Frequently Asked Questions

Who holds the privilege?

The client, not the attorney, has the ultimate authority to assert the privilege. However, as a technical matter, either the attorney, as the client’ agent, or the client will claim the privilege.

Who is the client?

The client in this context is the intended beneficiary of the legal services. It is now well established that a corporation can assert the privilege. The more difficult question is which corporate employees speak on behalf of the client organization. In 1998, the Texas Legislature amended the Texas Rule of Evidence 503 to adopt a “subject matter” test for an entity’s assertion of privilege. Under the subject matter test, an employee’s communication is eligible for the privilege if:

1. The employee has the authority to obtain professional legal services or to act on the rendered advice on behalf of the corporation or

2. The employee, for the purpose of effectuating legal representation for the corporation, makes or receives a confidential communication while acting in the scope of his/her employment. Tex. Evid. R. 503(a)(2)(A) & (B) (2009).

The privilege applies if: the employee is eligible; the communication is made to a lawyer or the lawyer’s representative; and the communication is for the primary purpose of soliciting or rendering legal, rather than business, advice.

Can the privilege be waived?

Yes. The privilege can be waived in a variety of circumstances. For example, if the communication is not made in confidence or is subsequently disclosed to a third party, a waiver has occurred. Tex. Evid. R. 503 & 511 (2009). Disclosure may be intentional, compelled by legal process, or even inadvertent. An example of the latter is if the communication occurs in a setting without a reasonable expectation of privacy.  

Are agents of the attorney bound by the privilege?

Yes. According to Texas law, all representatives of the lawyer are covered by this testimonial privilege statute. A representative of the lawyer is defined as “one employed by the lawyer to assist the lawyer in the rendition of professional legal services. Tex. Evid. R. 503(a)(4) (2009).  

Does the privilege attach regardless of the medium of communication?

Yes. Texas case law indicates that the privilege may be successfully asserted if the communication occurs in person, over the telephone (land-line, cordless, or cellular), via the fax machine, or in e-mail over the internet. State v. DeAngelis, 116 S.W.3d 396 (Tex. App.—El Paso, 2003, no pet.)(phone call protected)In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907 (Tex. App.—Dallas 2006, writ denied) (emails protected).

Is everything I say to my lawyer privileged?

No. The communication must be made to a lawyer acting in a legal capacity. [1] In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.--Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney). Thus, if a lawyer is giving business advice, as opposed to legal advice in connection with a business transaction, no privilege will attach to such communications. Also, the attorney-client privilege may not be used as a shield for a contemplated future crime or fraud. Tex. Evid. R. 503(d)(1) (2009). Finally, the Texas Court of Appeals has held that “the attorney-client privilege does not extend to the disclosure of underlying facts, but merely to the disclosure of attorney-client communications.” MortgageAmerica Corp. v. American Nat'l Bank , 651 S.W.2d 851, 858 (Tex. App.--Austin 1983, writ ref'd n.r.e.) (communications privileged, not underlying facts).

October 19, 2009