ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES

Transcription

1 ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES A. MICHELLE MAY McCurley, Kinser, McCurley, & Nelson, L.L.P Sherry Lane, Suite 800 Dallas, Texas Tel: (214) Fax: (214) Advanced Juvenile Law Conference Juvenile Law Section, State Bar of Texas Austin, Texas

2 February, 2000 TABLE OF CONTENTS 1. Introduction Attorney-Client Privilege Elements of the Privilege Confidential Communications Special Criminal Privilege Covered by Privilege Application of the Privilege Exceptions and Limitations Crime/fraud exception Breach of duty Joint clients Waiver Offensive Use...11 III. Work-Product Privilege Civil Work-Product Privilege Criminal Work-Product Privilege Scope of the Privilege Exceptions and Limitations...15 IV. Application to Juvenile Law...15

3 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 (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, (Tex. Crim. App. 1980)...11 Bearden v. Boone, 693 S.W.2d 25, (Tex. App. Amarillo 1985, orig. proceeding)...11 Borden Inc. v. Valdez, 773 S.W.2d 718, (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

4 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 4 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) Cathey v. State, 467 S.W.2d 472, (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, orig proceeding)...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. Amarillo 1983, writ ref d n.r.e.)...10 Enos v. Baker, 751 S.W.2d 946, (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

5 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 5 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, no writ)...10 McGrede v. Rembert Nat l. Bank, 147 S.W.2d 580, 584 (Tex. Civ. App. Texarkana 1941, writ dism 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, (Tex. 1993)...16

6 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 6 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, (Tex. 1993)...16 Richardson v. State, 744 S.W.2d 65, (Tex. Crim. App. 1987), vacated on other grounds, 492 U.S. 914, 109 S.Ct (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 (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, (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, (Tex. App. Austin 1990, orig. proceeding)...15

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9 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 9 STATE STATUTES Tex. Civ. Prac. & Rem. Code Tex. Civ. Prac. & Rem. Code Tex. Crim. Proc. Code art. 646 (1856)....8 Tex. Crim. Proc. Code art Tex. Crim. Proc. Code art Tex. Disciplinary R. Prof l Conduct Tex. Fam. Code , 13 Tex. Fam. Code Tex. R. Evid , 9, 10, 11, 16, 17 Tex. R. Civ. P , 14, 15, 16 OTHER AUTHORITIES Advisory Committee s Note to Proposed Federal Rule , Steven Goode, et. al., Guide to the Texas Rules of Evidence: Civil and Criminal (2d ed. 1993)....8 McCormick, Evidence, 87 (4 th ed. 1992)...8

10 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 10 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES By A. Michelle May 1. Introduction This article is intended to overview the application of the attorney-client and workproduct privileges to juvenile cases. This is a relatively unlitigated area, and therefore, requires interpretation and extrapolation from other areas. I have also included a discussion of my theory regarding the application of a client s representative to the juvenile client context. II. Attorney-Client Privilege The attorney-client privilege traces its ancestry back to the reign of Elizabeth I and beyond. 1 Steven Goode, et. al., Guide to the Texas Rules of Evidence: Civil and Criminal (2d ed. 1993). Previously, however, the privilege was premised on a consideration for the oath and honor of the attorney. Id. In the 18 th century, this rationale fell into disrepute, and the justification for the privilege shifted to a focus on the need for lawyers to be fully apprised of the facts in order to provide effective representation. Id., citing McCormick, Evidence, 87 (4 th ed. 1992). In Texas, the attorney-client privilege was accorded statutory recognition early in the state s history. Goode, supra, 503.1, citing Tex. Crim. Proc. Code art. 646 (1856). The privilege continues virtually A communication is unchanged in Texas law today. Its purpose is the promotion of unrestrained communication and contact between the lawyer and client in all matters in which the attorney s professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding. Huie v. DeShazo, 922 S.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 Texas is defined in Rule 503(b): 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 to the client. Tex. R. Evid. 503(b). 2. Confidential communications. Rule 503(a)(5) defines confidential communications as follows: confidential if not intended to

