Understanding Attorney-Client Privilege
Privilege in law refers to the right to block certain evidence from being admitted in a case, even if it is relevant. Attorney-client privilege, like the one defined in Texas Rule 503, allows individuals consulting a lawyer for legal advice to keep their discussions confidential. Exceptions to this privilege are rare and primarily revolve around actions such as malpractice. The so-called crime/fraud exception applies when a client seeks a lawyer's assistance in criminal or fraudulent activities.
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CHAP. 12 : PRIVILEGES Prof. JANICKE FALL 2022
DEFINITION A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE EVEN THOUGH THE EV. IS RELEVANT EVEN THOUGH THE EV. IS CRUCIAL EVEN THOUGH IT COMPLIES WITH ALL THE RULES OF EVIDENCE 2022 Chap. 12 -- Privileges 2
PURPOSE TO FURTHER SOME SOCIETAL GOAL 2022 Chap. 12 -- Privileges 3
FEDERAL STANDARDS ON PRIVILEGES NO PRIVILEGE DEFINITION RULES WERE ACTUALLY ENACTED THE U.S. JUDICIAL CONFERENCE PROPOSED THE 500-SERIES OF RULES, BUT THEY DID NOT MAKE IT THROUGH CONGRESS 2022 Chap. 12 -- Privileges 4
THESE PROPOSALS ARE NOW KNOWN AS STANDARDS [ARE POSTED IN COURSE MATERIALS] 2022 Chap. 12 -- Privileges 5
TURN TO TEXAS RULES ON PRIVILEGES 2022 Chap. 12 -- Privileges 6
TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE ASSIGNED: TX RULE 503 2022 Chap. 12 -- Privileges 7
ATTORNEY-CLIENT PRIVILEGE A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON SAID OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL 2022 Chap. 12 -- Privileges 8
EXCEPTIONS VERY NARROW NEEDS OF THE OTHER SIDE DO NOT CREATE ANY EXCEPTION TO THE PRIVILEGE THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT MALPRACTICE ACTION TO COLLECT A FEE 2022 Chap. 12 -- Privileges 9
SO-CALLED CRIME/FRAUD EXCEPTION WHERE CLIENT S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN T MET (PURPOSE ISN T TO GET LEGAL ADVICE) 2022 Chap. 12 -- Privileges 10
WHEN LAWYER THEN DECLINES THE REPRESENTATION THE PRIVILEGE STANDS, PER THE DEFINITION NO LAWYER-CLIENT RELATIONSHIP IS NEEDED 2022 Chap. 12 -- Privileges 11
UNKNOWN EAVESDROPPER NO EFFECT APPARENT CONFIDENTIALITY IS ENOUGH SOME OLDER CASES CONTRA 2022 Chap. 12 -- Privileges 12
BOTH SIDES OF CONVERSATION ARE NOW INCLUDED TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND IS NOW CALLED DERIVATIVELY PRIVILEGED INDIRECT REVELATION OF THE CLIENT S STATEMENT 2022 Chap. 12 -- Privileges 13
BOTH WAYS COVERED ASSIGNED: TX R. 503(b)(1) 2022 Chap. 12 -- Privileges 14
THE CLIENT OWNS THE PRIVILEGE, MEANING: 1. ONLY SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT, i.e., TO WAIVE THE PRIVILEGE 2. ONLY SHE CAN DECIDE WHICH OF LAWYER S HELPERS, OR HER OWN HELPERS, SHOULD LEARN OF THE COMMUNICATION WHILE PRESERVING IT 2022 Chap. 12 -- Privileges 15
THE PROBLEM OF WAIVER ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE CLIENT CAN WAIVE BY TAKING ACTION: BY DISCLOSURE; or BY AUTHORIZING DISCLOSURE OF THE COMMUNICATION; or BY DESIGNATING AN AGENT (e.g., the lawyer) TO DECIDE ON DISCLOSURE OF THE COMMUNICATION CLIENT S DESIGNATION OF POWER TO WAIVE CAN BE IMPLICIT: LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE 2022 Chap. 12 -- Privileges 16
