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ATTORNEY-CLIENT ANDWORK PRODUCT PRIVILEGES

A. MICHELLE MAYMcCurley, Kinser, McCurley, & Nelson, L.L.P.

5950 Sherry Lane, Suite 800Dallas, Texas 75225Tel: (214) 273-2400Fax: (214) 273-2470

Advanced Juvenile Law ConferenceJuvenile Law Section, State Bar of Texas

Austin, Texas

February, 2000TABLE OF CONTENTS

1. Introduction..........................................................................................................................7

2. Attorney-Client Privilege.....................................................................................................7

1. Elements of the Privilege. ........................................................................................72. Confidential Communications. ................................................................................73. Special Criminal Privilege. ......................................................................................94. Covered by Privilege................................................................................................95. Application of the Privilege. ..................................................................................106. Exceptions and Limitations....................................................................................10

1. Crime/fraud exception. ..............................................................................112. Breach of duty............................................................................................113. Joint clients ................................................................................................114. Waiver........................................................................................................115. Offensive Use.............................................................................................11

III. Work-Product Privilege .....................................................................................................12

1. Civil Work-Product Privilege. ...............................................................................122. Criminal Work-Product Privilege ..........................................................................133. Scope of the Privilege ............................................................................................144. Exceptions and Limitations....................................................................................15

IV. Application to Juvenile Law ..............................................................................................15

ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 3

TABLE OF AUTHORITIES

FEDERAL CASES

Hickman v. Taylor, 329 U. S. 495, 511, 67 S.Ct. 385 (1947)........................................................13

Modern Woodmen of Am. v. Watkins, 132 F.2d 352, 354 (5th Cir. 1942) ....................................9

United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y. 1991).....................................................10

United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160 (1975) .........................................13, 14

United States v. Tyler, 745 F.Supp. 423 (W.D.Mich. 1990) .........................................................11

STATE CASES

Alba v. State, 492 S.W.2d 555 (Tex. Crim. App. 1973)................................................................14

Ballew v. State, 640 S.W.2d 237, 239-40 (Tex. Crim. App. 1980)...............................................11

Bearden v. Boone, 693 S.W.2d 25, 27-28 (Tex. App. – Amarillo 1985, orig. proceeding) ..........11

Borden Inc. v. Valdez, 773 S.W.2d 718, 720-21 (Tex. App. – Corpus Christi 1989, orig.proceeding).....................................................................................................................................10

Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978)...............................................................14

Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982)(en banc).......................................10, 11


Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. – Dallas 1994, writ dism’d) ...............................17

Cameron Co. v. Hinojosa, 760 S.W.2d 742, 746 (Tex. App. – Corpus Christi 1988, orig.proceeding).......................................................................................................................................9

Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997).................................................. 15-16

Cathey v. State, 467 S.W.2d 472, 473-74 (Tex. Crim. App. 1971) ................................................ 9

Childress v. Tate, 148 S.W. 843, 844 (Tex. Civ. App. – Fort Worth 1912, writ ref’d)...................9

Clayton v. Canida, 233 S.W.2d 264, 266 (Tex. Civ. App. – Texarkana 1949, no writ)..................9

Cole v. Gabriel, 822 S.W.2d 296 (Tex. App. – Fort Worth 1991, orig proceeding) .....................11

Coleson v. Bethan, 931 S.W.2d 706 (Tex. App. – Fort Worth 1996, no writ) ..............................17

Dewitt and Rearick, Inc. v. Ferguson, 699 S.W.2d 692, 693 (Tex. App. – El Paso 1985, origproceeding).....................................................................................................................................11

Dillard Dep’t Stores, Inc. v. Sanderson, 928 S.W.2d 319, 321 (Tex. App. – Beaumont 1996, orig.proceeding).....................................................................................................................................16

Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 634 (Tex. App. – Amarillo1983, writ ref’d n.r.e.) ....................................................................................................................10

Enos v. Baker, 751 S.W.2d 946, 48-49 (Tex. App. – Houston [14th Dist.] 1988, orig proceeding)9

GAF Corp. v. Caldwell, 839 S.W.2d 149, 151 (Tex. App. – Houston [14th Dist.] 1992, orig


proceeding).....................................................................................................................................11

Gulf Oil Corp. v. Fuller, 695 S.W.2d 769 (Tex. App. – El Paso 1985, orig. proceeding).............10

Hoffman v. State, 514 S.W.2d 248 (Tex. Criml App. 1974) .........................................................14

Huie v. DeShazo, 922 S.W.2d 920, 921 (Tex. 1996) ......................................................................8

In Re D. Z., 869 S.W.2d 561 (Tex. App. – Corpus Christi 1993, writ denied) ............................10

In Re D.A.S., 951 S.W.2d 528 (Tex. App. – Dallas 1997, no writ) ..............................................17