11 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 11 be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Tex. R. Evid. 503(a)(5). The attorney-client privilege relates to communications made for the purpose of facilitating the delivery of professional legal advice and services to the client, but only when the attorney-client relationship has been established. However, communications made after the attorney has declined employment remain unprivileged. See McGrede v. Rembert Nat l. Bank, 147 S.W.2d 580, 584 (Tex. Civ. App. Texarkana 1941, writ dism d judgm t cor.). The privilege only attaches if the client consulted the attorney for the purpose of obtaining professional legal services. The attorney must be consulted in his capacity as an attorney. For example, if the attorney is acting as an accountant, bail bondsman, friend, or otherwise, the privilege is inapplicable. Clayton v. Canida, 233 S.W.2d 264, 266 (Tex. Civ. App. Texarkana 1949, no writ); Cathey v. State, 467 S.W.2d 472, (Tex. Crim. App. 1971); Modern Woodmen of Am. v. Watkins, 132 F.2d 352, 354 (5 th Cir. 1942); Childress v. Tate, 148 S.W. 843, 844 (Tex. Civ. App. Fort Worth 1912, writ ref d). when reasonably necessary for transmitting the communication or for the purpose of furthering the rendition of legal services, the communication is deemed confidential and qualifies for the privilege. However, the failure of a client to take reasonable precautions to ensure confidentiality may bear 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 Mental Retardation v. Davis, 775 S.W.2d 467, (Tex. App. Austin 1989, orig proceeding). A client s decision to divulge the communication to other persons may show that the client never intended his communications with counsel to be confidential. Cameron Co. v. Hinojosa, 760 S.W.2d 742, 746 (Tex. App. Corpus Christi 1988, orig. proceeding). But, not all communications made in the presence of or disclosed to third parties are left unprotected by the privilege. Disclosures made to further the rendition of legal services to the client are deemed confidential. Thus, third parties such as spouses, parents, business associates, or joint clients may be included. See Advisory Committee s Note to Proposed Federal Rule 503. Further, when a third person is reasonably necessary to transmit communications between lawyer and client (such as an interpreter), his presence does not destroy confidentiality. Id. By focusing on intent, the rule protects clients from eavesdroppers. When the communication is made, if the parties intend that it be disclosed to third persons only

12 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 12 Verbal exchanges qualify as communications, regardless of whether the words are spoken or written. So, documents prepared to facilitate the attorney-client relationship are communications. Enos v. Baker, 751 S.W.2d 946, (Tex. App. Houston [14 th Dist.] 1988, orig proceeding). However, documents that antedate the relationship are not covered and cannot be immunized from disclosure by merely placing them in the attorney s hands. Communications may be made by conduct, such as facial as expressions, as well as by words. There is a question regarding whether there is a privilege regarding the client s identity and fee arrangements. Normally, Texas follows the widely accepted common law rule that such matters are not shielded from disclosure. Borden, Inc. v. Valdez, 773 S.W.2d 718, (Tex. App. Corpus Christi 1989, orig. proceeding); Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 634 (Tex. App. Amarillo 1983, writ ref d n.r.e.). However, there are narrowly carved exceptions to this general rule. For example, where revelation of the fee arrangements would tend to implicate the client in the commission of a crime or to show an admission on his part subjecting him to civil liability, the privilege remains intact. Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App. Eastland 1979, no writ). 3. Special criminal privilege. In criminal cases, there is a special privilege that prevents the lawyer or lawyer s representative from disclosing any facts not necessarily confidential in nature, which came to the knowledge of the lawyer or lawyer s representative by reason of the attorney-client relationship. Tex. R. Evid. 503(b)(2). This rule was derived from former article of the Code of Criminal Procedure, which was repealed and replaced by this rule. It is likely that the courts will apply this rule to juvenile cases, despite the restrictions. First, it is formerly part of chapter 38, which has been specifically applied to juvenile cases. Tex. Fam. Code 51.17(c). Second, juvenile cases are quasicriminal in nature and are afforded the same protections and due process requirements as in adult criminal proceedings. In Re D. Z., 869 S.W.2d 561 (Tex. App. Corpus Christi 1993, writ denied). 4. Covered by privilege. The privilege covers communications between or among the client; the client s representative; the lawyer; the lawyer s representative; or the client, client s representative, lawyer or lawyer s representative representing another party in a pending action and concerning a matter of common interest in the pending action. Tex. R. Evid. 503(b)(1). Note, however, that statements between co-defendants, without a lawyer present, may not be privileged. Compare United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y. 1991), with Gulf Oil Corp. v. Fuller, 695 S.W.2d 769 (Tex. App. El Paso 1985, orig. proceeding).

