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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Texas Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:

1.6:101      Model Rule Comparison

Texas Rule 1.05, like Model Rule 1.6, deals with "Confidentiality of Information." Texas Rule 1.05 is considerably more detailed than Model Rule 1.6. Furthermore, Texas Rule 1.05 differs from Model Rule 1.6 in some significant ways. Certain of those differences will be outlined here. Perhaps the most significant difference between Model Rule 1.6 and Texas Rule 1.05 is this: While Model Rule 1.6 does not require disclosure under any circumstances, Texas Rule 1.05 makes disclosure mandatory under certain circumstances. See Texas Rules Rule 1.05(e)&(f) (setting forth circumstances under which disclosure is mandatory notwithstanding the lawyer's general duty to maintain the confidences of a client). Model Rule 1.6 contains only two principal paragraphs ((a) and (b)). Model Rule 1.6(b)(1) permits disclosure to the extent that the lawyer believes is reasonably necessary "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." The Texas provision mandates disclosure "[w]hen 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[.]" Texas Rules Rule 1.05(e). In such circumstances, a lawyer subject to the Texas Rules shall reveal confidential information "to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act." Id.

Model Rule 1.6(b)(2), permitting lawyer disclosure in certain 'self-defense' situations, is generally similar to certain provisions of Texas Rule 1.05, though the phraseology and precise parameters of the respective rules are not identical. Both Texas Rule 1.05 and Model Rule 1.6 recognize that a lawyer may reveal certain confidential client information when impliedly authorized to do so in order to carry out the representation. See Model Rules Rule 1.6(a); Texas Rules Rule 1.05(d)(1) (regarding unprivileged client information). The Texas Rule often differentiates between unprivileged and privileged "confidential information" for purposes of determining whether disclosure is appropriate under the rule. See Texas Rules Rule 1.05(a) (defining "confidential information" to include both privileged and unprivileged client information, with "unprivileged client information" meaning "all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course or by reason of the representation of the client").

Further details regarding Texas Rule 1.05 are set forth below.

1.6:102      Model Code Comparison

The Model Code's DR 4-101, "Preservation of Confidences and Secrets of a Client," provided model requirements regarding a lawyer's obligation to maintain the confidences of a client. The Model Code spoke in terms of a duty to maintain the "confidences and secrets of a client." These terms were defined in the Model Code as follows:

"Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

Model Code DR 4-101(A). Texas Rule 1.05, Model Rule 1.6, and DR 4-101 all generally recognize a lawyer's obligation to maintain the confidential information of a client. Each set of rules likewise recognizes that a client can consent to certain disclosure of confidential information. Like Model Rule 1.6, and unlike Texas Rule 1.05, DR 4-101 did not appear to require disclosure of confidential information under any circumstance. Rather, the Model Code provision permitted a lawyer to reveal:

•   Confidences or secrets with the consent of the client where the client's affected, but only after a full disclosure to them;

•   Confidences or secrets when permitted under Disciplinary Rules or required by law or court order;

•   The intention of his client to commit a crime and the information necessary to prevent the crime;

•   Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

Model Code DR 4-101(C).

1.6:200   Professional Duty of Confidentiality

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.1, 6.7

A lawyer has a general duty to preserve the confidentiality of confidential information provided by a client. This duty, and some exceptions to that duty, are set forth in Texas Rule 1.05, "Confidentiality of Information." The immediately following sections discuss this subject in greater detail.

1.6:210      Definition of Protected Information

Texas Rule 1.05 imposes a general duty on lawyers to maintain the secrecy of client "confidential information." Under the Texas Rules, confidential information includes both "privileged" and "unprivileged" client information. Privileged information means information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for the United States Courts and Magistrates. See Texas Rules Rule 1.05. Unprivileged client information, by contrast, means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. See id.

A Texas ethics opinion has observed that information, which was a matter of public record, given by a client to an attorney in connection with the representation was not confidential information under the predecessor rule to Texas Rule 1.05. See State Bar of Texas, Comm. on Interpretation of the Canons of Ethics, Op. 463 (1989). Subparagraph (b)(3) of current Texas Rule 1.05 provides, in pertinent part, that a lawyer generally shall not knowingly use confidential information of a former client to the disadvantage of the former client after the representation is concluded, unless the former client consents after consultation or the confidential information has become generally known. Texas Rules Rule 1.05(b)(3).

