity
    defense. That being the case, if attorney immunity is unavailable here,
    it is only because the specific statutes at issue—the state and federal
    wiretap statutes—preclude it. On that score, we do not agree with
    Robbins that the defense is only available if a statute expressly adopts
    57   Haynes & Boone, 631 S.W.3d at 78.
    58   See Bethel, 595 S.W.3d at 657.
    16
    it, and we hold that the Texas wiretap statute does not abrogate the
    defense.      However, for reasons we explain below, we conclude that
    Texas’s common-law attorney-immunity defense is unavailable under
    the federal statute.
    C. Texas Wiretap Statute
    Common-law defenses may be abrogated by statute, 59 but under
    Texas law, statutes purporting to abrogate common-law principles must
    do so either expressly or by necessary implication. 60 Texas’s wiretap
    statute does not expressly repudiate the common law or the
    attorney-immunity defense. Robbins nonetheless argues that because
    the Legislature enacted specific defenses to criminal prosecution and
    civil liability for wiretapping, the statute necessarily fences out all
    common-law defenses not explicitly articulated in the statute. 61 And
    because the wiretap statute does not expressly adopt the common-law
    attorney-immunity defense, Robbins contends Taylor may not rely on it.
    Under Robbins’s line of reasoning, the Legislature would be
    required to expressly enact or “opt into” each and every defense
    applicable to a given cause of action, including defenses that exist under
    common law.        But that is not the law in this state.       As a general
    proposition, we follow an “opt-out” approach that incorporates
    59   See Dugger v. Arredondo, 
    408 S.W.3d 825
    , 836 (Tex. 2013).
    60Forest Oil Corp. v. El Rucio Land & Cattle Co., 
    518 S.W.3d 422
    , 428
    (Tex. 2017).
    61     E.g., TEX. CODE CRIM. PROC. art. 18A.504; TEX. PENAL CODE
    § 16.02(c).
    17
    common-law principles absent the Legislature’s clear repudiation. 62
    Accordingly,     the   Legislature     need    not    expressly    adopt     the
    attorney-immunity defense for it to apply to claims under the wiretap
    statute.
    As we have often said, courts presume that the Legislature acted
    with complete knowledge of existing law and with reference to it. 63
    When the Legislature makes law, it does so against a backdrop in which
    common-law defenses abound, and those defenses are generally
    available unless the Legislature clearly indicates otherwise. 64 We will
    62 Compare Forest Oil, 518 S.W.3d at 428 (“Abrogation of a common-law
    right, as we have said, ‘is disfavored and requires a clear repugnance’ between
    the common-law cause of action and the statutory remedy. A statute’s ‘express
    terms or necessary implications’ must indicate clearly the Legislature’s intent
    to abrogate common-law rights.” (quoting Cash Am. Int’l Inc. v. Bennett, 
    35 S.W.3d 12
    , 16 (Tex. 2000))), with Smith v. Baldwin, 
    611 S.W.2d 611
    , 616-17
    (Tex. 1980) (“In light of the facts that the DTPA was not designed to be a
    codification of the common law, the absence of a mental state element . . . and
    [the element’s] inclusion in other subdivisions, the legislative history of the
    1979 amendments, and in keeping with the mandate of liberal construction,
    we hold [that a particular DTPA provision] does not require proof or a finding
    of intentional misrepresentation before the sanctions of the DTPA are
    imposed.”).
    63Amazon.com, Inc. v. McMillan, 
    625 S.W.3d 101
    , 106-07 (Tex. 2021)
    (“Because we presume that the Legislature uses statutory language ‘with
    complete knowledge of the existing law and with reference to it,’ we have
    concluded that concepts included in the Legislature’s ‘seller’ definition
    acquired particular meaning from our common-law products liability cases.”
    (quoting In re Allen, 
    366 S.W.3d 696
    , 706 (Tex. 2012)) (citations omitted)).
    64 Cf., e.g., Dugger, 408 S.W.3d at 832 (“When the Legislature intends
    an exception to Chapter 33’s broad scheme, it creates specific exceptions for
    matters that are outside the scope of proportionate responsibility. . . . We find
    no such indication that the Legislature intended a plaintiff’s unlawful conduct
    to be treated differently from the other common law defenses under the former
    contributory negligence scheme[.]”).
