Attorney-Client Privilege Beware

Clients, beware, not every communication with your attorney is protected from disclosure.

Municipal officers often see requests, made under the Texas Public Information Act, and demands, through subpoenas and the discovery process, for attorney-client communications and correspondences made between municipal officials and their respective City Attorneys.

The attorney-client privilege encourages free discussion between a lawyer and client, allowing the client to receive the full benefit of the legal system, but such privilege does not protect every lawyer-client communication. For the privilege to apply, the communication must be (1) confidential and (2) made for the purpose of helping a lawyer provide legal services to the client.

This two-prong test often causes some confusion, so it’s often best, when a request or demand for such information is made, to loop in your City Attorney’s Office to help review the information and documents prior to release or production. To review, let’s take a closer look at the nitty-gritty:

For a communication to be “confidential,” the communication must not be intended to be disclosed to anyone beyond the lawyer and client.

A lawyer will most often default to treating client communications as confidential, so the character of lawyer-client communications often depends upon the client. This means that if the client includes a third-party in the communication with his or her attorney or if the client shares a lawyer-client communication with a third-party after such communication, the client risks waiving the attorney-client privilege.

• For example, the Mayor Eastwood of Get Out of Dodge, a fictional cattle town in West Texas, sends an email to the City Attorney, seeking advice on what the City should do about a group of renegade ranchers purposefully not following the city’s Code of Ordinances. The City Attorney responds. Mayor Eastwood then forwards the City Attorney’s email to the leader of the renegade ranchers with a sassy comeback on how Get Out of Dodge was going to drive those pesky ranchers out of the city’s limits. Mayor Eastwood waived the attorney-client privilege by forwarding the City Attorney’s email to the leader of the renegade ranchers.

The second prong of attorney-client privilege is that a communication must be made for the purpose of helping a lawyer provide legal services to the client.

This communication cannot be for any other purpose and the lawyer must not be acting in a capacity other than that of providing or facilitating professional legal services to the client. It has been found that the attorney-client privilege does not apply to communications between an attorney and a client when the attorney is employed in a non-legal capacity.

• The renegade ranchers are back and causing trouble with Get Out of Dodge’s water supply. Mayor Eastwood sends the City Attorney an email containing a grouchy comment about the renegade ranchers and an invitation to Get Out of Dodge’s Fall Carnival. This communication was not made for the purpose of helping the City Attorney provide legal services to Get Out of Dodge. Copying (cc:) your City Attorney does not automatically make a communication privileged.
• Mayor Eastwood hires and instructs the City Attorney to conduct an investigation to find out how these renegade ranchers are draining the local wells and to provide an explanation of Get Out of Dodge’s legal courses of action to secure the water supply. The City Attorney provides Mayor Eastwood with her report, which contains both factual information and legal advice. The Third Court of Appeals The attorney-client privilege remains intact.

So, it’s complicated. The examples included above weave both principles of attorney-client privilege as well as other tenets of confidentiality. It’s important to remember that, ultimately, the privilege belongs to the client, and clients should consult their attorneys before revealing potentially privileged information.

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.