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

Subparagraph (b) of Texas Rule 1.05 generally prohibits lawyers from disclosing confidential client information. "Confidential information" is defined and discussed in 1.6:210. Certain exceptions to the general duty to maintain client confidences are discussed at 1.6:300-1.6:395. Subject to these exceptions, Rule 1.05 generally provides that a lawyer shall not knowingly reveal confidential information of a client or former client to:

•   a person that the client has instructed as not to receive the information; or

•   anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's firm.

For additional prohibitions on a lawyer's "use" of confidential information, see 1.6:230.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

Subparagraphs (b)(2)-(4) of Texas Rule 1.05 address prohibitions on a lawyer's "use" of confidential client information. These prohibitions are subject to certain exceptions, and these exceptions are discussed more fully at 1.6:300-1.6:395.

Generally speaking, Texas Rule 1.05(b) provides in pertinent part that a lawyer shall not knowingly:

•   use confidential information of a client to the disadvantage of the client unless the client consents after consultation; or

•   use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known; or

•   use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

Texas Rules Rule 1.05(b).

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

In Texas Ethics Opinion 487, a law firm agreed to represent employer A and employee B against a third party. Before beginning the representation, the law firm consulted with A and B and they signed an agreement stating, among other things, that: (i) a conflict between A and B could arise later in the representation, (ii) a conflict could arise after discovery of information from or about A and B, (iii) any such discovered information would be revealed to both A and B, (iv) any such discovered information could lead to B's being discharged or to a cause of action by A against B, (v) absent consent of both parties, the firm would not represent either A or B against the other in a subsequent suit, and (vi) the firm could continue to represent A against the third party even though the representation might adversely affect B. The opinion held under the circumstances that it was proper under Texas Rules 1.05(c)(1) and (2) for the firm to reveal to A confidential information obtained from B and to continue to represent A. Texas Rule of Civil Evidence 503(d)(5) states that there is no attorney-client privilege "[a]s to a communication relevant to a matter of common interest between 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." Tex. R. Civ. Evid. 503(d)(5). The proposed final draft of the Restatement of the Law Governing Lawyers (Mar. 29, 1996) suggests in section 125(2) that parties can vary this result by contract.

1.6:250      Information Imparted in Lawyer Counseling Programs

For a discussion of this subject, see section 8.3:400.

1.6:260      Information Learned Prior to Becoming a Lawyer

[The discussion of this topic has not yet been written.]

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.4, 6.7

Texas Rule 1.05 recognizes that a lawyer's duty to maintain client confidences is not without exception. Texas Rule 1.05 recognizes certain situations in which a lawyer is permitted to disclose confidential client information without thereby committing professional misconduct. Further, Texas Rule 1.05 recognizes a limited class of situations in which the lawyer is ethically obligated to disclose otherwise confidential client information. Certain of these exceptions are discussed at 1.6:310-1.6:395. The exceptions to the general duty to maintain client confidences are specifically set forth in subparagraphs (c) through (f) of Texas Rule 1.05.

1.6:310      Disclosure to Advance Client Interests or with Client Consent

The Texas rules recognize that a lawyer may disclose confidential client information with client consent. See e.g. Texas Rule 1.05(b)(2)-(4), (c)(2). Additionally, Texas Rule 1.05 specifically permits a lawyer to reveal unprivileged client information "[w]hen impliedly authorized to do so in order to carry out the representation." Texas Rules Rule 1.05(d)(1). Similarly, Texas Rule 1.05 recognizes that a lawyer may reveal unprivileged client information when the lawyer has reason to believe it is necessary to do so in order to carry out the representation effectively. See Texas Rules Rule 1.05(d)(2)(i). As discussed in other sections, other exceptions to the general duty of confidentiality exist as well.

1.6:320      Disclosure When Required by Law or Court Order

Texas Rule 1.05 permits a lawyer to disclose confidential client information 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. See Texas Rules Rule 1.05(b)(4). Texas Rule 1.05(f) requires a lawyer to reveal confidential information when required to do so by Texas Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). Texas Rule 3.03 generally requires lawyers to be candid to tribunals. Texas Rule 3.03 is discussed more fully at 3.3:100-3.3:600. Texas Rule 4.01(b) provides that, in the course of representing a client, a lawyer shall not knowingly "fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client." Texas Rules Rule 4.01(b).

1.6:330      Disclosure in Lawyer's Self-Defense

Under the Texas Rules, a lawyer may reveal confidential information:

•   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; or

•   to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.

