The Texas client confidentiality rules are much much more protective of our clients’ secrets than many criminal-defense lawyers treat them.
The basic rule is TDRPC 1.05, which describes two types of confidential information:
(a) “Confidential information” includes both “privileged information ” and “unprivileged client information.”
“Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 [sic] of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates.
“Unprivileged client information” 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.
A lawyer has more leeway to reveal unprivileged client information than to reveal privileged information. We may only reveal our clients’ privileged information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.
(2) When the client consents after consultation.
(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
But if confidential information is unprivileged, we may reveal it in the following additional circumstances:
(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.
I think most of us learned in law school that “privileged information” was the things our clients told us (“attorney-client privilege”), and “unprivileged client information” was everything else we learned in the course of representing our clients (“work-product privilege”). If I learned something in the course of representing my client, I thought, I could use it as necessary to carry out the representation. This is the rule in civil cases. But it is not true in criminal cases.
“Privileged information” is defined with reference to Texas Rule of Evidence 503, which generally defines privileged communications as communications between and among clients (and their representatives) and lawyers (and their representatives). But here’s the shocker: Rule 503 contains a “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.
(Tex. R. Evid. 503(b)(2).)
That sounds a lot like what we thought was “unprivileged client information.” But, since Rule 503(b)(2) creates a privilege covering anything the lawyer learned by reason of the attorney-client relationship, and since TDRPC 1.05 defines (ethically) privileged evidence by reference to what is (evidentiarily) privileged, anything we learn by reason of our representation of the client is privileged, and cannot be revealed except as allowed by TDRPC 1.05(c). According to that rule, to use privileged information, even to our clients’ obvious benefit, we must get their consent or their express authorization.
This obviously creates the potential for some practical difficulties.
Let’s say I learn in the course of my investigation that the complainant in a case is a convicted felon. If that were unprivileged (for purposes of the TDRPC) I would be able to reveal it (to the prosecutor or to a jury) without the client’s consent. If, however, that were privileged (as, I contend, TRE 503(b)(2) mandates), I would not be able to reveal the fact without the client’s consent.
The solution to this problem may be to include a written waiver in my contract, something to this effect:
“Privileged information” means any fact that comes to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. Client consents to the lawyer revealing privileged information when the lawyer has reason to believe it is necessary to do so in order to carry out the representation effectively.
What do you think? Would that be effective? Sufficient? Please let me know in the comments.