An Introduction to Attorney Client Privilege in Texas

Attorney Client Privilege in Texas

A person usually reaches out to an attorney for help with a serious situation. In order to benefit from the attorney-client relationship, the client must feel completely free to share all information about that situation without fear. Fortunately, the importance of that freedom is recognized and codified in Rule 503 of the Texas Rules of Evidence, which focuses on attorney-client privilege.

What Rule 503 Includes

From the initial consultation with an attorney, anything the client shares is privileged information, even if ultimately the client chooses a different attorney. Contrary to widespread belief that the client needs to retain counsel to enter into attorney-client privilege, no money needs to exchange hands. As long as the client is “consulting a lawyer preliminarily with a view to retaining him, even though actual employment does not result,” client attorney privilege is in effect. Fed. R. Evid. 503, Adv. Comm. Note (not enacted), reprinted in McCormick on Evidence app. A at 759 (4th ed. 1992).

The attorney-client relationship may be explicitly stated in an attorney-client representation contract, or it can circumstantial, implied by the client’s wish for confidential communication. However, since the court cannot simply guess what is in the client’s mind during a consultation, the parties’ words and/or actions must verify an interest in an attorney-client relationship. In order for privilege to exist, the client must reach out to the attorney in his or capacity as an attorney; a casual conversation between friends at a party is not sufficient to establish attorney-client confidentiality, for example. While the client may seek advice about a particular legal issue, once attorney-client privilege is established, that privilege applies to all information exchanged, not just the information particular to the case. State v. Martinez, 116 S.W.3d 385 (Tex. App.—El Paso 2003, no pet.).

Exceptions to Attorney Client Privilege

While Rule 503 does recognize the sanctity of attorney-client privilege, it also places limitations on certain types of communication, including information that is potentially fraudulent, a violation of an attorney’s duty, or some form of a conflict of interest, quoted below:

(1) communications made for the client's furtherance of a crime or fraud;

(2) communications relating to an issue between parties claiming through the same deceased client;

(3) communications relevant to an issue of breach of duty by a lawyer to his client or client to his lawyer;

(4) communications relevant to an issue concerning an attested document to which the lawyer was an attesting witness; or

(5) as to matters of common interest between or among clients jointly represented by a lawyer.

Since 1879, Texas Courts have recognized the importance of attorney-client privilege. Tex. Code Crim. Pro. art. 733 (1879). While exceptions exist, Rule 503 continues the long-standing tradition of protecting attorney-client privilege in order to facilitate honest and complete communication between an attorney and his or her client.

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