                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS              October 29, 2003

                         FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                      Clerk


                             No. 03-40481
                           Summary Calendar



ELENE T. GUTHRIE,

          Plaintiff-Appellant,

                                versus

MARK ROGER BUCKLEY;
DIANA L. PORTER;
DIANA L. PORTER, P.C.,

          Defendants-Appellees.



             Appeal from the United States District Court
                   for the Eastern District of Texas
                          USDC No. 4:02 CV 297


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff Guthrie appeals the district court’s decision to

grant Defendants’ Motion to Dismiss pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6).      For the following reasons,

we AFFIRM.

     Guthrie    sued   Defendants   Mark   Buckley   and   Diane     Porter,

Buckley’s attorney, for malicious prosecution.        Guthrie based the

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
suit on the actions of Defendants in a previous suit.            In the

previous suit, Buckley, represented by Porter, sued to enforce a

child custody order.    The motion included 19 criminal contempt-of-

court counts demanding incarceration.     The court granted Buckley’s

motion to enforce the child custody order, finding Guthrie in

violation of various provisions of the order, but the court did not

hold Guthrie in contempt of court.

     Guthrie    bases   her   malicious   prosecution   claim    on   the

underlying court’s refusal to find her in contempt.       However, the

controlling Texas law disallows her suit.     Therefore, the district

court properly granted the motion to dismiss.

     Texas law holds that “an attorney does not have a right of

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 in a lawsuit in

which the first attorney also represented a party.”1            To allow

otherwise would “favor tentative representation, not the zealous

representation that our profession rightly regards as an ideal and

that the public has a right to expect.”2      This principle has been

extended to suits by opposing parties against attorneys.3              An


     1
       Bradt v. West, 892 S.W.2d 56, 72-73 (Tex. App.--Houston [1st
Dist.] 1994, writ denied).
     2
         Id. at 73.
     3
       Taco Bell Corp. v. R.W. Cracken, 939 F.Supp. 528, 532 (N.D.
Tex. 1996) (holding that Bradt’s reasoning applies “with at least

                                   2
attorney      or    an   opposing    party    may    seek     sanctions      for    the

opposition’s allegedly meritless or malicious acts, “[b]ut the law

does not provide a cause of action.”4

      Based    on    this    law,   the   district      court    properly    granted

Defendants’ Motion to Dismiss in relation to Porter.                         Porter’s

pleadings, which attempted to hold Guthrie in contempt of court,

were acts within the discharge of her duties as an attorney.

Accordingly, Guthrie has no cause of action based on Porter’s

actions.

      Similarly, Texas law does not allow one party to sue an

opposing party for an attorney’s allegedly wrongful conduct.5                        To

be liable for the attorney’s conduct, a client must be “implicated

in   some     way    other   than    merely     having      entrusted     his      legal

representation to the attorney.”6             This rule recognizes that most

clients are not qualified to monitor their attorney’s actions

during representation.7             Guthrie’s    suit    is     based   on   Porter’s

pleadings, which sought to hold her in contempt of court.                    There is



equal force to the liability of an attorney to the opposing
party”); Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32
S.W.3d 429, 440-42 (Tex. App.--Houston [14th Dist.] 2000, pet.
denied).
      4
          Bradt, 892 S.W.2d at 72.
      5
          Id. at 76-77.
      6
      Id. at 76 (citing TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 917 (Tex. 1991)).
      7
          Id. at 76-77.

                                          3
no allegation or evidence that Buckley did anything more than hire

an attorney to zealously represent him in enforcing a child custody

order.8   Accordingly, Texas law will not allow a cause of action

against Buckley arising out of Porter’s representation.

           AFFIRMED.




     8
       Contrary to Guthrie’s allegation, the district court’s
dismissal did not require it to resolve a disputed fact. Guthrie
attempted to hold Buckley liable based on the pleadings filed by
Porter. Without more, Porter’s pleadings show only that Buckley
entrusted his legal representation to her.

                                 4
