ATTORNEY-CLIENT AND
WORK PRODUCT PRIVILEGES
A. MICHELLE MAY
McCurley, Kinser, McCurley, & Nelson, L.L.P.
5950 Sherry Lane, Suite 800
Dallas, Texas 75225
Tel: (214) 273-2400
Fax: (214) 273-2470
Advanced Juvenile Law Conference
Juvenile Law Section, State Bar of Texas
Austin, Texas
February, 2000
TABLE OF CONTENTS
1. Introduction..........................................................................................................................7
2. Attorney-Client Privilege.....................................................................................................7
1. Elements of the Privilege. ........................................................................................7
2. Confidential Communications. ................................................................................7
3. Special Criminal Privilege. ......................................................................................9
4. Covered by Privilege................................................................................................9
5. Application of the Privilege. ..................................................................................10
6. Exceptions and Limitations....................................................................................10
1. Crime/fraud exception. ..............................................................................11
2. Breach of duty............................................................................................11
3. Joint clients ................................................................................................11
4. Waiver........................................................................................................11
5. Offensive Use.............................................................................................11
III. Work-Product Privilege .....................................................................................................12
1. Civil Work-Product Privilege. ...............................................................................12
2. Criminal Work-Product Privilege ..........................................................................13
3. Scope of the Privilege ............................................................................................14
4. Exceptions and Limitations....................................................................................15
IV. Application to Juvenile Law ..............................................................................................15
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 3
TABLE OF AUTHORITIES
FEDERAL CASES
Hickman v. Taylor, 329 U. S. 495, 511, 67 S.Ct. 385 (1947)........................................................13
Modern Woodmen of Am. v. Watkins, 132 F.2d 352, 354 (5th Cir. 1942) ....................................9
United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y. 1991).....................................................10
United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160 (1975) .........................................13, 14
United States v. Tyler, 745 F.Supp. 423 (W.D.Mich. 1990) .........................................................11
STATE CASES
Alba v. State, 492 S.W.2d 555 (Tex. Crim. App. 1973)................................................................14
Ballew v. State, 640 S.W.2d 237, 239-40 (Tex. Crim. App. 1980)...............................................11
Bearden v. Boone, 693 S.W.2d 25, 27-28 (Tex. App. – Amarillo 1985, orig. proceeding) ..........11
Borden Inc. v. Valdez, 773 S.W.2d 718, 720-21 (Tex. App. – Corpus Christi 1989, orig.
proceeding).....................................................................................................................................10
Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978)...............................................................14
Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982)(en banc).......................................10, 11
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 4
Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. – Dallas 1994, writ dism’d) ...............................17
Cameron Co. v. Hinojosa, 760 S.W.2d 742, 746 (Tex. App. – Corpus Christi 1988, orig.
proceeding).......................................................................................................................................9
Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997).................................................. 15-16
Cathey v. State, 467 S.W.2d 472, 473-74 (Tex. Crim. App. 1971) ................................................ 9
Childress v. Tate, 148 S.W. 843, 844 (Tex. Civ. App. – Fort Worth 1912, writ ref’d)...................9
Clayton v. Canida, 233 S.W.2d 264, 266 (Tex. Civ. App. – Texarkana 1949, no writ)..................9
Cole v. Gabriel, 822 S.W.2d 296 (Tex. App. – Fort Worth 1991, orig proceeding) .....................11
Coleson v. Bethan, 931 S.W.2d 706 (Tex. App. – Fort Worth 1996, no writ) ..............................17
Dewitt and Rearick, Inc. v. Ferguson, 699 S.W.2d 692, 693 (Tex. App. – El Paso 1985, orig
proceeding).....................................................................................................................................11
Dillard Dep’t Stores, Inc. v. Sanderson, 928 S.W.2d 319, 321 (Tex. App. – Beaumont 1996, orig.
proceeding).....................................................................................................................................16
Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 634 (Tex. App. – Amarillo
1983, writ ref’d n.r.e.) ....................................................................................................................10
Enos v. Baker, 751 S.W.2d 946, 48-49 (Tex. App. – Houston [14th Dist.] 1988, orig proceeding)9
GAF Corp. v. Caldwell, 839 S.W.2d 149, 151 (Tex. App. – Houston [14th Dist.] 1992, orig
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 5
proceeding).....................................................................................................................................11
Gulf Oil Corp. v. Fuller, 695 S.W.2d 769 (Tex. App. – El Paso 1985, orig. proceeding).............10
Hoffman v. State, 514 S.W.2d 248 (Tex. Criml App. 1974) .........................................................14
Huie v. DeShazo, 922 S.W.2d 920, 921 (Tex. 1996) ......................................................................8
In Re D. Z., 869 S.W.2d 561 (Tex. App. – Corpus Christi 1993, writ denied) ............................10
In Re D.A.S., 951 S.W.2d 528 (Tex. App. – Dallas 1997, no writ) ..............................................17
Jayne v. Bateman, 129 P.2d 188 (Ok. 1942)..................................................................................18
Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App. – Eastland 1979, no
writ)
........................................................................................................................................................10
McGrede v. Rembert Nat’l. Bank, 147 S.W.2d 580, 584 (Tex. Civ. App. – Texarkana 1941, writ
dism’d judgm’t cor.) ........................................................................................................................9
Morton v. Smith, 44 S.W. 683, 684 (Tex. Civ. App. – 1898, no writ)..........................................11
Mott v. State, 543 S.W.2d 623 (Tex. Criml App. 1976)................................................................14
National Sur. Corp. v. Dominguez, 715 S.W.2d 67, 69 (Tex. App. – Corpus Christi 1986, orig.
