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.