Jayne v. Bateman, 129 P.2d 188 (Ok. 1942)..................................................................................18

Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App. – Eastland 1979, nowrit)

........................................................................................................................................................10

McGrede v. Rembert Nat’l. Bank, 147 S.W.2d 580, 584 (Tex. Civ. App. – Texarkana 1941, writdism’d judgm’t cor.) ........................................................................................................................9

Morton v. Smith, 44 S.W. 683, 684 (Tex. Civ. App. – 1898, no writ) ..........................................11

Mott v. State, 543 S.W.2d 623 (Tex. Criml App. 1976)................................................................14

National Sur. Corp. v. Dominguez, 715 S.W.2d 67, 69 (Tex. App. – Corpus Christi 1986, orig.proceeding).......................................................................................................................................9

National Tank Co. v. Brotherton, 851 S.W.2d 193, 203-04 (Tex. 1993) ......................................16


Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995) .......................................15

Ott v. State, 627 S.W.2d 218, 225 (Tex. App. – Fort Worth 1981, pet ref’d) .........................13, 14

Owens-Corning Fiberglas Crop. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991).........................13

Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164-65 (Tex. 1993) ................................................16

Richardson v. State, 744 S.W.2d 65, 74-76 (Tex. Crim. App. 1987), vacated on other grounds,492 U.S. 914, 109 S.Ct. 3235 (1989).............................................................................................11

Rosebud v. State, 50 Tex. Crim. 475, 98 S.W. 858 (1906) ...........................................................10

Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997), cert. denied, ___ U.S. ___, 118 S.Ct.1526 (1998)....................................................................................................................................15

State v. Lowry, 802 S.W.2d 669, 673 (Tex. 1991) ........................................................................16

Tex. Dept. of Mental Health and Mental Retardation v. Davis, 775 S.W.2d 467, 73-74 (Tex.App. – Austin 1989, orig proceeding)..............................................................................................9

Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993) ............................................15

West v. Solito, 563 S.W.2d 240 (Tex. 1978)...................................................................................8

Wilson v. State, 705 S.W.2d 719 (Tex. App. – Texarkana 1986, no pet. h.) ..........................10, 11

Wood v. McCown, 784 S.W.2d 126, 128-29 (Tex. App. – Austin 1990, orig. proceeding) .........15


STATE STATUTES

Tex. Civ. Prac. & Rem. Code §16.001 ..........................................................................................18

Tex. Civ. Prac. & Rem. Code §16.003 ..........................................................................................18

Tex. Crim. Proc. Code art. 646 (1856). ...........................................................................................8

Tex. Crim. Proc. Code art. 38.10 ...................................................................................................10

Tex. Crim. Proc. Code art 39.14 ....................................................................................................14

Tex. Disciplinary R. Prof’l Conduct 1.05 ......................................................................................15

Tex. Fam. Code §51.17............................................................................................................10, 13

Tex. Fam. Code §51.09..................................................................................................................17

Tex. R. Evid. 503 .................................................................................................8, 9, 10, 11, 16, 17

Tex. R. Civ. P. 192.5....................................................................................................13, 14, 15, 16

OTHER AUTHORITIES

Advisory Committee’s Note to Proposed Federal Rule 503................................................ 9, 10-11

1 Steven Goode, et. al., Guide to the Texas Rules of Evidence: Civil and Criminal §503.1 (2d ed.1993). ...............................................................................................................................................8

McCormick, Evidence, §87 (4th ed. 1992).......................................................................................8


ATTORNEY-CLIENT ANDWORK-PRODUCT PRIVILEGES

By A. Michelle May

1. Introduction

This article is intended to overview theapplication of the attorney-client and work-product privileges to juvenile cases. This isa relatively unlitigated area, and therefore,requires interpretation and extrapolationfrom other areas. I have also included adiscussion of my theory regarding theapplication of “a client’s representative” tothe juvenile client context.

II. Attorney-Client Privilege

The attorney-client privilege traces itsancestry back to the reign of Elizabeth I andbeyond. 1 Steven Goode, et. al., Guide tothe Texas Rules of Evidence: Civil andCriminal §503.1 (2d ed. 1993). Previously,however, the privilege was premised on aconsideration for the oath and honor of theattorney. Id. In the 18th century, thisrationale fell into disrepute, and thejustification for the privilege shifted to afocus on the need for lawyers to be fullyapprised of the facts in order to provideeffective representation. Id., citingMcCormick, Evidence, §87 (4th ed. 1992).

In Texas, the attorney-client privilegewas accorded statutory recognition early inthe state’s history. Goode, supra, §503.1,citing Tex. Crim. Proc. Code art. 646(1856). The privilege continues virtually

unchanged in Texas law today. Its purposeis the promotion of unrestrainedcommunication and contact between thelawyer and client in all matters in which theattorney’s professional advice or services aresought, without fear that these confidentialcommunications will be disclosed by theattorney, voluntarily or involuntarily, in anylegal proceeding. Huie v. DeShazo, 922S.W.2d 920, 921 (Tex. 1996); West v.Solito, 563 S.W.2d 240 (Tex. 1978).