See Texas Rules Rule 1.05(c)(5) & (6). Further, a lawyer also may reveal unprivileged client information when the lawyer has reason to believe it is necessary to do so in order to defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct. Texas Rules Rule 1.05(d)(2)(ii). Likewise, a lawyer may reveal unprivileged client information when the lawyer has reason to believe it is necessary to do so in order to respond to allegations in any proceeding concerning the lawyer's representation of the client, or to prove the services rendered to the client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the paying of the fee for services rendered to the client. Texas Rules Rule 1.05(d)(2)(iii) - (iv).

1.6:340      Disclosure in Fee Dispute

Texas Ethics Opinion 464 states that a lawyer may not sell delinquent client accounts receivable to a third party without violating the confidentiality provisions of Rule 1.05 unless each client involved has previously consented after consultation with the lawyer. The opinion observes: "In some cases, the fact that the lawyer was engaged by the client may be confidential; in many cases, the nature of the legal services resulting in the fee statement would be confidential; in most cases, the amount of the fee owing and the fact that the fee has not been paid would be confidential." The opinion is based on the broad scope of "confidential information" as defined in Rule 1.05(a). The opinion also provides a discussion of what constitutes effective client consent to disclosure of confidential information.

Similarly, Texas Ethics Opinion 479 holds that, absent the clients' informed consent, a law firm may not provide the names of clients or the amounts they owe the law firm to a lender to whom the law firm gives a security interest in its accounts receivable. Texas Ethics Opinion 495 holds that, absent the client's informed consent, a lawyer may not disclose confidential information such as the amount a client owes for services or information on the nature of the services to a collection agency to enable the agency to collect fees owed the lawyer. This opinion notes that such information could be disclosed "in a legal proceeding that is brought by the lawyer to collect a fee" pursuant to Rule 1.05(c)(5).

1.6:350      Disclosure to Prevent a Crime

Under the Texas Rules, a lawyer has a general duty to maintain client confidences, and commits professional misconduct by improperly disclosing such confidences. Under Texas Rule 1.05, a lawyer is permitted—but not required—to disclose confidential client information "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." Texas Rules Rule 1.05(c)(7). That is, it is not professional misconduct for the lawyer to use his or her discretion regarding disclosure in that type of situation. The Texas Rules, obligate the lawyer to make disclosure when the lawyer has confidential information "clearly establishing that is likely to result in death or substantial bodily harm to a person . . . to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act." Texas Rules Rule 1.05(c)(8) & (e).

In questions concerning disclosure of confidential information to prevent, or rectify the consequences of, a client's criminal or fraudulent act, timing of the disclosure can be critical. Texas Ethics Opinion 482 holds that confidential information may not be disclosed under Rule 1.05(c)(7) to prevent such acts unless and until the lawyer believes disclosure is necessary. In this opinion, a client's statement in an early stage of the case that he might give perjured testimony was not sufficient to give rise to such necessity. The Opinion states: "Until the...[client] definitely manifests an intent to commit perjury...the firm cannot disclose the confidential information."

In Volcanic Gardens Management Co. v. Paxson, 847 S.W.2d 343, 347 (Tex. App.—El Paso 1993, orig. proceeding), the court held that, a "fraudulent act" for purposes of Texas Rule 1.05 need not constitute legally actionable fraud, but instead, is an act that lies within the general meaning of "fraud" as defined, for example, in Black's Law Dictionary. "Fraud" and "fraudulent" are also defined in the Terminology section of the Texas Rules.

As discussed in greater detail at 3.3:100 through 3.3:800, a lawyer also may have disclosure obligations by virtue of his general duty to be candid with tribunals. In Texas Ethics opinion 480, for instance, a lawyer successfully defended a client against an involuntary bankruptcy petition filed by a single creditor. In denying the involuntary petition, the court found that a funds transfer by the defendant was not a trick, artifice, or scam. The lawyer learned from the client, months after the ruling, that the funds transfer was fraudulent. The opinion stated that, under Texas Rule 3.03(b) (dealing with candor to tribunals), the lawyer was required to make a good faith effort to persuade the client to authorize correction of the evidence concerning the funds transfer and, absent authorization, was required to make appropriate disclosures to the court without such authorization. Citing comment 10 to Rule 1.05, the opinion stated: "The dictates of Rule 1.05 are governed by a strong public policy of not affording protection to client information where the client seeks to use the services of the lawyer to aid in the commission of a crime or fraud." The opinion states that when a fraudulent or criminal act violates a lawyer's duty of candor toward a tribunal under Rule 3.03, disclosure of confidential information can be mandatory, not discretionary. Compare Texas Rules Rule 4.01 ("Truthfulness in Statements to Others"), Rule 1.02(c)-(g), esp. (c) ("A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent.").

