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| Confidential Every attorney has an ethical obligation to protect the confidential information of a client. Confidential information includes both privileged and unprivileged client information. Privileged information means information that is protected by Rule 503 of the Texas Rules of Criminal Evidence, Rule 503 of the Texas Rules of Civil Evidence, or Rule 501 of the Federal Rules of Evidence. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, which is acquired by the lawyer during the course of or by reason of the representation. An attorney must not knowingly:
Lawyer-Client Privilege Privilege Defined The lawyer-client privilege protects certain confidential communications made for the purpose of facilitating the rendition of professional legal services to a client. The rules of criminal evidence recognize a client's right to prevent the disclosure of such information. Since the point of the rule is to protect the client's right to prevent disclosure, a violation of the privilege may not lead to any relief from pending prosecution if no disclosure results from the violation. A client may also prevent the disclosure of any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the lawyer-client relationship. There is also a criminal work product doctrine that may serve to shelter materials prepared during a criminal case from discovery in a civil proceeding. This form of the lawyer-client privilege protects materials such as memoranda, reports, interviews, mental impressions, conclusions, opinions, legal theories, and other materials prepared and assembled for litigation and in anticipation of litigation Essential Elements A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client that are made in any of the following ways:
A communication is confidential if it is not intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Thus, the presence of a third person does not waive the privilege if the third person has a common legal interest with respect to the subject matter of the communication. It is clear that there must be some form of professional relationship between the client and the lawyer for the lawyer-client privilege to apply. This does not mean that the attorney must actually have undertaken representation for the privilege to operate. The privilege arises when the client ``consults a lawyer with a view to obtaining professional legal services''. Thus, before logically reaching any question concerning the application of the lawyer-client privilege, a determination must be made that the claim of privilege is being made by the lawyer on behalf of a client. Whether an attorney-client relationship exists is a question for the trial court to decide, and the court's ruling will ordinarily not be disturbed on appeal. As mentioned above, the privilege applies not only to confidential communications with the lawyer, but also to such communications with the lawyer's representatives. However, the nonattorney to whom the disclosure is made must have been employed by the lawyer to assist the lawyer in the rendition of legal services. For example, the lawyer-client privilege does not apply to a communication with a nonattorney such as a psychiatrist who has been appointed by the court to conduct an independent examination. However, a psychiatrist employed by a lawyer falls under lawyer-client privilege. Assuming the lawyer-client relationship is established, the privilege applies only to protect communications that are deemed to be confidential. The circumstances surrounding the communication are considered in determining if it was intended to be confidential. If the desire for confidentiality is absent, the reason for the privilege is also absent. The communication need not be oral to be protected. Written communications or preexisting documents that would be privileged from production in the hands of the client will be privileged from production in the hands of the attorney if they were transferred for the purpose of obtaining legal advice. In order for the lawyer-client privilege to apply, the prosecution must be seeking the disclosure of the substance of a confidential communication. Therefore, the protection of the lawyer-client privilege is not invaded if no communication is involved. For example, the privilege does not apply if testimony is sought merely regarding the presence of the attorney at a particular stage of the prosecution, if the attorney is asked about matters of public record, or if testimony is sought from the attorney regarding his or her relationship with the client outside the attorney-client relationship, such as when the attorney acted as the client's bondsman. Similarly, there is no violation when a defendant's former attorney is called to testify at a retrospective competency hearing, as long as no confidential communications are revealed. A defendant's physical actions toward an attorney may also fall outside the purview of the privilege. However, under some circumstances, information that would not normally be privileged may be protected. For example, although the identity of a client or information involving the receipt of a fee from a client is not usually protected by the privilege, if the release of such information would automatically lead to a conviction or indictment of the client, the information may be privileged. This principle comes into play only if the third party who has paid the defendant's fee is also a client of the defendant's attorney. The lawyer-client privilege shields the identity of a client or fee information only when the revelation of such information would disclose other privileged communications, such as the confidential motive for retention of the attorney. | |
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