1. Elements of the privilege.

The attorney-client privilege in Texasis defined in Rule 503(b):

A client has a privilege to refuseto disclose and to prevent anyother person from disclosingconfidential communicationsmade for the purpose offacilitating the rendition ofprofessional legal services to theclient.

Tex. R. Evid. 503(b).

2. Confidential communications.

Rule 503(a)(5) defines confidentialcommunications as follows:

A communication is “confidential” if not intended to


be disclosed to third personsother than those to whomdisclosure is made in furtheranceof the rendition of professionallegal services to the client orthose reasonably necessary forthe transmission of thecommunication.

Tex. R. Evid. 503(a)(5).

The attorney-client privilege relates tocommunications made for the purpose offacilitating the delivery of professional legaladvice and services to the client, but onlywhen the attorney-client relationship hasbeen established. However,communications made after the attorney hasdeclined employment remain unprivileged. See McGrede v. Rembert Nat’l. Bank, 147S.W.2d 580, 584 (Tex. Civ. App. –Texarkana 1941, writ dism’d judgm’tcor.). The privilege only attaches if theclient consulted the attorney for the purposeof obtaining professional legal services. Theattorney must be consulted in his capacity asan attorney. For example, if the attorney isacting as an accountant, bail bondsman,friend, or otherwise, the privilege isinapplicable. Clayton v. Canida, 233S.W.2d 264, 266 (Tex. Civ. App. –Texarkana 1949, no writ); Cathey v. State,467 S.W.2d 472, 473-74 (Tex. Crim. App.1971); Modern Woodmen of Am. v.Watkins, 132 F.2d 352, 354 (5th Cir. 1942);Childress v. Tate, 148 S.W. 843, 844 (Tex.Civ. App. – Fort Worth 1912, writ ref’d).

By focusing on intent, the rule protectsclients from eavesdroppers. When thecommunication is made, if the parties intendthat it be disclosed to third persons only

when reasonably necessary for transmittingthe communication or for the purpose offurthering the rendition of legal services, thecommunication is deemed confidential andqualifies for the privilege. However, thefailure of a client to take reasonableprecautions to ensure confidentiality maybear on intent. See National Sur. Corp. v.Dominguez, 715 S.W.2d 67, 69 (Tex. App.– Corpus Christi 1986, orig. proceeding);Tex. Dept. of Mental Health and MentalRetardation v. Davis, 775 S.W.2d 467, 73-74 (Tex. App. – Austin 1989, origproceeding). A client’s decision to divulgethe communication to other persons mayshow that the client never intended hiscommunications with counsel to beconfidential. Cameron Co. v. Hinojosa,760 S.W.2d 742, 746 (Tex. App. – CorpusChristi 1988, orig. proceeding).

But, not all communications made inthe presence of or disclosed to third partiesare left unprotected by the privilege. Disclosures made to further the rendition oflegal services to the client are deemedconfidential. Thus, third parties such asspouses, parents, business associates, orjoint clients may be included. See AdvisoryCommittee’s Note to Proposed Federal Rule503. Further, when a third person isreasonably necessary to transmitcommunications between lawyer and client(such as an interpreter), his presence doesnot destroy confidentiality. Id.


Verbal exchanges qualify ascommunications, regardless of whether thewords are spoken or written. So, documentsprepared to facilitate the attorney-clientrelationship are communications. Enos v.Baker, 751 S.W.2d 946, 48-49 (Tex. App. –Houston [14th Dist.] 1988, origproceeding). However, documents thatantedate the relationship are not covered andcannot be immunized from disclosure bymerely placing them in the attorney’s hands. Communications may be made by conduct,such as facial as expressions, as well as bywords.

There is a question regarding whetherthere is a privilege regarding the client’sidentity and fee arrangements. Normally,Texas follows the widely accepted commonlaw rule that such matters are not shieldedfrom disclosure. Borden, Inc. v. Valdez,773 S.W.2d 718, 720-21 (Tex. App. –Corpus Christi 1989, orig. proceeding);Duval County Ranch Co. v. Alamo LumberCo., 663 S.W.2d 627, 634 (Tex. App. –Amarillo 1983, writ ref’d n.r.e.). However, there are narrowly carvedexceptions to this general rule. For example,where revelation of the fee arrangementswould tend to implicate the client in thecommission of a crime or to show anadmission on his part subjecting him to civilliability, the privilege remains intact. JimWalter Homes, Inc. v. Foster, 593 S.W.2d749, 752 (Tex. Civ. App. – Eastland 1979,no writ).