proceeding).......................................................................................................................................9
National Tank Co. v. Brotherton, 851 S.W.2d 193, 203-04 (Tex. 1993) ......................................16
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 6
Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995) .......................................15
Ott v. State, 627 S.W.2d 218, 225 (Tex. App. – Fort Worth 1981, pet ref’d) .........................13, 14
Owens-Corning Fiberglas Crop. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991).........................13
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164-65 (Tex. 1993) ................................................16
Richardson v. State, 744 S.W.2d 65, 74-76 (Tex. Crim. App. 1987), vacated on other grounds,
492 U.S. 914, 109 S.Ct. 3235 (1989).............................................................................................11
Rosebud v. State, 50 Tex. Crim. 475, 98 S.W. 858 (1906) ...........................................................10
Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997), cert. denied, ___ U.S. ___, 118 S.Ct.
1526 (1998)....................................................................................................................................15
State v. Lowry, 802 S.W.2d 669, 673 (Tex. 1991) ........................................................................16
Tex. Dept. of Mental Health and Mental Retardation v. Davis, 775 S.W.2d 467, 73-74 (Tex.
App. – Austin 1989, orig proceeding)..............................................................................................9
Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993) ............................................15
West v. Solito, 563 S.W.2d 240 (Tex. 1978)...................................................................................8
Wilson v. State, 705 S.W.2d 719 (Tex. App. – Texarkana 1986, no pet. h.) ..........................10, 11
Wood v. McCown, 784 S.W.2d 126, 128-29 (Tex. App. – Austin 1990, orig. proceeding) .........15
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 7
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 8
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 9
STATE STATUTES
Tex. Civ. Prac. & Rem. Code §16.001 ..........................................................................................18
Tex. Civ. Prac. & Rem. Code §16.003 ..........................................................................................18
Tex. Crim. Proc. Code art. 646 (1856). ...........................................................................................8
Tex. Crim. Proc. Code art. 38.10 ...................................................................................................10
Tex. Crim. Proc. Code art 39.14 ....................................................................................................14
Tex. Disciplinary R. Prof’l Conduct 1.05 ......................................................................................15
Tex. Fam. Code §51.17............................................................................................................10, 13
Tex. Fam. Code §51.09..................................................................................................................17
Tex. R. Evid. 503 .................................................................................................8, 9, 10, 11, 16, 17
Tex. R. Civ. P. 192.5....................................................................................................13, 14, 15, 16
OTHER AUTHORITIES
Advisory Committee’s Note to Proposed Federal Rule 503................................................ 9, 10-11
1 Steven Goode, et. al., Guide to the Texas Rules of Evidence: Civil and Criminal §503.1 (2d ed.
1993). ...............................................................................................................................................8
McCormick, Evidence, §87 (4th ed. 1992).......................................................................................8
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 10
ATTORNEY-CLIENT AND
WORK-PRODUCT PRIVILEGES
By A. Michelle May
unchanged in Texas law today. Its purpose
1. Introduction is the promotion of unrestrained
communication and contact between the
This article is intended to overview the lawyer and client in all matters in which the
application of the attorney-client and work- attorney’s professional advice or services are
product privileges to juvenile cases. This is sought, without fear that these confidential
a relatively unlitigated area, and therefore, communications will be disclosed by the
requires interpretation and extrapolation attorney, voluntarily or involuntarily, in any
from other areas. I have also included a legal proceeding. Huie v. DeShazo, 922
discussion of my theory regarding the S.W.2d 920, 921 (Tex. 1996); West v.
application of “a client’s representative” to Solito, 563 S.W.2d 240 (Tex. 1978).
the juvenile client context.
