Attorney-client privilege is an age-old concept that ensures the confidentiality of many of the communications between you and your legal representation. But it’s not necessarily an all-encompassing principle that applies to anything and everything you say in front of a lawyer, so it’s important to know what this standard does and doesn’t protect.
Texas’ approach to attorney-client privilege expands the zone of secrecy to include the lawyer and his or her representatives (such as secretaries, assistants, and even accountants). In other words, any communication between you and your lawyer or the lawyer’s associates with the goal of obtaining legal advice falls under the umbrella of attorney-client privilege. If the principle applies, your attorney can’t be compelled to testify against you or reveal the information to a third party. And if he or she does let confidential information slip, the lawyer runs the risk of incurring sanctions. For criminal cases, the privilege extends even further — in those situations, clients have the right to prevent their attorneys from disclosing any fact that they may have learned as a result of the attorney-client relationship.
It may sound simple enough, but there are a few caveats to keep in mind. First, you must have an established relationship with the attorney for the principle to apply. There’s no hard-set rule for when such a relationship is official, but suffice it say that an unsolicited question asked to an attorney who hasn’t yet agreed to represent you probably doesn’t fall under attorney-client privilege. You can also waive your privilege if you disclose the information to a third party who falls outside the attorney-client relationship, or if the info is readily available from another source. Also, the communication must be made for the purpose of seeking legal advice, so it’s important to differentiate between legal questions and questions that pertain only to business or anything else unrelated to your legal situation.
And your attorney is never compelled to keep quiet if the information is related to the planning of a crime or fraudulent act. In fact, the State Bar of Texas not only allows a lawyer to reveal information related to a potential crime or fraud, it actually requires the lawyer to do so when the act will probably cause serious injury or death to someone else.
Because there are many unusual circumstances and odd arrangements that can arise in the context of an attorney-client relationship, it’s difficult to spell out every instance in which the privilege will or won’t apply. For more information, the State Bar of Texas has a pamphlet online that covers some common problems that clients encounter when misunderstanding the nature of the attorney-client privilege.