3. Special criminal privilege.

In criminal cases, there is a specialprivilege that prevents the lawyer orlawyer’s representative from disclosing any

facts not necessarily confidential in nature,which came to the knowledge of the lawyeror lawyer’s representative by reason of theattorney-client relationship. Tex. R. Evid.503(b)(2). This rule was derived fromformer article 38.10 of the Code of CriminalProcedure, which was repealed and replacedby this rule.

It is likely that the courts will applythis rule to juvenile cases, despite therestrictions. First, it is formerly part ofchapter 38, which has been specificallyapplied to juvenile cases. Tex. Fam. Code§51.17(c). Second, juvenile cases are quasi-criminal in nature and are afforded the sameprotections and due process requirements asin adult criminal proceedings. In Re D. Z.,869 S.W.2d 561 (Tex. App. – CorpusChristi 1993, writ denied).

4. Covered by privilege.

The privilege covers communicationsbetween or among the client; the client’srepresentative; the lawyer; the lawyer’srepresentative; or the client, client’srepresentative, lawyer or lawyer’srepresentative representing another party in apending action and concerning a matter ofcommon interest in the pending action. Tex.R. Evid. 503(b)(1). Note, however, thatstatements between co-defendants, without alawyer present, may not be privileged. Compare United States v. Gotti, 771F.Supp. 535, 545 (E.D.N.Y. 1991), withGulf Oil Corp. v. Fuller, 695 S.W.2d 769(Tex. App. – El Paso 1985, orig.proceeding).


A “client” is a natural person who, orany kind of entity which, is renderedprofessional legal services by a lawyer, orwho consults a lawyer with a view toobtaining legal services from him. Tex. R.Evid. 503(a)(1). A representative of theclient is one having authority to obtainprofessional legal services, or to act onadvice rendered pursuant thereto, on behalfof a client. Id. It has been held, generally,that the privilege extends only to theattorney and persons who are the media ofcommunication between him and the client. Burnett v. State, 642 S.W.2d 765 (Tex.Crim. App. 1982)(en banc); Wilson v.State, 705 S.W.2d 719 (Tex. App. –Texarkana 1986, no pet. h.). Since at least1885, the privilege has been held to includefriends or witnesses acting with the attorneyand the individual client for the provision ofthe legal services. Rosebud v. State, 50Tex. Crim. 475, 98 S.W. 858 (1906).

A lawyer is a person authorized, orreasonably believed by the client to beauthorized, to engage in the practice of lawin any state or nation. Id. The lawyer neednot be a member of the bar of thejurisdiction in which his counsel is sought. See Advisory Committee’s Note to ProposedFederal Rule 503. Further, sometimes thelawyer need not be a lawyer – confidentialcommunications by a client to a person hereasonably believes to be a lawyer fallwithin the privilege. See, e.g., United Statesv. Tyler, 745 F.Supp. 423 (W.D.Mich.1990); But see, Richardson v. State, 744S.W.2d 65, 74-76 (Tex. Crim. App. 1987),vacated on other grounds, 492 U.S. 914,109 S.Ct. 3235 (1989).

A representative of the lawyer is

someone employed by the lawyer to assist inthe rendition of legal services. Tex. R. Evid.503(a)(4). So, communications made tooffice personnel such as law clerks andsecretaries fall within the privilege’s scope. See Wilson at 720; But see, Morton v.Smith, 44 S.W. 683, 684 (Tex. Civ. App. –1898, no writ). In addition, it has becomegenerally accepted that the scope of theattorney-client privilege encompasses agentswhose services are required by the attorneyin order to properly prepare his client’s case. Ballew v. State, 640 S.W.2d 237, 239-40(Tex. Crim. App. 1980). This applies toconsulting expert witnesses only. Where apsychiatrist is retained to examine a clientand advise the lawyer concerning the client’smental state, communications made to andby the expert are privileged. Burnett at 769;Ballew at 239-40. When an expert is hiredwith the expectation that he will testify attrial, there is no intention that thecommunications will remain confidential.

5. Application of the privilege.

The attorney-client privilege belongsto the client and lasts, unless waived, as longas the client desires. It is not affected by theresolution of the particular controversy ortermination of the attorney-clientrelationship. Bearden v. Boone, 693S.W.2d 25, 27-28 (Tex. App. – Amarillo1985, orig. proceeding).

Although the primary matter protectedby the privilege is a communication from theclient to the lawyer, the statements andadvice of the attorney are privileged as well. Dewitt and Rearick, Inc. v. Ferguson, 699S.W.2d 692, 693 (Tex. App. – El Paso1985, orig proceeding). The privilege


attaches not just to the legal advice, but alsoto the complete communication between theclient and the attorney, includingcommunications containing factual

information. GAF Corp. v. Caldwell, 839S.W.2d 149, 151 (Tex. App. – Houston[14th Dist.] 1992, orig proceeding).

