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IBP9/11/2001
S.W.2d at 288; Bradt, 892 S.W.2d at 71. As to the latter issue, appellant urges, in part, that Blackburn's actions were not within the bounds of the law because he directly violated Penal Code § 31.05 by faxing the Guides to Fadduol & Glasheen; and also because he conspired with Klumpe and Fadduol & Glasheen to have Klumpe take the Guides in violation of Penal Code § 31.05.
A civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979). Basically, the defining characteristic is that either the object to be accomplished, or the means by which the object is accomplished, is unlawful. Massey, 652 S.W.2d at 934. The gist of a civil conspiracy is the injury that is intended to be caused. See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex.1968).
Appellant asserts that its allegations of a conspiracy to have Klumpe illegally take the Guides is supported by evidence that (1) members of the Fadduol & Glasheen law firm knew of the Guides and had previously unsuccessfully attempted to obtain discovery of the Guides in other lawsuits, (2) members of the law firm met with Blackburn and Klumpe on various occasions between Escamilla's injury in April, 1997, and the June 29th faxing of the Guides by Blackburn, (3) the law firm requested "informal" discovery of all documents Klumpe had delivered to Blackburn after the firm and Blackburn had been served with appellant's objections to production of crewing guidelines for the hock-cutter machine causing Escamilla's injury, and (4) Blackburn subsequently faxed all 18 pages of the Guides on the evening before Blackburn was to meet with appellant's attorney to review documents in the possession of Blackburn and Klumpe which might be responsive to the deposition notice.
We take note of the concept that the law should not encourage one suit breeding twenty. Bradt, 892 S.W.2d at 60. The Bradt court went on to state that an attorney may make use of any right on behalf of a client which the attorney deems necessary or proper without making the attorney liable in damages. Id. See also Texas Beef Cattle Co., 921 S.W.2d at 211; Montgomery v. Phillips Petroleum Co., 49 S.W.2d 967, 972 (Tex.Civ.App.--Amarillo 1932, writ ref'd). We do not disagree with such proposition. But, as previously noted, we do not agree that a person under subpoena has a privilege to violate a provision of the penal code in obtaining evidence merely because that evidence is listed in a subpoena duces tecum. Nor do we agree that, except as to communications in connection with the litigation process as previously discussed, an attorney representing a client in connection with litigation has a duty to a client or a privilege to (1) violate a provision of the penal code or (2) conspire to have another do so. See Poole v. Houston & T.C. Ry., 58 Tex. 134, 137-38 (1882) (where a lawyer acting for his client participates in wrongful activities, his action in doing so is foreign to the duties of an attorney); Querner, 966 S.W.2d at 666.
The claim against Blackburn for faxing the Guides to Fadduol & Glasheen is based on his communication and disclosure of the alleged trade secret contents of the Guides. Blackburn was absolutely privileged to make such disclosure because he made the disclosure as part of discovery proceedings in pending litigation, even if he transmitted the Guides in violation of Penal Code § 31.05. See James, 637 S.W.2d at 916-17; Bennett, 932 S.W.2d at 201; Leigh, 740 S.W.2d at 103-04.
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