    18
    not   presume       the   contrary,   so     we   cannot   conclude   that   the
    attorney-immunity defense is inapplicable to a state wiretapping claim
    unless the Legislature explicitly abrogated the defense or the defense
    inherently conflicts with the statute. 65 Statutes “creat[ing] a liability
    unknown to the common law,” like the Texas wiretap statute, are
    “strictly construed in the sense that [the statute] will not be extended
    beyond its plain meaning or applied to cases not clearly within its
    purview.” 66 That means courts “must look carefully to be sure” the
    Legislature intended to “modify common law rules.” 67
    Robbins does not contend that the Texas wiretap statute
    expressly repudiates common-law defenses, but she suggests that it does
    so by necessary implication. Though she points out that the Code of
    Criminal Procedure codifies a good-faith defense to the private right of
    action for wiretapping 68 and the Penal Code provides specific affirmative
    65 See Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc.,
    
    236 S.W.3d 190
    , 194 (Tex. 2007) (“Of course, statutes can modify common law
    rules, but before we construe one to do so, we must look carefully to be sure
    that was what the Legislature intended.”); cf. Gunn Infiniti, Inc. v. O’Byrne,
    
    996 S.W.2d 854
    , 856-57 (Tex. 1999) (“Nothing in the DTPA evidences a
    legislative intent to withdraw mitigation of damages as an affirmative
    defense . . . . Nor does the concept of mitigation inherently conflict with the
    DTPA.”).
    66   Smith v. Sewell, 
    858 S.W.2d 350
    , 354 (Tex. 1993).
    Energy Serv. Co., 236 S.W.3d at 194; Satterfield v. Satterfield, 448
    
    67 S.W.2d 456
    , 459 (Tex. 1969).
    68TEX. CODE CRIM. PROC. art. 18A.504 (stating that “good faith reliance
    on a court order or legislative authorization constitutes a complete defense to
    an action brought under Article 18A.502”).
    19
    defenses to criminal prosecution, 69 the Legislature did not make those
    defenses exclusive, and the statute cannot be fairly read as clearly
    repudiating civil-liability defenses otherwise available under the
    common law.
    Robbins also cites the statute’s language creating “a civil cause of
    action against any person who intercepts, discloses, or uses . . . the
    communication[.]” 70 Although “any person” would inarguably include
    attorneys, we are not convinced that the breadth of the statutory
    language—which is not at all uncommon—clearly shows legislative
    intent to abrogate common-law defenses generally or attorney immunity
    specifically. 71 The attorney-immunity doctrine does not apply to all
    conduct by attorneys, so attorneys are not precluded from being the
    subject of a wiretap claim even though some of their conduct may give
    rise to an immunity defense. In this regard, Robbins suggests a false
    dichotomy. In reality, attorneys can be persons to whom the statute
    applies and also immunized from civil liability for the kind of conduct
    the immunity defense protects.
    Nor does the statute’s evidentiary bar render Taylor’s conduct
    foreign to the duties of an attorney or abrogate the attorney-immunity
    defense.     The Texas wiretap statute precludes “[t]he contents of an
    intercepted      communication      and    evidence    derived     from   the
    69 TEX. PENAL CODE § 16.02(c) (“It is an affirmative defense to
    prosecution under Subsection (b) that . . . .”).
    70   TEX. CODE CRIM. PROC. art. 18A.502 (emphasis added).
    71See Energy Serv. Co., 236 S.W.3d at 194 (before construing a statute
    to modify common-law rules, “we must look carefully to be sure that was what
    the Legislature intended”).
    20
    communication” from being “received in evidence in any trial, hearing,
    or other proceeding in or before any court,” 72 but this limitation on
    admissibility of evidence is not repugnant to the attorney-immunity
    defense because the sum total of an attorney’s legal duties does not begin
    and end with admissibility of evidence. First, inadmissibility of evidence
    does not foreclose all uses or disclosures of that evidence. 73 For example,
    relevant information that is reasonably calculated to lead to admissible
    evidence at trial is discoverable even though that information may later
    be ruled inadmissible. 74 Similarly, an attorney like Taylor who receives
    such evidence from a client may be under a duty to produce (i.e., use and
    disclose) such evidence if responsive to an appropriate request from an
    opposing party. More significantly, the evidentiary bar does not speak
    to an attorney’s nonlitigation adversarial uses and disclosures at all.