The privilege may be claimed by theclient or client’s representative; the client’sguardian or conservator; the personalrepresentative of a deceased client; or thesuccessor, trustee, or similar representativeof a client that is a corporation, association,or other organization, whether or not inexistence. Tex. R. Evid. 503(c). Theclient’s lawyer or lawyer’s representative atthe time of the communication may alsoclaim the privilege but only on behalf of theclient. Id. So, the attorney has no standingto claim the privilege in his or her ownbehalf. Cole v. Gabriel, 822 S.W.2d 296(Tex. App. – Fort Worth 1991, origproceeding).

F. Exceptions and Limitations

The attorney-client privilege contains anumber of specific exceptions. Theseexceptions also apply to the work-productdoctrine.

1. Crime/fraud exception

There is no privilege if the services ofcounsel were sought or obtained to enable oraid anyone to commit or plan to commitwhat the client knew or reasonably shouldhave known to be a crime or fraud. Thecrime-fraud exception applies only when aprima facie case is made of contemplatedfraud. The fact that the cause of actioninvolves fraudulent conduct is insufficient. The attorney-client privilege is lost onlywhen the legal communications or services

were obtained in order to commit or plan tocommit a fraud.

2. Breach of Duty

No privilege extends to acommunication relevant to an issue ofbreach of duty by a lawyer to the client or bythe client to the lawyer.

3. Joint Clients

Communications involving jointclients may not be privileged. When acommunication is relevant to a matter ofcommon interest between or among two ormore clients, and the communication wasmade by any of them to a lawyer retained orconsulted in common, there is no privilegewhen the communication is offered in anaction between or among any of the clients.

4. Waiver

The attorney-client privilege may bewaived by the client. Thus, the client mayconsent to the giving of testimony by hisattorney in respect to privilegedcommunications. On the other hand, theattorney may not ordinarily discloseprivileged communications over the client’sobjection.

The privilege is waived when the clientvoluntarily testifies to the communication orpermits another person to do so withoutobjection.


The privilege must be raised withspecificity or it is waived.

Disclosure of attorney-client privilegedinformation to third persons waives theprivilege. By definition, thecommunications are intended to be keptconfidential between the attorney and client. Therefore, disclosing the communication toa third party is an absolute waiver. (But, see

the discussion below regarding what thirdparties may be included within theprivilege.) However, the work-productprivilege is intended to prevent the opposingparty to the litigation from obtaining theinformation; therefore, disclosure of work-product to third persons who do not discloseit to the opposing party does not necessarilywaive the work-product privilege.

1. Offensive Use

A party seeking affirmative relief maynot use a privilege to prevent an opposingparty from discovering outcomedeterminative information regarding thenature of the claim. An offensive use of aprivilege may be found even if the privilegeis asserted as a “defense to a defense” by aparty seeking affirmative relief. Theelements of the offensive use waiver are asfollows:

1. The party asserting the privilege isseeking affirmative relief.

2. The privileged information soughtmust be such that, if believed by thefact finder, in all probabilty it would be“outcome determinative” of the causeof action asserted. Mere relevance isinusfficient, a contradiction in positionwithout more is insufficient, and theconfidential communication must go tothe very heart of the affirmative reliefsought.

3. Disclosure of the confidentialcommunication is the only means bywhich the aggrieved party may obtainthe evidence.

III. Work-Product Privilege

The work-product privilege is derivedfrom the landmark United States SupremeCourt opinion of Hickman v. Taylor:

Proper presentation of a client’scase demands that [the attorney]assemble information, sift whathe considers to be the relevantfrom the irrelevant facts, preparehis legal theories and plan hisstrategy without undue andneedless interference. . . . Thiswork is reflected, of course, ininterviews, statements,memoranda, correspondence,briefs, mental impressions,personal beliefs, and countlessother intangible ways – aptlythough roughly termed ‘workproduct of the lawyer’.

Hickman v. Taylor, 329 U. S. 495, 511, 67S.Ct. 385 (1947).

Thus the work-product doctrine, unlikethe attorney-client privilege is not concernedwith the protection of client confidences. Rather, its purpose is to shelter the mentalprocesses of the attorney by providing aprivileged area within which the lawyer cananalyze and prepare the case. United States


v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160(1975); See also Owens-Corning FiberglasCrop. v. Caldwell, 818 S.W.2d 749, 750

(Tex. 1991).

