Every attorney has an ethical obligation to protect the confidential information of a client. Confidential information includes both privileged and unprivileged client information. Privileged information means information that is protected by Rule 503 of the Texas Rules of Criminal Evidence, Rule 503 of the Texas Rules of Civil Evidence, or Rule 501 of the Federal Rules of Evidence. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, which is acquired by the lawyer during the course of or by reason of the representation.
An attorney must not knowingly:
- Reveal confidential information of a client or former client to a person that the client has instructed is not to receive the information or to anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the attorney’s law firm;
- Use a client’s confidential information to the disadvantage of the client unless such use is with the client’s consent;
- Use confidential information of a former client to that client’s disadvantage after the representation is concluded unless it is with the former client’s consent or the information has become generally known; or
- Use privileged information of a client for the advantage of a lawyer or of a third person unless it is with the client’s consent.
There are certain exceptions to the general proscription against an attorney revealing confidential information of a client. A lawyer may reveal confidential information:
- When the client expressly authorizes the disclosure for the purpose of carrying out representation.
- When the client consents to the disclosure after consultation.
- To the client, the client’s representatives, or the members, associates, and employee’s of the lawyer’s firm, except when otherwise instructed by the client.
- When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
- To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
- To establish a defense to a criminal charge, civil complaint, or disciplinary complaint against the lawyer or the lawyer’s associates based on conduct involving the client or the representation of the client.
- When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
- To the extent the revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.
A lawyer also may reveal unprivileged client information when the lawyer is impliedly authorized to do so in order to carry out the representation or when the lawyer has reason to believe it is necessary to do so in order to:
- Carry out the representation effectively;
- Defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
- Respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
- Prove the services rendered to a client, or the reasonable value of services, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.
There are certain circumstances under which an attorney must reveal confidential information. When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer must reveal the information to the extent the disclosure reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. Additionally, a lawyer must reveal confidential information when required to do so by Disciplinary Rules 3.03(a)(2), 3.03(b), or 4.01(b).
The lawyer-client privilege protects certain confidential communications made for the purpose of facilitating the rendition of professional legal services to a client. The rules of criminal evidence recognize a client’s right to prevent the disclosure of such information. Since the point of the rule is to protect the client’s right to prevent disclosure, a violation of the privilege may not lead to any relief from pending prosecution if no disclosure results from the violation. A client may also prevent the disclosure of any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the lawyer-client relationship.
There is also a criminal work product doctrine that may serve to shelter materials prepared during a criminal case from discovery in a civil proceeding. This form of the lawyer-client privilege protects materials such as memoranda, reports, interviews, mental impressions, conclusions, opinions, legal theories, and other materials prepared and assembled for litigation and in anticipation of litigation
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client that are made in any of the following ways:
- Between the client or the client’s representative and the lawyer or the lawyer’s representative;
- Between the lawyer and the lawyer’s representative;
- By the client, the client’s representative, the lawyer, or the lawyer’s representative to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
- Between representatives of the client or between the client and a representative of the client; or
- Among lawyers and their representatives representing the same client.
For purposes of this privilege, a client is a person, public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer. A client’s representative is one who has authority to obtain professional legal services on behalf of the client, or to act on the client’s behalf as a result of advice rendered pursuant to such professional legal services. The term lawyer refers to a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation. A lawyer’s representative is one employed by the lawyer to assist him or her in the rendition of professional legal services. This includes an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.
A communication is confidential if it is not intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Thus, the presence of a third person does not waive the privilege if the third person has a common legal interest with respect to the subject matter of the communication.
It is clear that there must be some form of professional relationship between the client and the lawyer for the lawyer-client privilege to apply. This does not mean that the attorney must actually have undertaken representation for the privilege to operate. The privilege arises when the client “consults a lawyer with a view to obtaining professional legal services”. Thus, before logically reaching any question concerning the application of the lawyer-client privilege, a determination must be made that the claim of privilege is being made by the lawyer on behalf of a client. Whether an attorney-client relationship exists is a question for the trial court to decide, and the court’s ruling will ordinarily not be disturbed on appeal.
As mentioned above, the privilege applies not only to confidential communications with the lawyer, but also to such communications with the lawyer’s representatives. However, the nonattorney to whom the disclosure is made must have been employed by the lawyer to assist the lawyer in the rendition of legal services. For example, the lawyer-client privilege does not apply to a communication with a nonattorney such as a psychiatrist who has been appointed by the court to conduct an independent examination. However, a psychiatrist employed by a lawyer falls under lawyer-client privilege.
Assuming the lawyer-client relationship is established, the privilege applies only to protect communications that are deemed to be confidential. The circumstances surrounding the communication are considered in determining if it was intended to be confidential. If the desire for confidentiality is absent, the reason for the privilege is also absent. The communication need not be oral to be protected. Written communications or preexisting documents that would be privileged from production in the hands of the client will be privileged from production in the hands of the attorney if they were transferred for the purpose of obtaining legal advice.
In order for the lawyer-client privilege to apply, the prosecution must be seeking the disclosure of the substance of a confidential communication. Therefore, the protection of the lawyer-client privilege is not invaded if no communication is involved. For example, the privilege does not apply if testimony is sought merely regarding the presence of the attorney at a particular stage of the prosecution, if the attorney is asked about matters of public record, or if testimony is sought from the attorney regarding his or her relationship with the client outside the attorney-client relationship, such as when the attorney acted as the client’s bondsman. Similarly, there is no violation when a defendant’s former attorney is called to testify at a retrospective competency hearing, as long as no confidential communications are revealed. A defendant’s physical actions toward an attorney may also fall outside the purview of the privilege.
However, under some circumstances, information that would not normally be privileged may be protected. For example, although the identity of a client or information involving the receipt of a fee from a client is not usually protected by the privilege, if the release of such information would automatically lead to a conviction or indictment of the client, the information may be privileged. This principle comes into play only if the third party who has paid the defendant’s fee is also a client of the defendant’s attorney. The lawyer-client privilege shields the identity of a client or fee information only when the revelation of such information would disclose other privileged communications, such as the confidential motive for retention of the attorney.