Privileged Attorney Client Communication Law In Texas
By virtue of the attorney-client privilege, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services. TEX.R.CRIM.EVID. 503(b); Austin v. State, 934 S.W.2d 672, 674 (Tex.Crim.App. 1996).
A communication is "confidential" if not intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary to the transmission of the communication. TEX.R.CRIM.EVID. 503(a)(5).
Further, in criminal cases, a client has a privilege to prevent the lawyer or the lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. TEX.R.CRIM.EVID. 503(b).
Underlying this privilege is an attorney's need to "know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." Strong v. State, 773 S.W.2d 543, 547 (Tex.Crim.App. 1989), quoting Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1980).
Thus, the aspirational purpose of the privilege is the promotion of communication between attorney and client unrestrained by fear that these confidences may later be revealed. Strong, 773 S.W.2d at 547.
Despite its salutary aim, the privilege has not been without criticism. As noted in Strong, critics of the privilege maintain that it impedes the full and free discovery of the truth. Id.
At least to some extent, the exceptions to the privilege found in Rule 503(d) reflect the balance struck between the interests promoted by the privilege and the truth-seeking interests of the administration of justice. See TEX.R.CRIM.EVID. 503(d).
The power to waive the attorney-client privilege belongs to the client, or his attorney or agent both acting with the client's authority. Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App. 1997); TEX.R.CRIM.EVID. 503(c).
The client bears the burden of establishing the existence of the privilege. Austin, 934 S.W.2d at 674.
However, the party seeking to benefit by a finding of waiver of the privilege has the burden of going forward with evidence that supports a finding of waiver. Carmona, 941 S.W.2d at 953.
We examine the totality of the circumstances and reasonable inferences therefrom in determining whether the privilege has been waived. Carmona, 941 S.W.2d at 954.