Attorney-Client Privilege

When does the privilege arise?

The attorney client privilege attaches only to a “confidential” communication
between the client and the lawyer. A confidential communication is one that the parties: (1) do not intend to be disclosed to third persons; and (2) made in
the furtherance of the rendition of professional legal services to the client.
The privilege also extends to other persons who are necessary to transmission of the communication between the attorney and client, such as secretaries and legal assistants.  A copy of Rule 503 of the Texas rules of evidence is at the bottom of this page.

What is the purpose of the attorney-client privilege?

Public policy and common law dictate that the interests of society and
effective administration of justice are best served if there is a free flow of
information between attorneys and their clients. Before that can happen,
clients must be assured that their candid conversations with their attorneys
will not be made public or used against those clients.

What is the attorney work-product privilege?

A corollary to the attorney client privilege is that of the attorney work
product doctrine. This doctrine had its formal beginning about 50 years ago
when the federal rules of evidence were first written. This doctrine holds that
opposing parties may not discover an attorney’s mental impressions or
evaluation of the case for which he or she was hired. The doctrine also
includes the attorney’s strategy for the client’s case and any evaluation of
its weaknesses. Before the privilege may be asserted, the attorney must
establish that the work product he or she wants to keep secret was developed in anticipation of litigation. The documents may not be withheld if they merely reveal the facts that are the basis of the lawsuit.

Is the attorney client privilege absolute?

The attorney-client privilege is not absolute. In rare cases, the attorney must
yield the privilege to superior social interests in preventing or terminating
crime or fraud. Some proven examples of when the privilege does not apply or does not attach are as follows: (1) no attorney-client privilege if the client
hires an attorney to help commit a fraud or crime; (2) if two or more clients
hire the same lawyer in matters of common interest and later sue each other,
the privilege may be waived if the lawyer becomes a witness in the dispute; (3)
if the lawyer and client sue each other and the suit involves issues of the breach of a duty, the privilege is waived; (4) when a lawyer witnesses the
signing of a document, such as a will, the privilege is waived.


(a) Definitions. As used in this rule:

    (1) A “client” is a person, public officer, or 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 that lawyer.

    (2) A “representative of the client” is:

    • (A) a person having authority to obtain professional legal services, or to act
      on advice thereby rendered, on behalf of the client, or

      (B) any other person who, for the purpose of effectuating legal representation
      for the client, makes or receives a confidential communi-cation while acting in
      the scope of employment for the client.

    (3) A “lawyer” is a person authorized, or reasonably believed by the client to
    be authorized, to engage in the practice of law in any state or nation.

    (4) A “representative of the lawyer” is:

    • (A) one employed by the lawyer to assist the lawyer 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 to whom 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.

(b) Rules of Privilege.

    (1) General rule of privilege. 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:
    • (A) between the client or a representative of the client and the client’s lawyer
      or a representative of the lawyer;

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

    • (C) by the client or a representative of the client, or the client’s lawyer or a
      representative of the lawyer, to a lawyer or a representative of a lawyer
      representing another party in a pending action and concerning a matter of
      common interest therein;

      (D) between representatives of the client or between the client and a
      representative of the client; or

    • (E) among lawyers and their representatives representing the same client.
    (2) Special rule of privilege in criminal cases. In criminal cases, a
    client has a privilege to prevent the lawyer or lawyer’s representative from
    disclosing any other fact which 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. The privilege may be claimed
by the client, the client’s guardian or conservator, the personal
representative of a deceased client, or the successor, trustee, or similar
representative of a corporation, association, or other organization, whether or
not in existence. The person who was the lawyer or the lawyer’s representative
at the time of the communication is presumed to have authority to claim the
privilege but only on behalf of the client.

(d) Exceptions. There is no privilege under this rule:

    (1) Furtherance of crime or fraud. If the services of the lawyer were
    sought or obtained to enable or aid anyone to commit or plan to commit what the
    client knew or reasonably should have known to be a crime or fraud;

    (2) Claimants through same deceased client. As to a communication
    relevant to an issue between parties who claim through the same deceased
    client, regardless of whether the claims are by testate or intestate succession
    or by inter vivos transactions;

    (3) Breach of duty by a lawyer or client. As to a communication
    relevant to an issue of breach of duty by a lawyer to the client or by a client
    to the lawyer;

    (4) Document attested by a lawyer. As to a communication relevant to an
    issue concerning an attested document to which the lawyer is an attesting
    witness; or

    (5) Joint clients. As to a communication relevant to a matter of common
    interest between or among two or more clients if the communication was made by
    any of them to a lawyer retained or consulted in common, when offered in an
    action between or among any of the clients.