    Second, like other rules of evidence, this statute governs what a
    trial court may receive into evidence—not what an attorney may seek to
    have admitted. 75 In other words, it decrees what a court may do, not
    what an attorney may do. Declaring intercepted communications and
    72 TEX. CODE CRIM. PROC. art. 18A.357(a)(1). The federal wiretap
    statute contains a similar prohibition. 
    18 U.S.C. § 2515
    .
    73We emphasize, however, that the defense does not permit attorneys
    who, for example, make bad-faith arguments for admissibility or intentional
    misrepresentations to a court to escape sanction or disciplinary action if
    appropriate.
    74   See TEX. R. CIV. P. 192.3(a).
    75 See TEX. CODE CRIM. PROC. art. 18A.357(a)(1) (“The contents of an
    intercepted communication and evidence derived from the communication may
    be received in evidence in any trial, hearing, or other proceeding in or before
    any court . . . unless . . . the communication was intercepted in violation of this
    chapter, Section 16.02, Penal Code, or federal law[.]” (emphases added)).
    21
    evidence derived therefrom inadmissible is not clearly incompatible
    with the attorney-immunity defense because this evidentiary limitation
    does not comprehensively address the duties or conduct of a lawyer in
    the representation of a client and instead speaks only to a narrow type
    of attorney conduct.
    Indeed, the statute includes no provision that is inherently
    adverse to immunizing attorneys from civil liability for their legal work
    on behalf of their clients. In Troice v. Greenberg Traurig, L.L.P., the
    Fifth Circuit came to a similar conclusion in determining that the Texas
    Securities Act (TSA) did not abrogate the attorney-immunity defense. 76
    The court explained that (1) the TSA “contains no explicit abrogation of
    immunity”; 77 (2) attorney immunity has been applied to bar claims
    under other statutes; 78 and (3) the TSA’s purposes would not be so
    clearly impeded if attorneys “are immunized while they work within the
    scope of their representation of clients” that courts could be “sure that
    the Texas Legislature intended to abrogate attorney immunity in the
    context of TSA claims.” 79 Each of these rationales supports application
    of the attorney-immunity defense to civil claims under the state wiretap
    statute. Because nothing in the Texas wiretap statute demonstrates
    76 
    921 F.3d 501
    , 507-08 (5th Cir. 2019) (holding that the Texas
    Securities Act did not abrogate the attorney-immunity defense because the Act
    was not explicit in doing so and because giving effect to the defense would not
    impede the statute’s purpose).
    77   Id. at 508.
    78   Id.
    79   Id.
    22
    clear     legislative      intent   to   preclude    attorney   immunity, 80   the
    common-law defense applies, and Taylor is immune from civil liability
    under that statute.
    That does not mean that all conduct criminalized by the wiretap
    statute is immunized from civil liability or free of consequences. As we
    explained in Bethel, while criminal conduct is not categorically excepted
    from the attorney-immunity defense, neither is it categorically
    immunized by that defense. 81 Criminal conduct may fall outside the
    scope of attorney immunity, 82 and even when it does not, “nothing in our
    attorney-immunity jurisprudence affects an attorney’s potential
    criminal liability if the conduct constitutes a criminal offense.” 83 After
    all, “attorney immunity is not boundless.” 84
    In that vein, we note that Robbins has not pleaded facts
    implicating Taylor in the alleged interception, either through action or
    advice. Our holding today does not foreclose the possibility that such
    80   See Forest Oil, 518 S.W.3d at 428; see also Energy Serv., 236 S.W.3d
    at 194.
