Defending People

the art and science of criminal defense trial lawyering

Proposed Change to Rule of Privilege in Texas Criminal Cases

I wrote last year about the interplay of Texas Disciplinary Rule of Professional Conduct 1.05 and Texas Rule of Evidence 503, and their surprising cumulative effect on the attorney-client and work-product privileges in Texas. Now the Court of Criminal Appeals proposes amending Rule 503 to remove the “special rule of privilege in criminal cases”:

(2) Special rule of privilege in criminal cases. 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.

(PDF of proposed rule change.)

The effect of the rule change will be to bring privilege in Texas criminal cases in line with privilege in civil cases and, coincidentally, with what most Texas criminal lawyers thought the rule was. Now, things that the lawyer learns by reason of the attorney-client relationship will be treated as “unprivileged client information” rather than “privileged information.”

In Texas before the rule change, there was no such thing as “unprivileged client information” in criminal cases. Because the rules of evidence made everything privileged, the lawyer could not reveal anything without the client’s consent (even if revelation was in the client’s best interest).

Unprivileged client information is confidential, and cannot be freely disclosed by the lawyer, but it may be revealed, according to Rule 1.05, in more situations than privileged information can. For example, “when the lawyer has reason to believe it is necessary to do so in order to carry out the representation effectively” she can reveal unprivileged confidential client information, but not privileged client confidences.

Why the change? I’ve no idea.

Tags:


This entry was posted by Mark Bennett on Monday, March 10th, 2008 at 12:17 pm and is filed under ethics, privilege. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

About The Author

Mark Bennett
Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.

Comments

One Response to “Proposed Change to Rule of Privilege in Texas Criminal Cases”

  1. Ron in Houston says:
    11 March 2008 at 1:39 pm

    I’ve gotten so damn cynical that a big part of me sees some nefarious plot to circumvent the attorney-client relationship.

    Maybe I’m wrong, but you’re right – why change the rule?

    Reply

Leave a Reply

By submitting a comment here you give me permission to use your words in any way I like, including editing them for clarity, brevity, or content, as well as rearranging the words or the letters within them to change their very meaning. Those who engage in anonymous ad hominem attacks are the car-keyers of the internet, and will not be tolerated. If you engage in such attacks, I may edit the post to show your name or to make it appear that you are attacking yourself. Or both. I don't have to let you comment here. Don't do so for blatant marketing purposes; do so only to add to the discussion. Once you click "submit comment" you have given up all interest in your words to me, and have no further interest in your words. You agree never to sue, grieve, or complain to anyone about the use that I make of the letters you have typed. If you even threaten to do so, you agree that you will be held up to eternal public ridicule.

« Blog or Government Propaganda Tool?     The Wire »