The attorney client privilege prevents an attorney from revealing confidential communications and other facts they have learned by reason of the attorney-client relationship.
For criminal cases in Texas, the attorney client privilege is controlled by Texas Rule of Evidence 503(b)(2) which is called the “special rule of privilege in criminal cases.” That rule states, “in criminal cases, a client has a privilege to prevent the lawyer or 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.”
A confidential communication is defined by the rules as a communication “… not intended to be disclosed to third persons…” I put the words in bold above to highlight the fact that the criminal privilege is even broader than the privilege in civil cases. This means that the lawyer cannot reveal any communication not intended to be disclosed to third persons nor any other fact which came to the knowledge of the lawyer by reason of the attorney client relationship.
Here’s what this means in English for Texas criminal cases: virtually everything your lawyer knows about the case (assuming he learned it from you or by investigating your case) is privileged. The lawyer cannot be compelled by law enforcement or even a judge to disclose confidential information. If you take the Texas rule to it’s logical extreme — even the mere fact that you visited with an attorney could be considered privileged information! This goes for situations where you’re actually charged with a crime or even just the subject of an investigation.
The attorney-client privilege is an extremely important and powerful privilege for the reason that without it — an individual may never confide in their attorney critical information needed for their defense. People charged with crimes can and do still feel tepid at times revealing information to their attorney. Whether that be for lack of trust or for mere embarrassment — the law does everything possible to facilitate communication between you and your attorney.
As with practically everything in the law — there are exceptions. An attorney may not aid the furtherance of a crime or a fraud and communications regarding the same are not privileged. Also an attorney has an affirmative duty to report the abuse or neglect of a child or to report a situation where someone may be in immanent danger. As a general rule, if the facts or disclosure is about something that has happened in the past in a criminal case — then it will almost always be privileged.
The attorney – client privilege is at the cornerstone of the lawyer – client relationship and is one of the fundamentals of our criminal justice system.
Jeremy F. Rosenthal, Esq.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about your case you should directly consult an attorney.