It is unclear whether the Texas civil orcriminal work product privilege applies tojuvenile cases. The civil privilege is foundin the civil discovery rules. Tex. R. Civ. P.192.5. As the civil discovery procedureshave been held inapplicable to juvenileproceedings, the civil work product privilegemay not apply either. Tex. Fam. Code§51.17. The criminal work productprivilege is contained in relativelyundeveloped case law. See Nobles at 238, 2170; Ott v. State, 627 S.W.2d 218, 225(Tex. App. – Fort Worth 1981, pet ref’d). The law is undeveloped due to the fact thatdiscovery in adult criminal proceedings isone-sided, so the opportunity to litigate thework product privilege does not arise veryoften. Since it is a yet unresolved point ofjuvenile law, both civil and criminalprivileges will be discussed.

A. Civil Work-Product Privilege.

The attorney work-product privilegeexemption was added to the Texas civildiscovery rules in 1973. The 1999amendments to the Texas Rules of CivilProcedure made a wholesale revision to thisprivilege. The new rule defines the scope ofthe privilege and expressly absorbs thetraditional party communication privilegeinto the work product privilege. Significantly, the formerly separateprivileged status for witness statementsprepared or taken in anticipation of litigationhas been expressly eliminated and witnessstatements are not work product, even ifmade in anticipation of litigation.

Texas Rule of Civil Procedure 192.5provides that work product is notdiscoverable. “Work product” is nowdefined as material prepared or mentalimpressions developed in anticipation oflitigation or for trial by or for a party or aparty’s representatives. Work product alsoencompasses a communication made inanticipation of litigation or for trial betweena party and the party’s representatives oramong a party’s representatives.

The new discovery rules divide work-product into two categories. First, “corework-product” is defined as the workproduct of an attorney or an attorney’srepresentative that contains the attorney’s orthe attorney’s representative’s mentalimpressions, opinions, conclusions, or legaltheories. Core work product is NEVERdiscoverable.

Other materials, mental impressions,and communications that fall within thedefinition of work product but do not qualifyas core work-product are discoverable onlyupon a showing that the party seekingdiscovery has a substantial need for thematerial in the preparation of the party’scase, and that the party is unable to obtainthe substantial equivalent of the material byother means without undue hardship.

B. Criminal Work-ProductPrivilege.

The work-product doctrine is equallyapplicable to both criminal and civillitigation. As the United States SupremeCourt stated in Nobles:


Although the work-productdoctrine most frequently isasserted as a bar to discover incivil litigation, its role in assuringthe proper functioning of thecriminal justice system is evenmore vital. The interests ofsociety and the accused inobtaining a fair and accurateresolution of the question of guilt

or innocence demand thatadequate safeguards assure thethorough preparation andpresentation of each side of thecase.

Nobles at 238, 2170. The work productprivilege was incorporated in Texascommon law for criminal cases in 1982. Ottat 224.

Almost all of the Texas criminal casesdiscussing work product relates to theprosecutor’s right to resist discovery. Tex.Crim. Proc. Code §39.14. That provisionpermits the defendant, upon showing ofgood cause, to obtain copies of several typesof materials from the prosecution, except thewritten statements of witnesses and the workproduct of counsel and their investigators. Id.. The Court of Criminal Appeals hadinterpreted this work-product exemption toreach offense or invetigative reportsprepared by the police, internal files orpapers of the prosecution, statementsprepared after interviews of prospectivewitnesses, and reports regarding chemicalanalyses. Brem v. State, 571 S.W.2d 314(Tex. Crim. App. 1978); Mott v. State, 543S.W.2d 623 (Tex. Criml App. 1976);Hoffman v. State, 514 S.W.2d 248 (Tex.Criml App. 1974); Alba v. State, 492S.W.2d 555 (Tex. Crim. App. 1973).

Since criminal discovery in Texas isgenerally a one-way street, courts haverarely been called upon to address the issueof defense counsel’s work product rights. The first case to reach the Court of CriminalAppeals involved the prosecution’s attemptto obtain a copy of a tape-recorded interviewbetween a defense investigator and a

prosecution witness. Washington v. State,856 S.W.2d 184, 187 (Tex. Crim. App.1993). After the defense cross-examined thewitness concerning some statements hemade during the interview, the trial courtordered the production of the tape andallowed the prosecution to play it for thejury. The Court of Criminal Appealsreversed, holding that the tape recording waswork product because the interview wasconducted to prepare the defense case fortrial. Id. at 189. The Court noted that theinterview was aimed at gatheringinformation for impeachment purposes andaiding the defense in evaluating the state’scase. Id. at 188.

The Court reaffirmed this approach towork product in Skinner v. State. Skinner v.State, 956 S.W.2d 532 (Tex. Crim. App.1997), cert. denied, ___ U.S. ___, 118 S.Ct.1526 (1998). There, the Court held that thework-product privilege attached to adocument created by a defense expert forpurposes of discussion with defense counsel. Id. at 537-39. Because the documentrevealed the expert’s views about thestrengths and weaknesses of the defensetheory, the Court deemed it “highlyprivileged work product”. Id. at 538. Moreover, the defendant’s use of the expert


as a witness did not waive the work-productprotection. The Court emphasized thatwaiver occurred only when the witness made“testimonial use” of the work productmaterial. Id. at 539. “Testimonial use” isequated with “use before the jury” and theCourt stated that a document is “used beforethe jury”when it is either shown to a witnesson the stand, identified by a witness, orpartially read aloud to the jury. Id. at 539.