    81   Bethel, 595 S.W.3d at 658 (citations omitted).
    82   Id.
    83   Id.
    Id. at 657. As we have explained, attorney immunity applies only to
    84
    lawyerly work that lawyers undertake to discharge their professional duties in
    connection with representation of a client. Our precedent identifies “several
    nonexhaustive examples of [wrongful] conduct that may fall outside the reach
    of the attorney-immunity defense,” for failure to meet one or more of these
    requirements, including (1) “participat[ing] in a fraudulent business scheme
    with a client”; (2) “knowingly helping a client with a fraudulent transfer” so
    that client can “avoid paying a judgment”; (3) “theft of goods or services on a
    client’s behalf”; and (4) “assaulting opposing counsel during trial.” Youngkin,
    546 S.W.3d at 682-83.
    23
    conduct might fall outside the scope of attorney immunity. But as those
    facts are not before us, we need not and do not express any opinion on
    the matter. In this case, all of Taylor’s alleged conduct is covered by the
    attorney-immunity defense because it was within the scope of her
    representation of Broome and within her attorney function. She is
    therefore immune from liability under the Texas wiretap statute.
    This conclusion does not, however, compel the same outcome with
    respect to the federal wiretap statute, which must be construed
    according to its own terms and in light of how federal courts would
    resolve the immunity question.
    D. Federal Wiretap Statute
    Taylor argues that Texas’s common-law attorney-immunity
    defense applies to claims under the federal wiretap statute because
    “Congress legislates against a background of common-law adjudicatory
    principles,” 85 and courts should assume that Congress enacted the
    federal wiretap statute with the expectation that common-law defenses
    will operate unless a statutory purpose to the contrary is evident. 86 We
    conclude that attorney immunity, as recognized and defined under
    Texas law, is not a defense under the federal wiretap statute because,
    quite simply, a state’s common-law defense does not apply to federal
    85   Blevins v. Hudson & Keyse, Inc., 
    395 F. Supp. 2d 655
    , 659 (S.D. Ohio
    2004).
    E.g., Astoria Fed. Sav. & Loan Ass’n v. Solimino, 
    501 U.S. 104
    , 108
    86
    (1991) (“[W]here a common-law principle is well-established, . . . the courts
    may take it as given that Congress has legislated with an expectation that the
    principle will apply except ‘when a statutory purpose to the contrary is
    evident.’” (citations omitted) (quoting Isbrandtsen Co. v. Johnson, 
    343 U.S. 779
    , 783 (1952))).
    24
    statutes. 87 Further considerations that support our conclusion include
    (1) the federal statute’s plain language, (2) federal authority declining
    to recognize extra-statutory defenses and immunities, and (3) Taylor’s
    failure to identify a federal common-law defense that aligns with Texas’s
    attorney-immunity defense that federal courts are likely to apply
    notwithstanding the statute’s plain language.
    When interpreting a federal statute, including whether it has
    abrogated certain affirmative defenses, we endeavor to “anticipate how
    the U.S. Supreme Court would decide the issue,” and “[t]his analysis
    often draws on the precedents of other federal courts . . . to determine
    the appropriate answer.” 88 In considering the existence or parameters
    of a common-law defense that may apply to a federal statute, we also
    “look to the common law, not of Texas or any particular jurisdiction, but
    in general.” 89
    Federal authority on the specific question of whether some
    version of attorney immunity applies to the federal wiretap statute is
    thin. Although federal courts have held that government attorneys are
    absolutely immune from suit under 
    42 U.S.C. § 1983
    , 90 we have not
    87 Cf. Union Pac. R.R. Co. v. Nami, 
    498 S.W.3d 890
    , 895 (Tex. 2016)
    (holding that a defense derived from general common law, not Texas common
    law, applied to the Federal Employers’ Liability Act).
    88 In re Morgan Stanley & Co., 
    293 S.W.3d 182
    , 189 (Tex. 2009); see also
    In re Facebook, Inc., 
    625 S.W.3d 80
    , 87 (Tex. 2021) (“When interpreting a
    federal statute, this Court generally follows the decisions of the U.S. Supreme
    Court.”).
    89   Nami, 498 S.W.3d at 895.
    90Imbler v. Pachtman, 
    424 U.S. 409
    , 423-24 (1976); see Barrett v. United
    States, 
    798 F.2d 565
    , 571-73 (2d Cir. 1986) (holding that absolute immunity
    25
    found another statutory civil action to which a federal court has applied
    any form of common-law attorney immunity.
