The attorney-client privilege is likely the oldest privilege recognized by Anglo-American jurisprudence. Grounded in the concept of honor, the privilege is intended to bar any testimony by the attorney against the client, and facilitates open and frank discussions regarding legal matters that lay an important foundation for our adversary system of justice.
There have been many justifications put forward for the attorney-client privilege. At its core, the privilege ensures that one who seeks advice or aid from a lawyer will be completely free of any fear that his/her secrets will be exposed. Thus, the underlying principle of the privilege is to facilitate sound legal advice and advocacy. Shielded by the privilege, the client may be more willing to communicate to counsel things that might otherwise be suppressed. In other words, the privilege provides the client the liberty to be frank and honest with their counsel. In theory, such candor and honesty helps attorneys provide more accurate and well-reasoned professional advice while protecting their sensitive information.
For all of its policy considerations and justifications, the attorney-client privilege has a very real practical consequence: the attorney may neither be compelled to, nor may he or she voluntarily, disclose matters conveyed in confidence to him or her by the client for the purpose of seeking legal counsel.
Although there is no singular authority on the attorney-client privilege, it has been defined as follows:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his [or her] instance permanently protected (7) from disclosure by [the client] or by the legal adviser, (8) except the protection be waived.
Regardless of how the attorney-client privilege is articulated, there are four core elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
Determining Whether a Communication Occurred
The attorney-client privilege only protects communications. Identifying what constitutes a “communication” requires an examination of whether information was transmitted between the attorney and the client and the type of information exchanged.
The attorney-client privilege can extend to all modes of communication, verbal and written. However, there are limitations. For example, courts have declined to consider the following to be “communications” for purposes of attorney-client privilege: appearance, demeanor, presence at a particular location, and physical action.
File notes and memoranda are generally unprotected, but work product privilege may apply (See Work Product Doctrine). The same applies to pre-existing or public documents. Such documents do not become privileged merely because they are given to an attorney.
Determining Whether a Communication was Between Privileged Persons
Specifically, the attorney-client privilege only applies with an attorney-client relationship. Such relationship may be expressly created or implied.
Determining Whether a Communication Was Confidential
The attorney-client privilege only protects confidential communications between an attorney and the client that assist the rendition of legal services. A communication is confidential if it is not intended to be disclosed to third parties other than:
- Persons to whom disclosure is made to facilitate the rendition of legal services.
- Persons to whom disclosure is reasonably necessary to transmit the communication.
A communication may be expressly confidential. Otherwise, it will be considered confidential if the client intends for the communication to be confidential. If the client does not intend for a communication to be confidential, it is not protected. Courts examine intent on a case-by-case basis.
Further, attorney-client communications knowingly made in the presence of a third-party are not confidential and are therefore not protected by the attorney-client privilege. Disclosure of privileged information to a third party therefore jeopardizes the attorney-client privilege.
Determining Whether a Communication Facilitated the Provision of Legal Services
The attorney-client privilege only protects confidential attorney-client communications that seek or assist the attorney’s rendering of professional legal services.
The attorney-client privilege protects both legal advice provided by the attorney to the client and confidences imparted by the client to the attorney. Any communication that assists the rendering of professional legal services to the client is potentially within the privilege, regardless of the subject matter of the information communicated. It is not necessary that the primary purpose of that communication be to assist the rendition of legal services.
Texas courts have considered the following to be privileged communications:
- Requesting advice from an attorney
- Expressing facts and seeking the attorney’s advice, although the facts themselves are not privileged.
- An attorney’s communications to the client expressing legal advice.
- Counsel’s confidential communications with corporate employees in connection with investigating an accident made to enable counsel to defend the client in litigation.
- Counsel’s confidential communications with a client representative who was also a testifying expert.
- Drafts of documents and agreements exchanged between an attorney and client or their representatives.
However, Texas court have considered the following not to be privileged communications:
- Communications with a client regarding trial settings (for example, the date, time, and location of trial).
- The terms of an attorney’s employment, including the purpose for the retention and the fee arrangement.
Exceptions to the Attorney-Client Privilege
In Texas, there are five types of communications that are explicitly not protected by the attorney-client privilege. In other words, a communication that otherwise meets the qualifications of a confidential communication is not privileged if it falls within one of these exceptions:
- Communications made in furtherance of a crime or fraud
- Communications relevant to an issue involving claimants through the same deceased client Communications relevant to a breach of duty by the lawyer to the client or vice versa
- Communications relevant to attested documents
- Communications relevant to a matter of common interest between joint clients
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