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

"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 shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act." Texas Rules Rule 1.05(e) (emphasis added).

1.6:370      Disclosure to Prevent Financial Loss

The Texas Rules permit a lawyer to disclose confidential client information when the lawyer has reason to believe it is necessary to do so in order to prevent a client from committing a criminal or fraudulent act. Similarly, the rules permit a lawyer to make such disclosure to the extent 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. See Texas Rules Rule 1.05(c)(7) - (8).

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

[The discussion of this topic has not yet been written.]

1.6:390      Confidentiality and Conflict of Interest

Enforcement of the confidentiality provisions of Rule 1.05 commonly occurs in the context of motions for lawyer disqualification. Texas courts look to the Texas Rules for guidance in determining whether an lawyer should be disqualified from representing a party in litigation. Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995). It should be noted that Rule 1.05(a) does not limit the scope of confidentiality to documents and communications subject to evidentiary privilege, and instead includes "all information relating to a client or furnished by the client . . . acquired by the lawyer during the course of or by reason of the representation of the client." Texas Rules Rule 1.05(a) (emphasis added). For a fairly detailed discussion of this subject matter, see 1.9:100 through 1.9:400. The general concepts, however, include the following. A lawyer has a general duty to maintain the confidential information of a client. It can constitute a conflict of interest, for instance, in certain cases for a lawyer to assume a representation of a person or organization (A) where confidential information received by the lawyer from another client (B) would be relevant to the representation and could be used to the detriment of B. The conflict can arise when there is a tension between B's desire to have its confidences maintained and A's desire to have the lawyer pursue all avenues to further A's interests. The lawyer's duty to maintain client confidences generally continues after the attorney-client relationship has terminated, unless, according to Texas Rules Rule 1.05(b)(3) for instance, the information has become generally known. (See the discussion at 1.9:100 through 1.9:400.) These situations are sometimes handled by agreement, by avoidance of the potentially conflicting representation, or by a motion to disqualify the lawyer from pursuing the arguably conflicting representation.

For a couple of interesting Texas Supreme Court cases considering the possible disqualification of counsel who obtained allegedly confidential information from a non-client, see National Medical Enterprises v. Godbey, 924 S.W.2d 123 (Tex. 1996) (involving joint defense agreement), and In re Meador, 968 S.W.2d 346 (Tex. 1998) (involving unusual scenario in which challenged lawyer obtained through his client allegedly privileged information from litigation adversary).

1.6:395      Relationship with Other Rules

Paragraph (f) of Texas Rule 1.05 provides that a lawyer "shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). Texas Rule 3.03 deals with candor to tribunals (see section 3.3:100 and following sections); Texas Rule 4.01 deals with truthfulness in statements to others (see section 4.1:100 and following sections). Also relevant are paragraphs (d) and (e) of Texas Rule 1.02 (see section 1.6:200 and following sections).

1.6:400   Attorney-Client Privilege

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:301, ALI-LGL §§ 118-128, Wolfram §§ 6.3-6.5

[The discussion of this topic has not yet been written.]

1.6:410      Privileged Communications

[The discussion of this topic has not yet been written.]

1.6:420      Privileged Persons

[The discussion of this topic has not yet been written.]

1.6:430      Communications "Made in Confidence"

[The discussion of this topic has not yet been written.]

1.6:440      Communications from Lawyer to Client

[The discussion of this topic has not yet been written.]

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

[The discussion of this topic has not yet been written.]

1.6:460      Legal Assistance as Object of Communication

[The discussion of this topic has not yet been written.]

1.6:470      Privilege for Organizational Clients

[The discussion of this topic has not yet been written.]

1.6:475      Privilege for Governmental Clients

[The discussion of this topic has not yet been written.]

1.6:480      Privilege of Co-Clients

Tex. R. Civ. Evid. 503(b) provides that co- plaintiff's or defendants have a lawyer-client privilege with respect to communications with other co- plaintiff's or defendants and their lawyers or representatives or lawyer's representatives "in a pending action and concerning a matter of common interest therein."