Protection against non-compelleddisclosure of a client’s confidentialcommunications to his attorney comes from

the Texas Disciplinary Rules of ProfessionalConduct. Pursuant to Rule 1.05, attorneysordinarily are proscribed from knowinglyrevealing “confidential information”(including both privileged information andall other information relating to a client orfurnished by a client that is acquired by thelawyer during the course or by reason of therepresentation of the client. Tex.Disciplinary R. Prof’l Conduct 1.05. So, thedisciplinary rules require attorneys to keepconfidential much that is not consideredprivileged.

C. Scope of the Privilege.

Since the work-product privilegebelongs to the attorney, it is the attorney whomust claim it.

The work-product exemption iscontinuing in duration and extends beyondthe conclusion of the litigation for which thework was done. Occidental Chem. Corp. v.Banales, 907 S.W.2d 488, 490 (Tex. 1995). Specifically, work-product exempted in aprior criminal case is also protected fromdisclosure in a subsequent civil matter. Wood v. McCown, 784 S.W.2d 126, 128-29(Tex. App. – Austin 1990, orig.proceeding).

With the new civil work-product rule,it is yet unclear whether the continuingnature of the privilege will be continued. Itis highly probable that it will be at leastapplied to “core work product”. Tex. R.Civ. P. 192.5(b)(1).

An objection based on attorney-clientprivilege does not preserve for appeal aclaim based on the work-product doctrine.

Carmona v. State, 941 S.W.2d 949 (Tex.Crim. App. 1997).

1. Exceptions and Limitations.

All of the exceptions applicable toattorney-client privilege also apply to thework-product doctrine, like the crime/fraudexception, offensive use, and waiver.

The party resisting discovery has theburden to prove that the communication wasmade or the evidence acquired or developedin anticipation of the particular lawsuit inwhich the exemption is claimed. RepublicIns. Co. v. Davis, 856 S.W.2d 158, 164-65(Tex. 1993).

Further, in order to qualify as work-product in civil cases, the material, mentalimpressions, or communications must havebeen produced or made in anticipation oflitigation or for trial. Tex. R. Civ. P.192.5(a). The anticipation of litigation testis satisfied whenever:

1. A reasonable person would haveconcluded from the totality of the


circumstances surrounding theinvestigation that there was asubstantial chance that litigation wouldensue; and,

2. The party resisting discovery believedin good faith that there was asubstantial chance that litigation wouldensue and conducted the investigationfor the purpose of preparing for suchlitigation.

National Tank Co. v. Brotherton, 851

S.W.2d 193, 203-04 (Tex. 1993). A“substantial chance” of litigation means thatlitigation is more than “an abstractpossibility or unwarranted fear.” Theunderlying inquiry is whether it wasreasonable for the investigating party toanticipate litigation and prepare accordingly. Id. at 204.

The civil procedure rules absolutelyexempt “core work product”, as discussedabove. Other work product may bediscovered but only if the party seeking thediscovery has a substantial need for thematerials to prepare the party’s case and thatparty is unable to obtain the substantialequivalent of the material by other meanswithout undue hardship. Tex. R. Civ. P.192.5(b)(2). The Texas Supreme Court hasnoted that the substantial need and hardshipexception has been rarely invoked in Texas,but one case found that both the substantialneed and undue hardship requirements weremet when the parties seeking discoveryattempted to discover information amassedby the state from responses to civilinvestigative demands made on third parties. State v. Lowry, 802 S.W.2d 669, 673 (Tex.1991). Further, the Beaumont Court ofAppeals, noting that the exception wasunderdeveloped in Texas, looked to federalcase law to support its determination thatcredibility issues and the failing memory ofa witness who had been interviewed byopposing counsel satisfied the substantialneed and undue hardship exception. DillardDep’t Stores, Inc. v. Sanderson, 928S.W.2d 319, 321 (Tex. App. – Beaumont1996, orig. proceeding).

IV. Application to Juvenile Law

Despite any direct law on the subject,obviously juveniles are going to be protectedby the attorney-client and work-productprivileges. An interesting question ariseswhen contemplating who is a “client’srepresentative” in the juvenile context. Consider the following points:

• A “client” is defined to include anatural person. Tex. R. Evid. 503.

• A client’s representative includes onewho has the authority to obtain legalservices on behalf of the client or onewho acts on the legal advice rendered. Tex. R. Evid. 503.

