In legal situations involving domestic violence, all parties must respect confidentiality. Before you even begin to prepare your case, you should become familiar with the Attorney-Client Privilege to understand what can and cannot be discussed with anyone, including family. In the state of Texas, a seasoned attorney can guide you through this process.
What is Attorney-Client Privilege in Texas?
The attorney-client privilege is the law that protects communications between attorneys and their clients and keeps all conversations confidential. An attorney must have complete knowledge of all the facts, including those that may be “bad” or damaging, to advise a client correctly. This privilege encourages open and honest communication between both parties.
Attorneys cannot reveal any discussions they have with their clients nor can they be forced to. Confidentiality is essential in the litigation process. Whether oral or written, privileged communications must not be disclosed to the opposing party. By its nature, the Attorney-Client Privilege gives the right to have communications protected from being disclosed to any third party, including governmental agencies, criminal justice authorities, and family.
What Qualifies as “Privileged Communication”?
Privileged communication refers to that which is made in confidence by the client involving information that is sensitive to a legal case. Any form of communication where legal advice is sought is considered privileged.
The privilege can be waived, and its protections lost if the client chooses to do so. It can also be lost if the client does not follow applicable rules and carelessly or unintentionally discloses information. To retain the Attorney-Client Privilege, the client must understand the boundaries.
The boundaries are defined by:
- What is a privileged communication
- Who is protected by this privilege
- How inadvertent disclosure loses the privilege
- Special guidelines for asserting the privilege with General Counsel
It should be noted that in Texas, not all communication with the Office of General Counsel is protected by the Attorney-Client Privilege.
What Constitutes the Attorney-Client Relationship?
The Attorney-Client Privilege cannot exist until an attorney-client relationship has been established. In other words, both parties have agreed upon representation of the client, and some type of acknowledgment has been demonstrated. This could be in the form of an engagement letter, a fee contract, or an oral agreement pertaining to the scope of the representation. The appearance of an attorney acting on behalf of a client, including filing proceedings in court, drafting documents, or appearing in court as a representative, may be expressly acknowledged as a formal attorney-client relationship.
It is not always clear when an attorney-client relationship exists. Sometimes clients will assume a relationship has been established and mistakenly rely on the protection of the privilege. The privilege does not take hold until the attorney, and the client have formally agreed upon representation.
An implied relationship may be evidenced by, but not limited to:
- The circumstances of a conversation
- The payment of fees to an attorney
- The degree of sophistication of the would-be client
- The request for and receipt of legal advice
- A history of legal representation between the alleged client and the legal practitioner
An express contract is not necessary if the conduct of the parties implies a relationship.
How to Preserve the Attorney-Client Privilege
There are a few rules that can be followed to help protect the Attorney-Client Privilege.
Written Communications
The attorney reviewing documents must be able to recognize them as being privileged. Therefore, all privileged communications should be labeled as “Confidential” and “Attorney-Client Privileged.”
The number of recipients of privileged information should be limited. Exclude people who are not necessary to the discussion and remember that that includes family members. Start a new email chain where applicable.
Meetings and Conference Calls
Communication that occurs for the purpose of providing legal advice should be confidential and privileged. Exclude from privileged discussions any observer or third party whose presence may prevent a claim to privilege. Even family members should not be included in privileged conversations.
According to the Texas Center for Legal Ethics, the attorney may reveal confidential communication only in extreme cases such as the client being in danger of committing a criminal act or suffering self-inflicted bodily harm.
Get Help
If you or a family member has been arrested and is facing a felony or misdemeanor charge, you need the help of a DWI/Criminal Defense attorney with a successful track record. In Austin, Texas, the legal team at Stephen Bowling is always discreet and will honor the Attorney-Client Privilege–even when it comes to family. Call 512-601-8272 for a free consultation today.
We focus on getting you the results you need.