1. Elements of the privilege.
II. Attorney-Client Privilege
The attorney-client privilege in Texas
The attorney-client privilege traces its is defined in Rule 503(b):
ancestry back to the reign of Elizabeth I and
beyond. 1 Steven Goode, et. al., Guide to A client has a privilege to refuse
the Texas Rules of Evidence: Civil and to disclose and to prevent any
Criminal §503.1 (2d ed. 1993). Previously, other person from disclosing
however, the privilege was premised on a confidential communications
consideration for the oath and honor of the made for the purpose of
attorney. Id. In the 18th century, this facilitating the rendition of
rationale fell into disrepute, and the professional legal services to the
justification for the privilege shifted to a client.
focus on the need for lawyers to be fully
apprised of the facts in order to provide Tex. R. Evid. 503(b).
effective representation. Id., citing
McCormick, Evidence, §87 (4th ed. 1992). 2. Confidential communications.
In Texas, the attorney-client privilege Rule 503(a)(5) defines confidential
was accorded statutory recognition early in communications as follows:
the state’s history. Goode, supra, §503.1,
citing Tex. Crim. Proc. Code art. 646
(1856). The privilege continues virtually
A communication is “confidential” if not intended to
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 11
be disclosed to third persons when reasonably necessary for transmitting
other than those to whom the communication or for the purpose of
disclosure is made in furtherance furthering the rendition of legal services, the
of the rendition of professional communication is deemed confidential and
legal services to the client or qualifies for the privilege. However, the
those reasonably necessary for failure of a client to take reasonable
the transmission of the precautions to ensure confidentiality may
communication. bear on intent. See National Sur. Corp. v.
Dominguez, 715 S.W.2d 67, 69 (Tex. App.
Tex. R. Evid. 503(a)(5). – Corpus Christi 1986, orig. proceeding);
Tex. Dept. of Mental Health and Mental
The attorney-client privilege relates to Retardation v. Davis, 775 S.W.2d 467, 73-
communications made for the purpose of 74 (Tex. App. – Austin 1989, orig
facilitating the delivery of professional legal proceeding). A client’s decision to divulge
advice and services to the client, but only the communication to other persons may
when the attorney-client relationship has show that the client never intended his
been established. However, communications with counsel to be
communications made after the attorney has confidential. Cameron Co. v. Hinojosa,
declined employment remain unprivileged. 760 S.W.2d 742, 746 (Tex. App. – Corpus
See McGrede v. Rembert Nat’l. Bank, 147 Christi 1988, orig. proceeding).
S.W.2d 580, 584 (Tex. Civ. App. –
Texarkana 1941, writ dism’d judgm’t But, not all communications made in
cor.). The privilege only attaches if the the presence of or disclosed to third parties
client consulted the attorney for the purpose are left unprotected by the privilege.
of obtaining professional legal services. The Disclosures made to further the rendition of
attorney must be consulted in his capacity as legal services to the client are deemed
an attorney. For example, if the attorney is confidential. Thus, third parties such as
acting as an accountant, bail bondsman, spouses, parents, business associates, or
friend, or otherwise, the privilege is joint clients may be included. See Advisory
inapplicable. Clayton v. Canida, 233 Committee’s Note to Proposed Federal Rule
S.W.2d 264, 266 (Tex. Civ. App. – 503. Further, when a third person is
Texarkana 1949, no writ); Cathey v. State, reasonably necessary to transmit
467 S.W.2d 472, 473-74 (Tex. Crim. App. communications between lawyer and client
1971); Modern Woodmen of Am. v. (such as an interpreter), his presence does
Watkins, 132 F.2d 352, 354 (5th Cir. 1942); not destroy confidentiality. Id.
Childress v. Tate, 148 S.W. 843, 844 (Tex.
Civ. App. – Fort Worth 1912, writ ref’d).
By focusing on intent, the rule protects
clients from eavesdroppers. When the
communication is made, if the parties intend
that it be disclosed to third persons only
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 12
Verbal exchanges qualify as facts not necessarily confidential in nature,
communications, regardless of whether the which came to the knowledge of the lawyer
words are spoken or written. So, documents or lawyer’s representative by reason of the
prepared to facilitate the attorney-client attorney-client relationship. Tex. R. Evid.
relationship are communications. Enos v. 503(b)(2). This rule was derived from
Baker, 751 S.W.2d 946, 48-49 (Tex. App. – former article 38.10 of the Code of Criminal
Houston [14th Dist.] 1988, orig Procedure, which was repealed and replaced
proceeding). However, documents that by this rule.
antedate the relationship are not covered and
cannot be immunized from disclosure by It is likely that the courts will apply
merely placing them in the attorney’s hands. this rule to juvenile cases, despite the
Communications may be made by conduct, restrictions. First, it is formerly part of
such as facial as expressions, as well as by chapter 38, which has been specifically
words. applied to juvenile cases. Tex. Fam. Code
§51.17(c). Second, juvenile cases are quasi-
There is a question regarding whether criminal in nature and are afforded the same
there is a privilege regarding the client’s protections and due process requirements as
identity and fee arrangements. Normally, in adult criminal proceedings. In Re D. Z.,
Texas follows the widely accepted common 869 S.W.2d 561 (Tex. App. – Corpus
law rule that such matters are not shielded Christi 1993, writ denied).
