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Criteria for Attorney-Client Privilege to Apply in the Real World

Most people are aware that the attorney-client privilege exists, even if they have never been represented by an attorney themselves. However, partially due to its portrayal in pop culture (anyone remember the “put a dollar in my pocket” scene from Breaking Bad?), there are many misconceptions about when the privilege applies and to what extent. For example, merely carbon copying your attorney on an email does not necessarily make the email privileged.

The attorney-client privilege began in common law (i.e. court decisions), but it has since been enacted legislatively in most, if not all, states. In Texas, the privilege has primarily been enacted by Rule 503 of the Texas Rules of Evidence. Rule 503 is somewhat complex, providing definitions, the general rule establishing the privilege, and exceptions. However, the “test” for whether a communication is privileged in Texas can be summarized as follows:

  1. the communication was made to facilitate the rendition of professional legal services to the client;
  2. the communication was between or among clients, client representatives, lawyers, and lawyer representatives;
  3. the communication was confidential; and
  4. the communication has remained confidential.

The first element of the test concerns the nature of the communication. If you email your attorney a recipe for moussaka, it is unlikely that the email will be privileged unless you can show that it was somehow “to facilitate the rendition of professional legal services.”

The second element concerns who was directly involved in the communication. It may surprise you to learn that the attorney-client privilege can sometimes apply even when neither the attorney nor the client was involved in the communication. For example, if a client’s bookkeeper communicates with the attorney’s paralegal, the attorney-client privilege may apply to the communication if it meets all the other elements.

The third element concerns confidentiality, which is a matter of intent. Under Rule 503, “A communication is ‘confidential’ if not intended to be disclosed to third persons other than those: (A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication.” A communication between a lawyer and a client that occurs in an elevator while no one else is present would be considered confidential, but if another person is present in the elevator, the intent to keep the communication from being disclosed to that person would need to be manifested, such as by whispering, for the communication to be considered confidential. However, depending on the circumstances, even whispering may not be sufficient.

The fourth element also concerns confidentiality, but this pertains to disclosure of the communication after it was made, rather than while it was made. Oddly, when the client is an organization and it takes an action of a majority of the organization’s governing body to constitute an action of the organization, a disclosure made by one member of the governing body, even if intentional, in some cases may not affect the confidentiality of the communication.

Even when a communication meets the elements of the test set out above, there are some exceptions to the attorney-client privilege which mean that it cannot be asserted in certain circumstances. I’ll save the discussion of those exceptions for another time, but I will give you an appetizer: almost all of the communications between Walter White and his attorney, Saul Goodman, in Breaking Bad would fall under the “furtherance of crime or fraud” exception.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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