13 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 13 A client is a natural person who, or any kind of entity which, is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining legal services from him. Tex. R. Evid. 503(a)(1). A representative of the client is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of a client. Id. It has been held, generally, that the privilege extends only to the attorney and persons who are the media of communication 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 least 1885, the privilege has been held to include friends or witnesses acting with the attorney and the individual client for the provision of the legal services. Rosebud v. State, 50 Tex. Crim. 475, 98 S.W. 858 (1906). A lawyer is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation. Id. The lawyer need not be a member of the bar of the jurisdiction in which his counsel is sought. See Advisory Committee s Note to Proposed Federal Rule 503. Further, sometimes the lawyer need not be a lawyer confidential communications by a client to a person he reasonably believes to be a lawyer fall within the privilege. See, e.g., United States v. Tyler, 745 F.Supp. 423 (W.D.Mich. 1990); But see, Richardson v. State, 744 S.W.2d 65, (Tex. Crim. App. 1987), vacated on other grounds, 492 U.S. 914, 109 S.Ct (1989). A representative of the lawyer is someone employed by the lawyer to assist in the rendition of legal services. Tex. R. Evid. 503(a)(4). So, communications made to office personnel such as law clerks and secretaries 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 become generally accepted that the scope of the attorney-client privilege encompasses agents whose services are required by the attorney in order to properly prepare his client s case. Ballew v. State, 640 S.W.2d 237, (Tex. Crim. App. 1980). This applies to consulting expert witnesses only. Where a psychiatrist is retained to examine a client and advise the lawyer concerning the client s mental state, communications made to and by the expert are privileged. Burnett at 769; Ballew at When an expert is hired with the expectation that he will testify at trial, there is no intention that the communications will remain confidential. 5. Application of the privilege. The attorney-client privilege belongs to the client and lasts, unless waived, as long as the client desires. It is not affected by the resolution of the particular controversy or termination of the attorney-client relationship. Bearden v. Boone, 693 S.W.2d 25, (Tex. App. Amarillo 1985, orig. proceeding). Although the primary matter protected by the privilege is a communication from the client to the lawyer, the statements and advice of the attorney are privileged as well. Dewitt and Rearick, Inc. v. Ferguson, 699 S.W.2d 692, 693 (Tex. App. El Paso 1985, orig proceeding). The privilege

14 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 14 attaches not just to the legal advice, but also to the complete communication between the client and the attorney, including communications containing factual The privilege may be claimed by the client or client s representative; the client s guardian or conservator; the personal representative of a deceased client; or the successor, trustee, or similar representative of a client that is a corporation, association, or other organization, whether or not in existence. Tex. R. Evid. 503(c). The client s lawyer or lawyer s representative at the time of the communication may also claim the privilege but only on behalf of the client. Id. So, the attorney has no standing to claim the privilege in his or her own behalf. Cole v. Gabriel, 822 S.W.2d 296 (Tex. App. Fort Worth 1991, orig proceeding). F. Exceptions and Limitations The attorney-client privilege contains a number of specific exceptions. These exceptions also apply to the work-product doctrine. 1. Crime/fraud exception There is no privilege if the services of counsel were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. The crime-fraud exception applies only when a prima facie case is made of contemplated fraud. The fact that the cause of action involves fraudulent conduct is insufficient. The attorney-client privilege is lost only when the legal communications or services information. GAF Corp. v. Caldwell, 839 S.W.2d 149, 151 (Tex. App. Houston [14 th Dist.] 1992, orig proceeding). were obtained in order to commit or plan to commit a fraud. 2. Breach of Duty No privilege extends to a communication relevant to an issue of breach of duty by a lawyer to the client or by the client to the lawyer. 3. Joint Clients Communications involving joint clients may not be privileged. When a communication is relevant to a matter of common interest between or among two or more clients, and the communication was made by any of them to a lawyer retained or consulted in common, there is no privilege when the communication is offered in an action between or among any of the clients. 4. Waiver The attorney-client privilege may be waived by the client. Thus, the client may consent to the giving of testimony by his attorney in respect to privileged communications. On the other hand, the attorney may not ordinarily disclose privileged communications over the client s objection. The privilege is waived when the client voluntarily testifies to the communication or permits another person to do so without objection.