from disclosure. Borden, Inc. v. Valdez,
773 S.W.2d 718, 720-21 (Tex. App. – 4. Covered by privilege.
Corpus Christi 1989, orig. proceeding);
Duval County Ranch Co. v. Alamo Lumber The privilege covers communications
Co., 663 S.W.2d 627, 634 (Tex. App. – between or among the client; the client’s
Amarillo 1983, writ ref’d n.r.e.). representative; the lawyer; the lawyer’s
However, there are narrowly carved representative; or the client, client’s
exceptions to this general rule. For example, representative, lawyer or lawyer’s
where revelation of the fee arrangements representative representing another party in a
would tend to implicate the client in the pending action and concerning a matter of
commission of a crime or to show an common interest in the pending action. Tex.
admission on his part subjecting him to civil R. Evid. 503(b)(1). Note, however, that
liability, the privilege remains intact. Jim statements between co-defendants, without a
Walter Homes, Inc. v. Foster, 593 S.W.2d lawyer present, may not be privileged.
749, 752 (Tex. Civ. App. – Eastland 1979, Compare United States v. Gotti, 771
no writ). F.Supp. 535, 545 (E.D.N.Y. 1991), with
Gulf Oil Corp. v. Fuller, 695 S.W.2d 769
3. Special criminal privilege. (Tex. App. – El Paso 1985, orig.
proceeding).
In criminal cases, there is a special
privilege that prevents the lawyer or
lawyer’s representative from disclosing any
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 13
A “client” is a natural person who, or someone employed by the lawyer to assist in
any kind of entity which, is rendered the rendition of legal services. Tex. R. Evid.
professional legal services by a lawyer, or 503(a)(4). So, communications made to
who consults a lawyer with a view to office personnel such as law clerks and
obtaining legal services from him. Tex. R. secretaries fall within the privilege’s scope.
Evid. 503(a)(1). A representative of the See Wilson at 720; But see, Morton v.
client is one having authority to obtain Smith, 44 S.W. 683, 684 (Tex. Civ. App. –
professional legal services, or to act on 1898, no writ). In addition, it has become
advice rendered pursuant thereto, on behalf generally accepted that the scope of the
of a client. Id. It has been held, generally, attorney-client privilege encompasses agents
that the privilege extends only to the whose services are required by the attorney
attorney and persons who are the media of in order to properly prepare his client’s case.
communication between him and the client. Ballew v. State, 640 S.W.2d 237, 239-40
Burnett v. State, 642 S.W.2d 765 (Tex. (Tex. Crim. App. 1980). This applies to
Crim. App. 1982)(en banc); Wilson v. consulting expert witnesses only. Where a
State, 705 S.W.2d 719 (Tex. App. – psychiatrist is retained to examine a client
Texarkana 1986, no pet. h.). Since at least and advise the lawyer concerning the client’s
1885, the privilege has been held to include mental state, communications made to and
friends or witnesses acting with the attorney by the expert are privileged. Burnett at 769;
and the individual client for the provision of Ballew at 239-40. When an expert is hired
the legal services. Rosebud v. State, 50 with the expectation that he will testify at
Tex. Crim. 475, 98 S.W. 858 (1906). trial, there is no intention that the
communications will remain confidential.
A lawyer is a person authorized, or
reasonably believed by the client to be 5. Application of the privilege.
authorized, to engage in the practice of law
in any state or nation. Id. The lawyer need The attorney-client privilege belongs
not be a member of the bar of the to the client and lasts, unless waived, as long
jurisdiction in which his counsel is sought. as the client desires. It is not affected by the
See Advisory Committee’s Note to Proposed resolution of the particular controversy or
Federal Rule 503. Further, sometimes the termination of the attorney-client
lawyer need not be a lawyer – confidential relationship. Bearden v. Boone, 693
communications by a client to a person he S.W.2d 25, 27-28 (Tex. App. – Amarillo
reasonably believes to be a lawyer fall 1985, orig. proceeding).
within the privilege. See, e.g., United States
v. Tyler, 745 F.Supp. 423 (W.D.Mich. Although the primary matter protected
1990); But see, Richardson v. State, 744 by the privilege is a communication from the
S.W.2d 65, 74-76 (Tex. Crim. App. 1987), client to the lawyer, the statements and
vacated on other grounds, 492 U.S. 914, advice of the attorney are privileged as well.
