Edgett Law Firm | December 9, 2021 | Criminal Defense
All lawyers and their clients are governed by two main types of privilege: the ethical duty of confidentiality imposed on lawyers and the rules of evidence that protect privileged communications and facts.
If you are charged with a crime, you should stop all case communications with anyone besides your lawyer. Do not talk to your friends about the allegations; do not talk to your mother; do not talk to witnesses, and do not talk to police.
Anything you say to anyone besides your lawyer is not confidential and can be used against you in court.
Attorney Client Privilege as a Rule of Evidence in Texas
One of the cornerstones of attorney-client privilege is the Texas Rules of Evidence, Rule 503. By state law, communications made between lawyer and client in furtherance of the legal representation are privileged and not admissible in court.
This definition of privileged communications has a key component. This key component is “in furtherance of the legal representation.” This means that only discussions relating to the attorney-client relationship are privileged.
In state and federal criminal cases, the privilege is expanded to also include any facts the criminal defense lawyer learns through the representation. This rule of privilege also protects a criminal defense attorney’s staff in Texas. For example, a paralegal, personal assistant, and others working for the lawyer also have the privilege.
Under the law, the privilege belongs to the client. This means that only the client can waive the privilege. Waiving the privilege will permit the disclosure of confidential information. However, there are certain limited exceptions to disclosing confidential information.
The exceptions to attorney client privilege are when the lawyer is permitted or required by law to disclose confidential information. One example of an exception to the privilege is if the client tries to get the lawyer’s help to commit a crime. Another exception is if the client accuses the lawyer of malpractice or violating a duty to the client. In both of these exceptions, information about what happened is admissible in court.
The Ethical Duty to Maintain Client Confidentiality
The attorney-client privilege rule of evidence is different than the ethical duty of confidentiality under the Texas Rules of Professional Conduct, Rule 1.05. Lawyers are bound and governed by both rules.
The evidentiary rule discussed above says that privileged communications and information cannot be used as evidence in court. The evidentiary rule provides no other protection to clients. That’s where the ethical duty of confidentiality comes in.
The ethical duty of confidentiality protects clients through other means. A lawyer is ethically required to maintain client confidentiality, with a few narrow exceptions. If they don’t, they could be sanctioned by the State Bar of Texas or even have their law license suspended or revoked.
Good lawyers take attorney-client confidentiality extraordinarily seriously. A good lawyer considers protecting client confidentiality their most important duty. Similar to the attorney-client privilege under the rules of evidence, only the client can waive attorney client privilege and permit disclosure of confidential information.
There are some exceptions to confidentiality, where a lawyer can — or is even required to — disclose confidential information. Some examples include:
- Preventing commission of a crime or fraud
- Defending oneself from malpractice claims
- To prevent the client dying from suicide
- To prevent the client from hurting or killing someone
These circumstances are very narrow and do not come up very often. By and large, confidential information is protected from disclosure by the Texas Rules of Professional Conduct.
It is important to remember that only communications between you and your lawyer are protected by the evidentiary privilege and the ethical duty of attorney-client confidentiality.
Never discuss an incident with anyone besides your criminal defense attorney. Text messages with friends can be used as evidence against you in court, and people you talk to can be subpoenaed as witnesses.