    Moreover, when federal courts use the term “attorney immunity,”
    they are not necessarily talking about Texas’s particular brand of
    attorney immunity.        Courts have assigned the “attorney immunity”
    appellation to defenses that substantively differ from one another. 91 In
    its most common usage, the immunity more or less equates to what is
    known in Texas as the judicial-proceedings privilege, which protects
    “[c]ommunications in the due course of a judicial proceeding” from
    “serv[ing] as the basis of a civil action for libel or slander, regardless of
    the negligence or malice with which they are made.” 92 The privilege’s
    parameters are both broader and narrower than the attorney-immunity
    defense because the privilege covers “any statement made by the judge,
    jurors, counsel, parties[,] or witnesses” and “attaches to all aspects of
    the proceedings,” 93 but it is also limited to “liability for spoken or written
    words” (as opposed to a broad category of “actions” or “conduct”) and is
    also extends to state litigators in civil cases even if they are defending, rather
    than prosecuting, a case).
    91 E.g., Nix v. O’Malley, 
    160 F.3d 343
    , 352-53 (6th Cir. 1998) (using the
    term “attorney immunity” to refer to what Texas courts call the
    judicial-proceedings privilege—a substantively different defense).
    92 Landry’s, 631 S.W.3d at 46 (quoting James v. Brown, 
    637 S.W.2d 914
    ,
    916 (Tex. 1982)); see also RESTATEMENT (SECOND) OF TORTS § 586 (AM. L. INST.
    1977) (“An attorney at law is absolutely privileged to publish defamatory
    matter concerning another in communications preliminary to a proposed
    judicial proceeding, or in the institution of, or during the course and as a part
    of, a judicial proceeding in which he participates as counsel, if it has some
    relation to the proceeding.”).
    93   James, 637 S.W.2d at 916-17.
    26
    inapplicable outside the judicial proceeding. 94           Nearly all states
    recognize this variety of “absolute immunity for lawyers . . . with ‘very
    little variation’ from state to state.” 95 It is just known by other names
    in other states. 96 In the federal cases Robbins cites as rejecting attorney
    immunity under the federal wiretap statute, the litigants had asked the
    court to adopt other states’ versions of the judicial-proceedings privilege,
    referred to in those cases by variations on the phrase “attorney
    immunity.” 97 But because, under Texas law, the judicial-proceedings
    94   Landry’s, 631 S.W.3d at 51.
    95 T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons
    for Litigation Lawyers, 31 PEPP. L. REV. 915, 917-18 (2004) (quoting Paul T.
    Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 OHIO
    ST. L.J. 985, 991-92 n.37 (1993)); see Simms v. Seaman, 
    69 A.3d 880
    , 886-87
    (Conn. 2013) (“The principle that defamatory statements by attorneys during
    judicial proceedings are absolutely privileged when they are pertinent and
    material to the controversy is now well established in American
    jurisprudence.”); RESTATEMENT (SECOND) OF TORTS § 586 (AM. L. INST. 1977).
    96 See, e.g., Simms, 69 A.3d at 881 & n.1 (“litigation privilege”);
    Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 
    950 So. 2d 380
    , 380
    & 383 (Fla. 2007) (“litigation privilege”); Kirschstein v. Haynes, 
    788 P.2d 941
    ,
    948-54 (Okla. 1990), superseded on other grounds by rule, OKLA. SUP. CT. R.
    1.26 (“absolute privilege”); Surace v. Wuliger, 
    495 N.E.2d 939
    , 942-43 (Ohio
    1986) (“absolute privilege in judicial proceedings”).
    97E.g., Nix, 
    160 F.3d at 352-53
    ; Babb, 
    616 F. Supp. 2d at 1207-08
    ; see
    also Lewton v. Divingnzzo, 
    772 F. Supp. 2d 1046
    , 1057 (D. Neb. 2011) (citing
    Babb, 
    616 F. Supp. 2d at 1207
    , and Nix, 
    160 F.3d at 352-53
    ) (“[T]he court was
    unable to find any binding authority holding that an attorney who uses a
    communication intercepted in violation of the federal Wiretap Act is entitled
    to blanket immunity from Title III liability. The court did find persuasive
    authority to the contrary.”).