109 S.Ct. 3235 (1989). Dewitt and Rearick, Inc. v. Ferguson, 699
S.W.2d 692, 693 (Tex. App. – El Paso
A representative of the lawyer is 1985, orig proceeding). The privilege
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 14
attaches not just to the legal advice, but also information. GAF Corp. v. Caldwell, 839
to the complete communication between the S.W.2d 149, 151 (Tex. App. – Houston
client and the attorney, including [14th Dist.] 1992, orig proceeding).
communications containing factual
The privilege may be claimed by the were obtained in order to commit or plan to
client or client’s representative; the client’s commit a fraud.
guardian or conservator; the personal
representative of a deceased client; or the 2. Breach of Duty
successor, trustee, or similar representative
of a client that is a corporation, association, No privilege extends to a
or other organization, whether or not in communication relevant to an issue of
existence. Tex. R. Evid. 503(c). The breach of duty by a lawyer to the client or by
client’s lawyer or lawyer’s representative at the client to the lawyer.
the time of the communication may also
claim the privilege but only on behalf of the 3. Joint Clients
client. Id. So, the attorney has no standing
to claim the privilege in his or her own Communications involving joint
behalf. Cole v. Gabriel, 822 S.W.2d 296 clients may not be privileged. When a
(Tex. App. – Fort Worth 1991, orig communication is relevant to a matter of
proceeding). common interest between or among two or
more clients, and the communication was
F. Exceptions and Limitations made by any of them to a lawyer retained or
consulted in common, there is no privilege
The attorney-client privilege contains a when the communication is offered in an
number of specific exceptions. These action between or among any of the clients.
exceptions also apply to the work-product
doctrine. 4. Waiver
The attorney-client privilege may be
1. Crime/fraud exception waived by the client. Thus, the client may
consent to the giving of testimony by his
There is no privilege if the services of attorney in respect to privileged
counsel were sought or obtained to enable or communications. On the other hand, the
aid anyone to commit or plan to commit attorney may not ordinarily disclose
what the client knew or reasonably should privileged communications over the client’s
have known to be a crime or fraud. The objection.
crime-fraud exception applies only when a
prima facie case is made of contemplated The privilege is waived when the client
fraud. The fact that the cause of action voluntarily testifies to the communication or
involves fraudulent conduct is insufficient. permits another person to do so without
The attorney-client privilege is lost only objection.
when the legal communications or services
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 15
The privilege must be raised with the discussion below regarding what third
specificity or it is waived. parties may be included within the
privilege.) However, the work-product
Disclosure of attorney-client privileged privilege is intended to prevent the opposing
information to third persons waives the party to the litigation from obtaining the
privilege. By definition, the information; therefore, disclosure of work-
communications are intended to be kept product to third persons who do not disclose
confidential between the attorney and client. it to the opposing party does not necessarily
Therefore, disclosing the communication to waive the work-product privilege.
a third party is an absolute waiver. (But, see
1. Offensive Use
The work-product privilege is derived
A party seeking affirmative relief may from the landmark United States Supreme
not use a privilege to prevent an opposing Court opinion of Hickman v. Taylor:
party from discovering outcome
determinative information regarding the Proper presentation of a client’s
nature of the claim. An offensive use of a case demands that [the attorney]
privilege may be found even if the privilege assemble information, sift what
is asserted as a “defense to a defense” by a he considers to be the relevant
party seeking affirmative relief. The from the irrelevant facts, prepare
elements of the offensive use waiver are as his legal theories and plan his
follows: strategy without undue and
needless interference. . . . This
1. The party asserting the privilege is work is reflected, of course, in
seeking affirmative relief. interviews, statements,
2. The privileged information sought memoranda, correspondence,
must be such that, if believed by the briefs, mental impressions,
fact finder, in all probabilty it would be personal beliefs, and countless
“outcome determinative” of the cause other intangible ways – aptly
of action asserted. Mere relevance is though roughly termed ‘work
inusfficient, a contradiction in position product of the lawyer’.
without more is insufficient, and the
confidential communication must go to Hickman v. Taylor, 329 U. S. 495, 511, 67
the very heart of the affirmative relief S.Ct. 385 (1947).
sought.
3. Disclosure of the confidential Thus the work-product doctrine, unlike
communication is the only means by the attorney-client privilege is not concerned
which the aggrieved party may obtain with the protection of client confidences.
the evidence. Rather, its purpose is to shelter the mental
processes of the attorney by providing a
privileged area within which the lawyer can
III. Work-Product Privilege analyze and prepare the case. United States
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 16
v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160 (Tex. 1991).
