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Attorney-Client Privilege: What exactly is privileged?

The attorneys at Houston Injury Lawyers, PLLC, have been asked this question in consultation with our clients. With the rise of the internet and social media, much discussion has taken place over the years as to how far the privilege extends. This blog will discuss what the attorney-client privilege is and what is subject to the privilege.

Attorney-Client Privilege: What exactly is privileged?

It is important to understand what the attorney-client privilege is. When multiple people have been involved in an incident that creates injuries, a lawyer must be conscientious before visiting with potential clients and other retained counsel for parties. Texas Rule of Evidence 503 governs the attorney-client privilege. Confidential communications between clients and counsel to facilitate legal services are generally insulated from disclosure. It is the oldest privilege under the common law, but it is not an absolute privilege. There are four core elements necessary to establish the existence of the privilege: 1) Legal advice of any kind is sought; 2) from a lawyer or their qualified representative (think Paralegal) in their capacity as such; 3) the communications must relate to legal advice; 4) must be made in confidence (not where third-parties overhear it); and, 5) must be made by the client.

           Here are some common scenarios and how the privilege may apply:

Allied Litigants – this is generally seen in a scenario where one party may file a lawsuit against several different defendants for the same injury, alleging that each party played a part in causing the damage. In comparison, the attorney-client privilege protects communications made by a lawyer or representative representing another party in a pending action if the communications concern a matter of common interest; this limit is not absolute. In fact, in a scenario where the information being sought is from a person or entity, not a party to the case – this can limit the attorney-client privilege. Also, if there is no pending action, as required by the rule, this may work to limit any claim of attorney-client privilege.

Internal Revenue Service – Death and Taxes! One interesting case out of the Fifth Circuit, Taylor Lohmeyer Law Firm P.L.L.C. v. United States, No. 19-50506, 2020 WL 1966844 (5th Cir. Apr. 24, 2020), cemented that where the IRS has a taxpayer under investigation, a law firm could not invoke the attorney-client privilege to quash summons by the IRS seeking the identities of a firm client. The privilege was not permitted to be used to circumvent compliance with the summons. However, the privilege may have protected the disclosure of specific documents.

Expert Witness is Client – Under Texas law, any document provided to a testifying expert in anticipation of their testimony must be disclosed to the other side, regardless of whether or not the expert relied on the document. This means that every document provided to a testifying expert must be disclosed even if otherwise protected from disclosure. However, the exception is if the expert witness is also a client. This is seen frequently in insurance cases where one firm represents the insurance company and the adjuster, and the adjuster testifies as an expert witness. Conversations with counsel and the adjuster may still maintain their privilege.

Certain Attorney Communications – Courts in Texas have held that it is privileged where a communication relates to legal advice. For example, even communications with corporate client employees in connection with investigating an accident to enable the lawyer to defend the client in litigation may be privileged. However, an email from a lawyer to a client regarding trial or hearing settings (date, time, and location) is not privileged. Also, the terms of an attorney’s employment, including the purpose for hiring the lawyer and the fee arrangement, are not privileged.

The Big Five

There are five types of communications in Texas that explicitly are not protected under the attorney-client privilege. We would be remiss not to include these in any conversation about the attorney-client privilege. It is essential to understand that the attorney-client privilege is not absolute, and in these situations, one should not expect that their conversation with the attorney will be forever protected.

Communications made in furtherance of a crime or fraud – communications about past crimes or fraud will generally almost always be protected by the attorney-client privilege. However, such conversation will generally not be privileged if the communication is made to commit or cover up a crime or fraud. It is never a good idea to ask an attorney how to destroy or conceal evidence, conceal income or assets, or ask an attorney to present testimony that the lawyer knows is false. A conversation with an attorney to ask them how one can get rid of a gun used in a robbery is never a good idea – and neither was the robbery.

Communications relevant to an issue involving claimants through the same deceased client – this is classically seen in a will contest for example, where two parties may be fighting over the intent of the deceased. As there is no way to determine the intent of the deceased absent the revealing of information that would be privileged if the decedent were still alive – then the communications that are relevant to the intent of the decedent could be disclosed to determine the intent of the deceased.

Breach of Duty by Lawyer to Client or vice-versa – Where a client and lawyer have a dispute as to whether or not the client or the lawyer breached a duty to the other, communications that may be relevant to show what duty was expected and whether it has been breached, may be disclosed.

Communications relevant to attested documents – If the lawyer is a witness to a document (a will, contract, acts as notary, etc.), communications pertinent to the lawyer’s attestation may be excepted from the attorney-client privilege.

Communications relevant to a matter of common interest between joint clients – Texas courts have made it clear that the attorney-client privilege applies in a common interest context when there is a pending action requirement, and no commonality of interest exists absent actual litigation. Lawyers representing different parties with joint or common interests in business matters will not be able to invoke the attorney-client privilege for the communications with each other – absent other circumstances (like joint litigation) being applicable.   

Who can invoke the Privilege?

           Thankfully, it is clearly stated in Texas Rule of Evidence 503(c) as to who may invoke the privilege. The privilege may be claimed by:

  1. The client;
  2. The client’s guardian or conservator;
  3. A deceased client’s personal representative; or,
  4. Whether or not in existence, the successor, trustee, or similar representative of a corporation, association, or other organization or entity.

The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf and is presumed to have the authority to do so.

           The client controls the privilege, but their lawyer may also claim the privilege on the client’s behalf. The lawyer must be able to do so. There may be times in a deposition or in the trial where the client may not understand the privilege or how it applies, and allowing the lawyer to do so for the client protects the client’s interests.

Attorney-Client Privilege: What exactly is privileged?

At Houston Injury Lawyers, PLLC, our firm focuses the entirety of our time and expertise on representing those who have suffered a personal injury and helping our clients through the entire recovery process – physical, emotional, and financial recovery – from their injuries. We allow our clients to tip the balance of justice into their favor through our years of experience and our devotion to our clients. Our care and preparation are core principles and keys to our success. The lawyers at Houston Injury Lawyers, PLLC, can help you navigate this issue and answer any questions that you may have. If you would like to speak to someone about your particular situation or for a free and confidential consultation, call our office at (713) 366-HURT (4878) today or visit us online www.houinjurylawyers.com.

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