    27
    privilege is distinct from attorney immunity, those cases are not strictly
    applicable here. 98
    Even so, these cases, along with others, provide a strong basis for
    concluding that federal courts would be unlikely to apply Texas’s
    attorney-immunity defense to the federal wiretap statute. Although we
    have found nothing on point, federal courts are nearly uniform in
    declining to adopt extra-statutory exceptions and refusing to apply state
    common-law defenses, such as the judicial-proceedings privilege and
    interspousal immunity. 99 Admittedly, there are few cases on the topic,
    but the reasons the courts have offered are straightforward.
    98  “The ‘judicial-proceedings privilege’ and ‘attorney immunity’ are
    ‘independent [defenses] serving independent purposes.’” Landry’s, 631 S.W.3d
    at 46 (alteration in original) (quoting Cantey Hanger, 467 S.W.3d at 485 n.12);
    see id. at 46-47 (detailing the differences between the two defenses).
    99  Glazner v. Glazner, 
    347 F.3d 1212
    , 1214-16 (11th Cir. 2003); Kempf
    v. Kempf, 
    868 F.2d 970
    , 972-73 (8th Cir. 1989); Pritchard v. Pritchard, 
    732 F.2d 372
    , 373-74 (4th Cir. 1984); Lewton, 
    772 F. Supp. 2d at 1057
    ; Babb, 
    616 F. Supp. 2d at 1207-08
    ; Gill v. Willer, 
    482 F. Supp. 776
    , 778 (W.D.N.Y. 1980);
    Remington v. Remington, 
    393 F. Supp. 898
    , 901-02 (E.D. Pa. 1975); accord Ex
    parte O’Daniel, 
    515 So. 2d 1250
    , 1253 (Ala. 1987); see also United States v.
    Jones, 
    542 F.2d 661
    , 667-73 (6th Cir. 1976); Pyankovska v. Abid, No. 2:16–CV–
    2942 JCM (PAL), 
    2017 WL 5505037
    , at *4 (D. Nev. Nov. 16, 2017) (applying
    Babb, 
    616 F. Supp. 2d at 1207
    ); compare Nix, 
    160 F.3d at 350-53
     (stating no
    implied statutory immunity “has a breadth equal to that of the common-law
    defamation privilege” and declining to adopt such immunity because (1) “th[e]
    proposed immunity contravenes the [statute’s] plain language,” which requires
    exceptions to be explicit and (2) the disclosures that occurred “exceed[ed] the
    boundaries of any attorney immunity because [they] were tangential to [the
    client’s] defense,” while at the same time (a) acknowledging that the circuit
    court had previously recognized “very narrow[]” “unwritten exceptions” and
    (b) adopting a narrow “defense exception” that offers defendants a limited
    privilege to use and disclose communications in defense of a wiretapping
    lawsuit).
    28
    First, the statute applies to “any person” “[e]xcept as otherwise
    specifically provided” in the statute. 100 This exclusivity language makes
    the terms of the federal statute materially different from the Texas
    statute. Based on this “plain and explicit” and “clear and unambiguous”
    language, federal courts have rejected exceptions and immunities that
    are not specifically enumerated in the statute. 101 Further, as federal
    100   
    18 U.S.C. § 2511
    (1) (emphasis added).
    101 Kratz v. Kratz, 
    477 F. Supp. 463
    , 467 (E.D. Pa. 1979) (“The clear and
    unambiguous meaning of [section] 2511(1)(a) is to prohibit the interception of
    All wire communications by Any person except as Specifically provided by
    Congress.” (emphasis added)); see Heggy v. Heggy, 
    944 F.2d 1537
    , 1540 (10th
    Cir. 1991) (concluding the federal wiretap statute does not exempt interspousal
    interception, use, or disclosure based on the statute’s express language
    requiring an exception to be “specifically” articulated in the statute); Nix, 
    160 F.3d at 350-53
     (declining to adopt the defamation privilege, in part, because
    “this proposed immunity contravenes [the statute’s] plain language”); Jones,
    
    542 F.2d at 666-67
     (refusing to apply an interspousal-immunity privilege as a
    defense to prosecution based on the “straightforward and comprehensive”
    language of the statute, which “quite clearly expresses a blanket prohibition
    on all electronic surveillance except under circumstances specifically
    enumerated in the statute”); Heyman v. Heyman, 
    548 F. Supp. 1041
    , 1045-47
    (N.D. Ill. 1982) (refusing to recognize an interspousal-immunity exception and
    declaring the statute’s language “clear” and “unambiguous” in prohibiting any
    exceptions “except as specifically provided in the statute”).
