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  • Brian Foley

Conroe Criminal Defense Attorney - Texas Rules of Evidence Series RULE 503 - Lawyer Client Privilege

INTRODUCTION


Texas Rule of Evidence 503 or the "Lawyer Client Privilege" is more commonly known as the theory of Attorney Client Privilege. The term Lawyer and Attorney are interchangeable. That means they mean the same thing. I kind of think Attorney has a little more of a ring to it but when people ask me what I do I say, "I'm a lawyer." So whatever.


The first question is who counts as a client? Well that would be any person or corporation or really anything that could need a lawyer and is actually given legal services OR receives a consultation with a lawyer.


Now just because you have received a consultation from a lawyer does not mean that that person is in fact your lawyer. But it does mean that any information you gave that person during your consultation will be privileged and will have to remain confidential. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct holds that a lawyer shall not knowingly reveal or use confidential information to anyone or use it against a former client for any reason. The reason for this is so that the legal system can function properly and that a client may feel free to tell their lawyer even the most confidential of information.


SUPPOSED LAWYERS


Interestingly Rule 503 defines a lawyer as "a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation." Meaning that for purposes of this rule you might not actually be authorized to practice law, but if the client believes you are, then you're a lawyer for these purposes. The privilege also extends to a lawyer's representatives or staff and accountants.


WHO MAY CLAIM THE PRIVILEGE


It is the client and not the lawyer who gets to decide when to claim attorney client privilege. Now your lawyer may object for you under rule 503 but she cannot hide behind the privilege to prevent you from telling other people the conversation between yourself and your lawyer. This is however, almost always a terrible decision because when you reveal privileged information to third parties the privilege is removed and you may not assert attorney client privilege about that information again. A prosecutor may not claim the privilege for a deceased victim. Smith v. State, 770 S.W.2d 70, 71 (Tex. App. -- Texarkana 1989, no pet.). But the personal representative of a deceased client may claim the privilege for the deceased client. Swidler & Berlin v. United States, 524 U.S. 399, 410 (1998).


CRIMINAL CASES


There is a super privilege in Criminal Cases where the rule states: "In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship." RULE 503 (b)(2). This is true even if the meeting is only a consultation. Mixon v. State, 224 S.W.3d 206, 209 (Tex. Crim. App. 2007).


WORK PRODUCT


Attorney work product privilege belongs to the Attorney. This includes documents, reports, communications, memoranda, mental impressions, conclusions, opinions, or legal theories prepared and assembled . . . in actual anticipation of litigation or for trial. National Tank Co. v. Brotherton, 851 S.W.2d 193, 200 (Tex. 1993).


Brotherton creates a two part test for work product, (1) would a reasonable person conclude from the totality of the circumstances that there was a substantial chance that litigation would ensue and (2) does the party claiming the privilege have a good faith belief that there was a substantial chance of litigation and prepared the document in anticipation of that litigation. Id.





Rule 503. Lawyer–Client Privilege


(a) Definitions. In this rule:

(1) A “client” is a person, public officer, or corporation, association, or other organization or entity—whether public or private—that:

(A) is rendered professional legal services by a lawyer; or

(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.


(2) A “client’s representative” is:

(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or

(B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.


(3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.


(4) A “lawyer’s representative” is:

(A) one employed by the lawyer to assist in the rendition of professional legal services; or

(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.


(5) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) to whom disclosure is made to further the rendition of professional legal services to the client; or

(B) reasonably necessary to transmit the communication.


(b) Rules of Privilege.

(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:

(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;

(B) between the client’s lawyer and the lawyer’s representative;

(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action;

(D) between the client’s representatives or between the client and the client’s representative; or

(E) among lawyers and their representatives representing the same client.


(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.


(c) Who May Claim. 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) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.


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 authority to do so.




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