A Practical Guide to the Attorney-Client Privilege
A lawyer shall not knowingly reveal confidential information of a client or former client to a person that the client has instructed is not to receive the information or anyone else…” Tex. Disciplinary R. Prof. Conduct 1.05 (2009).
The attorney-client privilege is the oldest privilege for confidential information recognized at common law. Nevertheless, the attorney-client privilege is not unlike the testimonial privilege which has been extended to other professions including physicians, psychologists, accountants, and the clergy. The privilege is intended to encourage full and frank communication between the client, patient, or penitent and the professional.
More specifically, the attorney-client privilege recognizes that sound legal advice depends on the lawyers being fully informed by the client. The purpose of this privilege is to encourage a client to provide all relevant information to the attorney and to protect advice given during the course of the attorney-client relationship. Were it otherwise the client would be reluctant to confide in legal counsel. The Texas Supreme Court has held that the reason for “the privilege is to ensure the free flow of information between attorney and client, ultimately serving the broader societal interest of effective administration of justice.” Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex. 1993). Neither the client nor the attorney can be compelled to disclose these communications against the client’s wishes. Tex. Evid. R. 503(b)(1) (2009).
The elements required to establish the attorney-client privilege are as follows:
made between privileged persons;
in confidence; and
for the purpose of seeking, obtaining, or providing legal assistance to the client.
In Texas, an employee is considered a "privileged person" (or a client) of in-house counsel if the employee (a) has the authority to obtain professional legal services or to act on the rendered advice or (b) makes or receives a confidential communication at the direction of the corporation and while acting in the scope of his/her employment. Tex. Evid. R. 503(a)(2)(A) & (B) (2009). The communication between the parties must be for the primary purpose of soliciting legal, rather than business, advice. United States v. Davis, 636 F.2d 1028, 1044 (5th Cir. 1981) (when attorney “not acting in a legal capacity…records of such transactions are not privileged”). Additionally, “the privilege must be affirmatively raised and cannot have been waived.” Edna S. Epstein, The Attorney-Client Privilege and the Work Product Doctrine, ABA Section of Litigation, 35 (3d ed. 1997).
- Do not combine requests for legal advice with requests for other advice; let one document or communication perform one task. This will help to preserve the confidentiality of legal inquires and advice. Also, indicate on the communication that it is either confidential or privileged.
- In the age of email, communications are often directed to many recipients, including counsel. Such a scenario may create a presumption that the communication was not solely for legal purposes, which could mean that no attorney-client privilege will attach. Keep this in mind when deciding how you address communications
- Email messages can often be passed around an organization through email “chains” or “threads.” If a non-lawyer employee forwards an attorney’s legal advice to others for an authorized legal purpose, it will remain protected. But if a non-lawyer employee forwards that advice to other non-lawyers for administrative or other non-legal reasons, the privilege might be lost. So think twice, or check with counsel, before forwarding legal advice.
- Be careful not to waive the privilege by disclosing the communications, or the content of communications, with counsel to third parties.
Texas courts have long recognized a common law attorney-client privilege and codified the privilege as early as 1879. Tex. Code Crim. Pro. art. 733 (1879). More recently, Texas Evidence Rule 503 was amended by the Texas Legislature in direct response to a decision of the Texas Supreme Court. National Tank Co. v. Brotherton, 851 S.W.2d 193, 197-198 (Tex. 1993). The 1998 amendment adopts a “subject matter test” for the privilege of a corporation, expanding the privilege to cover more employees. Additionally, Rule 503 provides that the client has a privilege to refuse to disclose, and to prevent the attorney as well as the attorney's representative, from disclosing confidential communications which were made for the purpose of obtaining legal services. Tex. Evid. R. 503(b) (2009). Any person employed by the attorney to assist the attorney in providing legal services is considered a representative of the attorney. Tex. Evid. R. 503(a)(4)(A) (2009).