The Attorney Client Privilege

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Jason B. Freeman

Jason B. Freeman

Managing Member


Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine, a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

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:

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:

However, Texas court have considered the following not to be privileged communications:

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:


Freeman Law Tax Attorneys 

Freeman Law aggressively represents clients in tax litigation at both the state and federal levels. When the stakes are high, clients rely on our experience, knowledge, and talent to help them navigate all levels of the tax dispute lifecycle—from audits and examinations to the courtroom and all levels of appeals. Schedule a consultation or call (214) 984-3000 to discuss your tax needs.