(1975); See also Owens-Corning Fiberglas
Crop. v. Caldwell, 818 S.W.2d 749, 750
It is unclear whether the Texas civil or Texas Rule of Civil Procedure 192.5
criminal work product privilege applies to provides that work product is not
juvenile cases. The civil privilege is found discoverable. “Work product” is now
in the civil discovery rules. Tex. R. Civ. P. defined as material prepared or mental
192.5. As the civil discovery procedures impressions developed in anticipation of
have been held inapplicable to juvenile litigation or for trial by or for a party or a
proceedings, the civil work product privilege party’s representatives. Work product also
may not apply either. Tex. Fam. Code encompasses a communication made in
§51.17. The criminal work product anticipation of litigation or for trial between
privilege is contained in relatively a party and the party’s representatives or
undeveloped case law. See Nobles at 238, among a party’s representatives.
2170; Ott v. State, 627 S.W.2d 218, 225
(Tex. App. – Fort Worth 1981, pet ref’d). The new discovery rules divide work-
The law is undeveloped due to the fact that product into two categories. First, “core
discovery in adult criminal proceedings is work-product” is defined as the work
one-sided, so the opportunity to litigate the product of an attorney or an attorney’s
work product privilege does not arise very representative that contains the attorney’s or
often. Since it is a yet unresolved point of the attorney’s representative’s mental
juvenile law, both civil and criminal impressions, opinions, conclusions, or legal
privileges will be discussed. theories. Core work product is NEVER
discoverable.
A. Civil Work-Product Privilege. Other materials, mental impressions,
and communications that fall within the
The attorney work-product privilege definition of work product but do not qualify
exemption was added to the Texas civil as core work-product are discoverable only
discovery rules in 1973. The 1999 upon a showing that the party seeking
amendments to the Texas Rules of Civil discovery has a substantial need for the
Procedure made a wholesale revision to this material in the preparation of the party’s
privilege. The new rule defines the scope of case, and that the party is unable to obtain
the privilege and expressly absorbs the the substantial equivalent of the material by
traditional party communication privilege other means without undue hardship.
into the work product privilege.
Significantly, the formerly separate B. Criminal Work-Product
privileged status for witness statements Privilege.
prepared or taken in anticipation of litigation
has been expressly eliminated and witness The work-product doctrine is equally
statements are not work product, even if applicable to both criminal and civil
made in anticipation of litigation. litigation. As the United States Supreme
Court stated in Nobles:
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 17
or innocence demand that
Although the work-product adequate safeguards assure the
doctrine most frequently is thorough preparation and
asserted as a bar to discover in presentation of each side of the
civil litigation, its role in assuring case.
the proper functioning of the
criminal justice system is even Nobles at 238, 2170. The work product
more vital. The interests of privilege was incorporated in Texas
society and the accused in common law for criminal cases in 1982. Ott
obtaining a fair and accurate at 224.
resolution of the question of guilt
Almost all of the Texas criminal cases prosecution witness. Washington v. State,
discussing work product relates to the 856 S.W.2d 184, 187 (Tex. Crim. App.
prosecutor’s right to resist discovery. Tex. 1993). After the defense cross-examined the
Crim. Proc. Code §39.14. That provision witness concerning some statements he
permits the defendant, upon showing of made during the interview, the trial court
good cause, to obtain copies of several types ordered the production of the tape and
of materials from the prosecution, except the allowed the prosecution to play it for the
written statements of witnesses and the work jury. The Court of Criminal Appeals
product of counsel and their investigators. reversed, holding that the tape recording was
Id.. The Court of Criminal Appeals had work product because the interview was
interpreted this work-product exemption to conducted to prepare the defense case for
reach offense or invetigative reports trial. Id. at 189. The Court noted that the
prepared by the police, internal files or interview was aimed at gathering
papers of the prosecution, statements information for impeachment purposes and
prepared after interviews of prospective aiding the defense in evaluating the state’s
witnesses, and reports regarding chemical case. Id. at 188.
analyses. Brem v. State, 571 S.W.2d 314
(Tex. Crim. App. 1978); Mott v. State, 543 The Court reaffirmed this approach to
S.W.2d 623 (Tex. Criml App. 1976); work product in Skinner v. State. Skinner v.
Hoffman v. State, 514 S.W.2d 248 (Tex. State, 956 S.W.2d 532 (Tex. Crim. App.
Criml App. 1974); Alba v. State, 492 1997), cert. denied, ___ U.S. ___, 118 S.Ct.