    At least one federal court has also refused to apply a different state
    common-law defense—interspousal tort immunity—to the federal wiretap
    statute because Congress did not include the defense in far-reaching
    amendments. E.g., Heggy, 
    944 F.2d at 1541
    . “[H]ad it been the intent of
    Congress to keep interspousal wiretapping beyond the reach of Title III,
    Congress could have expressly excluded [it] when it overhauled Title III in the
    Electronic Communications Privacy Act of 1986[.]” 
    Id.
     But even though those
    “amendments touched nearly every section of Title III, Congress did not codify
    the judicially created exception for interspousal wiretapping[.]” 
    Id.
     The choice
    not to codify the interspousal-immunity defense in an otherwise wide-ranging
    statutory overhaul has been interpreted as reflective of a congressional intent
    to deny the defense. See 
    id.
    29
    courts have noted, the United States Supreme Court has generally
    stated that “the purpose of the Act is to effectively prohibit ‘all
    interceptions of oral and wire communications, except those specifically
    provided for[.]’” 102
    Second, courts have explained that state law cannot modify
    federal law. As the Tenth Circuit succinctly put it: “The short answer to
    the [state common-law] immunity defense is that [the federal wiretap
    statute] creates a federal cause of action that cannot be barred by any
    state law or policy.” 103 This view generally accords with our analysis in
    Union Pacific Railroad Co. v. Nami, which looked to general
    common-law principles, rather than the common law of Texas or any
    particular jurisdiction, in determining that the common-law ferae
    naturae doctrine applies to claims under the Federal Employers’
    Liability Act. 104
    While there is a dearth of federal cases on the precise issue
    presented, we think it unlikely that a federal court would apply Texas’s
    common-law attorney-immunity defense to the federal wiretap statute
    102See Heyman, 
    548 F. Supp. at 1045
     (quoting United States v.
    Giordano, 
    416 U.S. 505
    , 514 (1974)).
    103 Heggy, 
    944 F.2d at
    1541 n.8 (discussing the interspousal-immunity
    defense); see Jones, 
    542 F.2d at 672
     (holding that the federal wiretap statute
    contains no express or implied exception for interspousal wiretaps and noting
    “[t]here is also substantial doubt whether a doctrine of state tort law should
    have any influence in defining a cause of action expressly created by federal
    statute, particularly when Congress could have included a similar provision in
    the statute and failed to do so”); Kratz, 
    477 F. Supp. at 475
     (“[T]he cause of
    action in this case is provided by federal law and cannot be subverted by any
    state law or policy.”).
    104   498 S.W.3d at 895-99.
    30
    if presented with the question today.      Based on the statute’s plain
    language, which requires exceptions to be explicit, we also find it
    unlikely that a federal court would apply a federal common-law version
    of our attorney-immunity defense, but to the extent that is a reasonable
    possibility, Taylor has not substantiated the existence or contours of any
    such defense. Accordingly, we hold that Taylor may not invoke Texas’s
    attorney-immunity defense as a bar to liability under the federal
    wiretap statute.
    III. Conclusion
    Taylor is entitled to summary judgment on Robbins’s state
    wiretapping claims because the kind of conduct alleged in support of
    those claims falls within the scope of the attorney-immunity defense.
    But Taylor is not entitled to summary judgment on Robbins’s claims
    under the federal wiretap statute because we are not convinced that
    federal courts would apply Texas’s common-law attorney-immunity
    defense to that statute. We thus affirm the court of appeals’ judgment
    in part, reverse and render judgment in part, and remand the case to
    the trial court for further proceedings on the federal wiretap claims.
    John P. Devine
    Justice
    OPINION DELIVERED: May 6, 2022
    31