An exception to the privilege which is set out in Tex. R. Civ. Evid. 503(b) appears in 503(d)(5). This exception provides that no privilege attaches 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."

1.6:490      Common-Interest Arrangements

[The discussion of this topic has not yet been written.]

1.6:495      Duration of Attorney-Client Privilege

[The discussion of this topic has not yet been written.]

1.6:500   Waiver of Attorney-Client Privilege

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:401, ALI-LGL §§ 128-130, Wolfram § 6.4

Texas Rule of Evidence 511 provides:

[a] person upon whom these rules confer a privilege against disclosure waives the privilege if:

(1) [he] . . . voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged . . . .

Tex. R. Evid. 511.

While an "involuntary disclosure" will not result in a waiver, courts might deem a client or attorney's "inadvertent disclosure" to be a waiver. Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992). The Granada Court explained that "a party seeking to preserve a privilege after disclosure must do more than show inadvertence; rather, the producing party has the burden of justifying preservation of the privilege by showing that the circumstances demonstrate the involuntariness of the disclosure." Id. at 227. In determining whether the disclosure was "involuntary," courts will consider the precautionary measures taken, the delay in rectifying the error, the extent of the inadvertent disclosure, and the scope of discovery. Id. at 226.

"Offensive use" waiver is recognized in Texas, subject to important limitations. As one court has expressed the general concept, "[a] plaintiff cannot use one hand to seek affirmative relief in court and with the other lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action." Republic Ins. Co. v. Davis, 856 S.W.2d 158,161 (Tex. 1993) (quoting Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985)).

The Davis court set out three requirements that trial courts must follow when determining whether a party has waived his privilege:

•   The party asserting the privilege must be seeking affirmative relief.

•   The privileged information sought must be such that, if believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted. Mere relevance is insufficient . . . [t]he confidential communication must go to the very heart of the affirmative relief sought.

•   Disclosure of the confidential communication must be the only means by which the aggrieved party may obtain the evidence.

856 S.W.2d at 163. If any one of these requirements is lacking, the trial court must uphold the privilege. Id; see also TransAmerican Natural Gas Corp. v. Flores, 870 S.W.2d 10 (Tex. 1994); National Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993).

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

[The discussion of this topic has not yet been written.]

1.6:520      Waiver by Subsequent Disclosure

[The discussion of this topic has not yet been written.]

1.6:530      Waiver by Putting Assistance or Communication in Issue

[The discussion of this topic has not yet been written.]

1.6:600   Exceptions to Attorney-Client Privilege

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 131-135, Wolfram §§ 6.4

Texas Rule of Evidence 503(d) lists five exceptions to the attorney-client privilege:

(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 . . .;

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

(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.

With respect to the crime-fraud exception, a communication is not privileged if the client knows or should have known that his contemplated acts are criminal or fraudulent. Thus, the exception turns on the client's knowledge, not the attorney's knowledge. The Texas Supreme Court recently announced two requirements of the crime-fraud exception: (1) the party seeking the evidence must establish a prima facie case of contemplated fraud, and (2) the court must find a relationship between the confidential communication and the prima facie proof of fraud. Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 227 (Tex. 1992); see also Cigna Corp. v. Spears, 838 S.W.2d 561, 568-69 (Tex. App.— San Antonio 1992, no writ).

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

See generally section 1.6:600.

1.6:620      Exception for Client Crime or Fraud

See generally section 1.6:600.

1.6:630      Exception for Lawyer Self-Protection

[The discussion of this topic has not yet been written.]

1.6:640      Exception for Fiduciary-Lawyer Communications

[The discussion of this topic has not yet been written.]

1.6:650      Exception for Organizational Fiduciaries

[The discussion of this topic has not yet been written.]

1.6:660      Invoking the Privilege and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:700   Lawyer Work-Product Immunity

Primary Texas References: TX Rule 1.05
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 136-142, Wolfram § 6.6

[The discussion of this topic has not yet been written.]

1.6:710      Work-Product Immunity

[The discussion of this topic has not yet been written.]

1.6:720      Ordinary Work Product

[The discussion of this topic has not yet been written.]

1.6:730      Opinion Work Product

[The discussion of this topic has not yet been written.]

1.6:740      Invoking Work-Product Immunity and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

[The discussion of this topic has not yet been written.]

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

[The discussion of this topic has not yet been written.]

1.6:770      Exception for Crime or Fraud

[The discussion of this topic has not yet been written.]

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