S.W.2d 555 (Tex. Crim. App. 1973). 1526 (1998). There, the Court held that the
work-product privilege attached to a
Since criminal discovery in Texas is document created by a defense expert for
generally a one-way street, courts have purposes of discussion with defense counsel.
rarely been called upon to address the issue Id. at 537-39. Because the document
of defense counsel’s work product rights. revealed the expert’s views about the
The first case to reach the Court of Criminal strengths and weaknesses of the defense
Appeals involved the prosecution’s attempt theory, the Court deemed it “highly
to obtain a copy of a tape-recorded interview privileged work product”. Id. at 538.
between a defense investigator and a Moreover, the defendant’s use of the expert
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 18
as a witness did not waive the work-product the Texas Disciplinary Rules of Professional
protection. The Court emphasized that Conduct. Pursuant to Rule 1.05, attorneys
waiver occurred only when the witness made ordinarily are proscribed from knowingly
“testimonial use” of the work product revealing “confidential information”
material. Id. at 539. “Testimonial use” is (including both privileged information and
equated with “use before the jury” and the all other information relating to a client or
Court stated that a document is “used before furnished by a client that is acquired by the
the jury”when it is either shown to a witness lawyer during the course or by reason of the
on the stand, identified by a witness, or representation of the client. Tex.
partially read aloud to the jury. Id. at 539. Disciplinary R. Prof’l Conduct 1.05. So, the
disciplinary rules require attorneys to keep
Protection against non-compelled confidential much that is not considered
disclosure of a client’s confidential privileged.
communications to his attorney comes from
C. Scope of the Privilege. Carmona v. State, 941 S.W.2d 949 (Tex.
Crim. App. 1997).
Since the work-product privilege
belongs to the attorney, it is the attorney who 1. Exceptions and Limitations.
must claim it.
All of the exceptions applicable to
The work-product exemption is attorney-client privilege also apply to the
continuing in duration and extends beyond work-product doctrine, like the crime/fraud
the conclusion of the litigation for which the exception, offensive use, and waiver.
work was done. Occidental Chem. Corp. v.
Banales, 907 S.W.2d 488, 490 (Tex. 1995). The party resisting discovery has the
Specifically, work-product exempted in a burden to prove that the communication was
prior criminal case is also protected from made or the evidence acquired or developed
disclosure in a subsequent civil matter. in anticipation of the particular lawsuit in
Wood v. McCown, 784 S.W.2d 126, 128-29 which the exemption is claimed. Republic
(Tex. App. – Austin 1990, orig. Ins. Co. v. Davis, 856 S.W.2d 158, 164-65
proceeding). (Tex. 1993).
With the new civil work-product rule, Further, in order to qualify as work-
it is yet unclear whether the continuing product in civil cases, the material, mental
nature of the privilege will be continued. It impressions, or communications must have
is highly probable that it will be at least been produced or made in anticipation of
applied to “core work product”. Tex. R. litigation or for trial. Tex. R. Civ. P.
Civ. P. 192.5(b)(1). 192.5(a). The anticipation of litigation test
is satisfied whenever:
An objection based on attorney-client
privilege does not preserve for appeal a 1. A reasonable person would have
claim based on the work-product doctrine. concluded from the totality of the
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 19
circumstances surrounding the S.W.2d 193, 203-04 (Tex. 1993). A
investigation that there was a “substantial chance” of litigation means that
substantial chance that litigation would litigation is more than “an abstract
ensue; and, possibility or unwarranted fear.” The
2. The party resisting discovery believed underlying inquiry is whether it was
in good faith that there was a reasonable for the investigating party to
substantial chance that litigation would anticipate litigation and prepare accordingly.
ensue and conducted the investigation Id. at 204.
for the purpose of preparing for such
litigation.
National Tank Co. v. Brotherton, 851
The civil procedure rules absolutely
exempt “core work product”, as discussed IV. Application to Juvenile Law
above. Other work product may be
discovered but only if the party seeking the Despite any direct law on the subject,
discovery has a substantial need for the obviously juveniles are going to be protected
materials to prepare the party’s case and that by the attorney-client and work-product
party is unable to obtain the substantial privileges. An interesting question arises
equivalent of the material by other means when contemplating who is a “client’s
without undue hardship. Tex. R. Civ. P. representative” in the juvenile context.
192.5(b)(2). The Texas Supreme Court has Consider the following points:
noted that the substantial need and hardship
exception has been rarely invoked in Texas, • A “client” is defined to include a
but one case found that both the substantial natural person. Tex. R. Evid. 503.
need and undue hardship requirements were • A client’s representative includes one
met when the parties seeking discovery who has the authority to obtain legal
attempted to discover information amassed services on behalf of the client or one
by the state from responses to civil who acts on the legal advice rendered.
investigative demands made on third parties. Tex. R. Evid. 503.
State v. Lowry, 802 S.W.2d 669, 673 (Tex.
1991). Further, the Beaumont Court of • A minor does not have the legal
Appeals, noting that the exception was capacity to employ counsel or anyone
underdeveloped in Texas, looked to federal to watch over his interests. Byrd v.
case law to support its determination that Woodruff, 891 S.W.2d 689 (Tex.
credibility issues and the failing memory of App. – Dallas 1994, writ dism’d);
a witness who had been interviewed by Coleson v. Bethan, 931 S.W.2d 706
opposing counsel satisfied the substantial (Tex. App. – Fort Worth 1996, no
need and undue hardship exception. Dillard writ); In Re D.A.S., 951 S.W.2d 528
Dep’t Stores, Inc. v. Sanderson, 928 (Tex. App. – Dallas 1997, no writ).