NO RIGHT TO PICK-AND-CHOOSE WAIVERS COMMON LAW: KNOWINGLY WAIVING AS TO ONE COMMUNICATION OPERATES AS A WAIVER ON ALL OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER NOW: WAIVER RE. OTHERS THAT IN FAIRNESS SHOULD BE CONSIDERED 2022 Chap. 12 -- Privileges 17
CLIENT DECISION ON WAIVER LAWYER MUST HONOR THE CLIENT S WAIVER INSTRUCTION EVEN IF EMBARRASSING TO THE LAWYER THIS IS A RESULT OF CLIENT OWNING THE PRIVILEGE 2022 Chap. 12 -- Privileges 18
WAIVER BY CONDUCT: HALF-OPEN DOOR RULE REVEALING PARTS IN TESTIMONY REVEALING ONE LAWYER COMMUNICATION WHEN THERE ARE OTHERS ON THE SAME TOPIC WAIVER BY PRODUCING PRIVILEGED DOCUMENTS IN LITIGATION R. 502 CODIFIES THE HALF-OPEN RULE OTHER COMMUNICATIONS THAT OUGHT IN FAIRNESS TO BE CONSIDERED WITH WAIVED ITEM WILL HAVE TO BE PRODUCED 2022 Chap. 12 -- Privileges 19
DISCLOSURE IN LITIGATION IS NOW LARGELY PROTECTED BY RULE ASSIGNED: FED. R. 502(b); TEX. R. 511(b)(2) 2022 Chap. 12 -- Privileges 20
WAIVER BY AFFIRMATIVE USE OF COUNSEL OPINIONS USING LAWYER S ADVICE TO GET A BENEFIT IN COURT IS AN INVOLUNTARY WAIVER E.G., TESTIFYING TO AN OPINION OF COUNSEL, TO SHOW GOOD FAITH OR LACK OF FRAUD LAWYER CAN THEN BE DEPOSED, MUST ANSWER RE. THE WHOLE TOPIC OTHER LAWYER OPINIONS ON THE TOPIC ARE ALSO WAIVED 2022 Chap. 12 -- Privileges 21
PROBLEMS/CASES 12A Bum Rap 12B Bail Jumper 12C Tipsy Client Meredith 12D Failed Venture Suburban Upjohn Osterhoudt (cont d) 2022 Chap. 12 -- Privileges 22
PROBLEMS/CASES 12E Hit and Run 12F Disclosure Was Inadvertent 12G Reluctant Lawyer 2022 Chap. 12 -- Privileges 23
MORE TEXAS RULES OF EVIDENCE
TWO MARITAL PRIVILEGES 1. THE MARITAL COMMUNICATION PRIVILEGE [ASSIGNED: TEXAS RULE 504(a)] WORDS SPOKEN DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS THIS PRIVILEGE BELONGS TO THE SPEAKING SPOUSE DOES NOT EXTEND TO CONTEMPORANEOUS ACTIONS OF THE SPEAKING SPOUSE PRIVILEGE REMAINS INTACT FOR PRE- DIVORCE COMMUNICATIONS 2022 Chap. 12 -- Privileges 25
HOW IT WORKS IN COURT, BE A WITNESS AND STILL REFUSE TO ANSWER QUESTIONS ABOUT WHAT HE/SHE SAID THE SPOUSE WHO SPOKE CAN BLOCK THE OTHER SPOUSE, IF A WITNESS, FROM REVEALING WHAT THE SPEAKING SPOUSE SAID 2022 Chap. 12 -- Privileges 26
2. THE PRIVILEGE TO REFUSE TO BE SUMMONED BY GOV T [ASSIGNED: TEX. RULE 504(b).] THIS PRIV. BELONGS TO THE WITNESS-SPOUSE, NOT THE ACCUSED SPOUSE; IT IS HER CHOICE TO WAIVE TEXAS AND FED. RULE (TRAMMEL CASE) ARE THE SAME THIS PARTICULAR PRIVILEGE ENDS WITH DIVORCE DOES NOT APPLY WHERE WITNESS-SPOUSE IS THE ALLEGED VICTIM 2022 Chap. 12 -- Privileges 27
THE NON-ACCUSED SPOUSE (WIFE) MUST TESTIFY IF SUMMONED BY THE ACCUSED SPOUSE (HUSBAND) HER PRIVILEGE IS TO REFUSE TO BE A WITNESS FOR THE PROSECUTION 2022 Chap. 12 -- Privileges 28
MANY OTHER STATES, AND COMMON LAW OPPOSITE OF THE TEXAS AND FEDERAL RULE THERE, THE PRIVILEGE TO PREVENT THE WIFE FROM TESTIFYING BELONGS TO THE HUSBAND 2022 Chap. 12 -- Privileges 29
Trammel 12H Babysitter s Testimony Montgomery 2022 Chap. 12 -- Privileges 30
EXCEPTIONS: NO SPOUSAL PRIVILEGES IN - - ACTIONS BETWEEN THE SPOUSES CRIMINAL CASE WHERE LISTENING SPOUSE WAS THE ALLEGED VICTIM A FEW OTHER SITUATIONS 2022 Chap. 12 -- Privileges 31
REVIEW EXAMPLE: HUSBAND: LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK! IF WIFE BECOMES A PROS. WITNESS (HER CHOICE): 1. SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED, but 2. HUSBAND CAN PREVENT HER FROM TESTIFYING TO WHAT HE SAID 2022 Chap. 12 -- Privileges 32
PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION D CAN T BE REQUIRED TO TESTIFY D CAN T BE OBLIGED TO WRITE OUT A CONFESSION BUT: IF D WROTE A DOCUMENT ON HIS OWN INITIATIVE, NO SELF-INCRIM. PRIVILEGE ABSENT SOME OTHER PRIVILEGE, IT CAN BE SUBPOENAED AND USED BY THE PROSECUTION 2022 Chap. 12 -- Privileges 33
COMPELLED CONDUCT IS NOT PROTECTED GIVING BODILY FLUIDS SAMPLES GIVING HANDWRITING SAMPLE GIVING DNA SAMPLE 2022 Chap. 12 -- Privileges 34
THE PROBLEM OF BUSINESS FILES THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED BY THIS PRIVILEGE GIVING THEM TO A LAWYER WON T HELP! [HAPPENS OFTEN] 2022 Chap. 12 -- Privileges 35
TEXAS CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5TH ASSIGNED: Tex. R. 513(c) 2022 Chap. 12 -- Privileges 36
HOW THE TEXAS RULE WORKS CIVIL PLAINTIFF INVOKING 5TH : IS APT TO BE NON-SUITED IN TEXAS CIVIL DEFENDANT INVOKING: WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5TH AMENDMENT IN TEXAS ALL OTHER PRIVILEGES REMAIN UNMENTIONABLE 2022 Chap. 12 -- Privileges 37
CLERGYMAN-PENITENT ASSIGNED: [TEXAS RULE 505] WORKS SIMILARLY TO LAWYER- CLIENT PRIVILEGE APPLIES IN BOTH CIVIL AND CRIMINAL CASES 2022 Chap. 12 -- Privileges 38
TRADE SECRET ASSIGNED: TEXAS RULE 507 ONLY A QUASI-PRIVILEGE COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD WORK INJUSTICE PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER 2022 Chap. 12 -- Privileges 39
PHYSICIAN-PATIENT PRIVILEGE ASSIGNED: TEXAS RULE 509 NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS and > > > 2022 Chap. 12 -- Privileges 40
PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4) OF THE RULE: NO PRIVILEGE WHERE THE PATIENT S CONDITION IS PART OF A PARTY S CLAIM OR DEFENSE WHEN WOULD IT NOT BE?? 2022 Chap. 12 -- Privileges 41
MENTAL HEALTH PROFESSIONALS ASSIGNED: TEXAS RULE 510 INCLUDES DRUG-ABUSE WORKERS AS WELL AS DOCTORS BUT: SAME LARGE EXCEPTIONS NO PRIVILEGE IN CRIMINAL CASES ALMOST NONE IN CIVIL CASES (IF PART OF A PARTY S CLAIM OR DEFENSE) 2022 Chap. 12 -- Privileges 42
PARTYS WORK PRODUCT [FED. R. CIV. P. 26 (b)(3)] IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE PARTY S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED 2022 Chap. 12 -- Privileges 43
MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE] >>> 2022 Chap. 12 -- Privileges 44
TEX. R. CIV. P. 192 IS SIMILAR TO FED. PRACTICE: COUNSEL IMPRESSIONS ARE CALLED CORE WORK PRODUCT, GENERALLY BLOCKED THE REST IS CALLED OTHER WORK PRODUCT AND CAN BE HAD BY SHOWING SUBSTANTIAL NEED LWYR MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT CAN CONTAIN CORE INFO 2022 Chap. 12 -- Privileges 45
WORK PRODUCT NOW HAS PROTECTION EVEN IN CRIMINAL CASES CAMERON v. STATE, 242 SW 3RD 15, 19 (Crim. App. 2007) 2022 Chap. 12 -- Privileges 46
JOURNALISTS PRIVILEGE FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST TEXAS HAS STATUTES CREATING THIS QUASI-PRIVILEGE >>> 2022 Chap. 12 -- Privileges 47
JOURNALISTS PRIVILEGE IN CIVIL CASES ASSIGNED:Tex. Civ. Prac. & Rems. Code 22.021 WHO IS A JOURNALIST ? 2022 Chap. 12 -- Privileges 48
THIS PRIVILEGE HAS TWO PRONGS: 1. TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, EVEN IF NOT CONFIDENTIAL 2. TO REFUSE TO DISCLOSE SOURCES ** NOTE: THE JOURNALIST S PUBLISHING OF THE COLLECTED INFORMATION IS NOT A WAIVER CAN T GET HIM TO CONFIRM 2022 Chap. 12 -- Privileges 49
LIMITS IN THE STATUTE 2022 Chap. 12 -- Privileges 50