• A minor does not have the legalcapacity to employ counsel or anyoneto watch over his interests. Byrd v.Woodruff, 891 S.W.2d 689 (Tex.App. – Dallas 1994, writ dism’d);Coleson v. Bethan, 931 S.W.2d 706(Tex. App. – Fort Worth 1996, nowrit); In Re D.A.S., 951 S.W.2d 528(Tex. App. – Dallas 1997, no writ).

• Disclosures made to third parties to


further rendition of legal services areconfidential communications. Tex. R.Evid. 503.

• A juvenile cannot waive privilegesunless the waiver is in writing and

signed by he and his attorney. Tex.Fam. Code §51.09.

So, consider the followinghypothetical:

Johnny goes home one morningafter a long night out and tells hismother that he needs a lawyer. His mother asks why he needs alawyer (trying to figure out whatkind of lawyer he needs). Johnnytells her that he needs a criminallawyer because during the nighthe stole a car, ran from the policeand would probably be arrestedpretty soon. Johnny gets arrestedand placed in detention. So,Mom goes and hires the world’sgreatest juvenile defense lawyer. At the detention hearing, Momtestifies trying to get the Judge torelease her son to come backhome. The State asks her abouther conversations with Johnnyabout the events and his actions. The defense attorney objectsbased upon attorney-clientprivilege.

! In this scenario, isn’t Mom acting as arepresentative of Johnny in hiring theattorney?

! Wasn’t the conversation (i.e.,“confession”) held for the purpose ofobtaining legal services and gettinglegal advice?

! Wasn’t Mom within the media ofcommunication between the lawyerand Johnny?

! So, wouldn’t that conversation beprivileged?

Even if Johnny had discussed the fulldetails of the events in this scenario withMom, I believe the privilege would stillapply. This would be especially true if therewere some impediments or hardships to theattorney interviewing the client andobtaining full information, like if Johnnywere being housed in an out-of-countyjuvenile facility.

Query: What happens if the crimeJohnny committed was a crime against hismother so their interests conflict? Does thatchange the application of the “client’srepresentative” designation and applicationof the privilege? I think any suchcommunications which occur while theMother is charged with representing thechild’s best interest are privileged.

But, when a parent’s interests conflictwith the child’s, then the court shouldappoint a guardian ad litem to represent thechild’s best interests. Then,communications between the guardian adlitem, the child, and the child’s lawyerwould be privileged. Further, since the childcannot waive the privilege except under verystrict circumstances, wouldn’t it be a breachof fiduciary duty for the guardian ad litem(or the attorney, for that matter) to revealconfidential communications to anyone


whatsoever? Wouldn’t almost anycommunication between the child, theguardian and the attorney be for the“purpose of facilitating the rendition ofprofessional legal services to the client”? Ad Litems and attorneys, BEWARE, thestatute of limitations on breach of fiduciaryduty suits does not run until two yearsfollowing the child’s eighteenth birthday! Tex. Civ. Prac. & Rem. Code §§ 16.001 and16.003!!!

Where does the work-product privilegefit into this discussion? The civil work-product privilege encompasses acommunication made in anticipation oflitigation between or among the party andthe party’s representatives. Tex. R. Civ. P.

192.5. The criminal rule has not beendeveloped sufficiently to address this issue,but the courts will likely be guided by thecivil law. So, couldn’t a parent or guardianad litem fal within the work-productprivilege under some conceivable scenario?

As you can see, this area is, no doubt,ripe for litigation. Not only is there verylittle juvenile authority on who is protectedwithin the attorney-client and work-productprivileges, but there is almost no Texas lawon the topic. Issues regarding corporateclients and their representatives have beenheavily litigated, but offer little guidance tosituations involving natural-person clients.

Oklahoma is one of the few states thathave addressed this issue. They haveextended the attorney-client privilege tocommunications made by a third party in arepresentative capacity for the client. Jaynev. Bateman, 129 P.2d 188 (Ok. 1942). There, the Husband was found mentallyincompetent and his Wife was appointedguardian. Then, a plaintiff sued Husbandand Wife, so the court appointed an attorneyto represent Husband. The attorney hadconversations with Wife regarding thelitigation. The plaintiff called the attorneyas a witness in the case, over objection, andquestioned him about his conversations withHusband and Wife. The Oklahoma SupremeCourt held that the conversations betweenthe attorney, Husband and Wife wereconfidential and protected by the Husband’sattorney-client privilege.

This case could be analogized to thejuvenile context fairly easily. First,juveniles are similarly legally incompetent.

Like the Wife in Jayne, juveniles havepersons who are legally charged withrepresenting their best interests. Further, itis sometimes necessary for the personrepresenting the juvenile’s best interest tohave confidential communications with thejuvenile and his attorney.

So, doesn’t this warrant inclusion ofthe parent or guardian within the protectionof the privilege?

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