S.W.2d 319, 321 (Tex. App. – Beaumont
1996, orig. proceeding). • Disclosures made to third parties to
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 20
further rendition of legal services are signed by he and his attorney. Tex.
confidential communications. Tex. R. Fam. Code §51.09.
Evid. 503.
So, consider the following
• A juvenile cannot waive privileges hypothetical:
unless the waiver is in writing and
Johnny goes home one morning
after a long night out and tells his ! So, wouldn’t that conversation be
mother that he needs a lawyer. privileged?
His mother asks why he needs a
lawyer (trying to figure out what Even if Johnny had discussed the full
kind of lawyer he needs). Johnny details of the events in this scenario with
tells her that he needs a criminal Mom, I believe the privilege would still
lawyer because during the night apply. This would be especially true if there
he stole a car, ran from the police were some impediments or hardships to the
and would probably be arrested attorney interviewing the client and
pretty soon. Johnny gets arrested obtaining full information, like if Johnny
and placed in detention. So, were being housed in an out-of-county
Mom goes and hires the world’s juvenile facility.
greatest juvenile defense lawyer.
At the detention hearing, Mom Query: What happens if the crime
testifies trying to get the Judge to Johnny committed was a crime against his
release her son to come back mother so their interests conflict? Does that
home. The State asks her about change the application of the “client’s
her conversations with Johnny representative” designation and application
about the events and his actions. of the privilege? I think any such
The defense attorney objects communications which occur while the
based upon attorney-client Mother is charged with representing the
privilege. child’s best interest are privileged.
! In this scenario, isn’t Mom acting as a But, when a parent’s interests conflict
representative of Johnny in hiring the with the child’s, then the court should
attorney? appoint a guardian ad litem to represent the
child’s best interests. Then,
! Wasn’t the conversation (i.e., communications between the guardian ad
“confession”) held for the purpose of litem, the child, and the child’s lawyer
obtaining legal services and getting would be privileged. Further, since the child
legal advice? cannot waive the privilege except under very
strict circumstances, wouldn’t it be a breach
! Wasn’t Mom within the media of of fiduciary duty for the guardian ad litem
communication between the lawyer (or the attorney, for that matter) to reveal
and Johnny? confidential communications to anyone
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 21
whatsoever? Wouldn’t almost any 192.5. The criminal rule has not been
communication between the child, the developed sufficiently to address this issue,
guardian and the attorney be for the but the courts will likely be guided by the
“purpose of facilitating the rendition of civil law. So, couldn’t a parent or guardian
professional legal services to the client”? ad litem fal within the work-product
Ad Litems and attorneys, BEWARE, the privilege under some conceivable scenario?
statute of limitations on breach of fiduciary
duty suits does not run until two years As you can see, this area is, no doubt,
following the child’s eighteenth birthday! ripe for litigation. Not only is there very
Tex. Civ. Prac. & Rem. Code §§ 16.001 and little juvenile authority on who is protected
16.003!!! within the attorney-client and work-product
privileges, but there is almost no Texas law
Where does the work-product privilege on the topic. Issues regarding corporate
fit into this discussion? The civil work- clients and their representatives have been
product privilege encompasses a heavily litigated, but offer little guidance to
communication made in anticipation of situations involving natural-person clients.
litigation between or among the party and
the party’s representatives. Tex. R. Civ. P.
Oklahoma is one of the few states that Like the Wife in Jayne, juveniles have
have addressed this issue. They have persons who are legally charged with
extended the attorney-client privilege to representing their best interests. Further, it
communications made by a third party in a is sometimes necessary for the person
representative capacity for the client. Jayne representing the juvenile’s best interest to
v. Bateman, 129 P.2d 188 (Ok. 1942). have confidential communications with the
There, the Husband was found mentally juvenile and his attorney.
incompetent and his Wife was appointed
guardian. Then, a plaintiff sued Husband So, doesn’t this warrant inclusion of
and Wife, so the court appointed an attorney the parent or guardian within the protection
to represent Husband. The attorney had of the privilege?
conversations with Wife regarding the
litigation. The plaintiff called the attorney
as a witness in the case, over objection, and
questioned him about his conversations with
Husband and Wife. The Oklahoma Supreme
Court held that the conversations between
the attorney, Husband and Wife were
confidential and protected by the Husband’s
attorney-client privilege.
This case could be analogized to the
juvenile context fairly easily. First,
juveniles are similarly legally incompetent.