15 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 15 The privilege must be raised with specificity or it is waived. Disclosure of attorney-client privileged information to third persons waives the privilege. By definition, the communications are intended to be kept confidential between the attorney and client. Therefore, disclosing the communication to a third party is an absolute waiver. (But, see 1. Offensive Use A party seeking affirmative relief may not use a privilege to prevent an opposing party from discovering outcome determinative information regarding the nature of the claim. An offensive use of a privilege may be found even if the privilege is asserted as a defense to a defense by a party seeking affirmative relief. The elements of the offensive use waiver are as follows: 1. The party asserting the privilege is seeking affirmative relief. 2. The privileged information sought must be such that, if believed by the fact finder, in all probabilty it would be outcome determinative of the cause of action asserted. Mere relevance is inusfficient, a contradiction in position without more is insufficient, and the confidential communication must go to the very heart of the affirmative relief sought. 3. Disclosure of the confidential communication is the only means by which the aggrieved party may obtain the evidence. III. Work-Product Privilege the discussion below regarding what third parties may be included within the privilege.) However, the work-product privilege is intended to prevent the opposing party to the litigation from obtaining the information; therefore, disclosure of workproduct to third persons who do not disclose it to the opposing party does not necessarily waive the work-product privilege. The work-product privilege is derived from the landmark United States Supreme Court opinion of Hickman v. Taylor: Proper presentation of a client s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.... This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other intangible ways aptly though roughly termed work product of the lawyer. Hickman v. Taylor, 329 U. S. 495, 511, 67 S.Ct. 385 (1947). Thus the work-product doctrine, unlike the attorney-client privilege is not concerned with the protection of client confidences. Rather, its purpose is to shelter the mental processes of the attorney by providing a privileged area within which the lawyer can analyze and prepare the case. United States

16 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 16 v. Nobles, 422 U.S. 225, 238, 95 S.Ct (1975); See also Owens-Corning Fiberglas Crop. v. Caldwell, 818 S.W.2d 749, 750 It is unclear whether the Texas civil or criminal work product privilege applies to juvenile cases. The civil privilege is found in the civil discovery rules. Tex. R. Civ. P As the civil discovery procedures have been held inapplicable to juvenile proceedings, the civil work product privilege may not apply either. Tex. Fam. Code The criminal work product privilege is contained in relatively undeveloped 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 that discovery in adult criminal proceedings is one-sided, so the opportunity to litigate the work product privilege does not arise very often. Since it is a yet unresolved point of juvenile law, both civil and criminal privileges will be discussed. A. Civil Work-Product Privilege. The attorney work-product privilege exemption was added to the Texas civil discovery rules in The 1999 amendments to the Texas Rules of Civil Procedure made a wholesale revision to this privilege. The new rule defines the scope of the privilege and expressly absorbs the traditional party communication privilege into the work product privilege. Significantly, the formerly separate privileged status for witness statements prepared or taken in anticipation of litigation has been expressly eliminated and witness statements are not work product, even if made in anticipation of litigation. (Tex. 1991). Texas Rule of Civil Procedure provides that work product is not discoverable. Work product is now defined as material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party s representatives. Work product also encompasses a communication made in anticipation of litigation or for trial between a party and the party s representatives or among a party s representatives. The new discovery rules divide workproduct into two categories. First, core work-product is defined as the work product of an attorney or an attorney s representative that contains the attorney s or the attorney s representative s mental impressions, opinions, conclusions, or legal theories. Core work product is NEVER discoverable. Other materials, mental impressions, and communications that fall within the definition of work product but do not qualify as core work-product are discoverable only upon a showing that the party seeking discovery has a substantial need for the material in the preparation of the party s case, and that the party is unable to obtain the substantial equivalent of the material by other means without undue hardship. B. Criminal Work-Product Privilege. The work-product doctrine is equally applicable to both criminal and civil litigation. As the United States Supreme Court stated in Nobles:

17 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 17 Although the work-product doctrine most frequently is asserted as a bar to discover in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt Almost all of the Texas criminal cases discussing work product relates to the prosecutor s right to resist discovery. Tex. Crim. Proc. Code That provision permits the defendant, upon showing of good cause, to obtain copies of several types of materials from the prosecution, except the written statements of witnesses and the work product of counsel and their investigators. Id.. The Court of Criminal Appeals had interpreted this work-product exemption to reach offense or invetigative reports prepared by the police, internal files or papers of the prosecution, statements prepared after interviews of prospective witnesses, and reports regarding chemical analyses. Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978); Mott v. State, 543 S.W.2d 623 (Tex. Criml App. 1976); Hoffman v. State, 514 S.W.2d 248 (Tex. Criml App. 1974); Alba v. State, 492 S.W.2d 555 (Tex. Crim. App. 1973). Since criminal discovery in Texas is generally a one-way street, courts have rarely been called upon to address the issue of defense counsel s work product rights. The first case to reach the Court of Criminal Appeals involved the prosecution s attempt to obtain a copy of a tape-recorded interview between a defense investigator and a or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case. Nobles at 238, The work product privilege was incorporated in Texas common law for criminal cases in Ott at 224. prosecution witness. Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993). After the defense cross-examined the witness concerning some statements he made during the interview, the trial court ordered the production of the tape and allowed the prosecution to play it for the jury. The Court of Criminal Appeals reversed, holding that the tape recording was work product because the interview was conducted to prepare the defense case for trial. Id. at 189. The Court noted that the interview was aimed at gathering information for impeachment purposes and aiding the defense in evaluating the state s case. Id. at 188. The Court reaffirmed this approach to work product in Skinner v. State. Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997), cert. denied, U.S., 118 S.Ct (1998). There, the Court held that the work-product privilege attached to a document created by a defense expert for purposes of discussion with defense counsel. Id. at Because the document revealed the expert s views about the strengths and weaknesses of the defense theory, the Court deemed it highly privileged work product. Id. at 538. Moreover, the defendant s use of the expert

18 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 18 as a witness did not waive the work-product protection. The Court emphasized that waiver occurred only when the witness made testimonial use of the work product material. Id. at 539. Testimonial use is equated with use before the jury and the Court stated that a document is used before the jury when it is either shown to a witness on the stand, identified by a witness, or partially read aloud to the jury. Id. at 539. Protection against non-compelled disclosure of a client s confidential communications to his attorney comes from C. Scope of the Privilege. Since the work-product privilege belongs to the attorney, it is the attorney who must claim it. The work-product exemption is continuing in duration and extends beyond the conclusion of the litigation for which the work was done. Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995). Specifically, work-product exempted in a prior criminal case is also protected from disclosure in a subsequent civil matter. Wood v. McCown, 784 S.W.2d 126, (Tex. App. Austin 1990, orig. proceeding). With the new civil work-product rule, it is yet unclear whether the continuing nature of the privilege will be continued. It is highly probable that it will be at least applied to core work product. Tex. R. Civ. P (b)(1). An objection based on attorney-client privilege does not preserve for appeal a claim based on the work-product doctrine. the Texas Disciplinary Rules of Professional Conduct. Pursuant to Rule 1.05, attorneys ordinarily are proscribed from knowingly revealing confidential information (including both privileged information and all other information relating to a client or furnished by a client that is acquired by the lawyer during the course or by reason of the representation of the client. Tex. Disciplinary R. Prof l Conduct So, the disciplinary rules require attorneys to keep confidential much that is not considered privileged. Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997). 1. Exceptions and Limitations. All of the exceptions applicable to attorney-client privilege also apply to the work-product doctrine, like the crime/fraud exception, offensive use, and waiver. The party resisting discovery has the burden to prove that the communication was made or the evidence acquired or developed in anticipation of the particular lawsuit in which the exemption is claimed. Republic Ins. Co. v. Davis, 856 S.W.2d 158, (Tex. 1993). Further, in order to qualify as workproduct in civil cases, the material, mental impressions, or communications must have been produced or made in anticipation of litigation or for trial. Tex. R. Civ. P (a). The anticipation of litigation test is satisfied whenever: 1. A reasonable person would have concluded from the totality of the

19 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 19 circumstances surrounding the investigation that there was a substantial chance that litigation would ensue; and, 2. The party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. National Tank Co. v. Brotherton, 851 The civil procedure rules absolutely exempt core work product, as discussed above. Other work product may be discovered but only if the party seeking the discovery has a substantial need for the materials to prepare the party s case and that party is unable to obtain the substantial equivalent of the material by other means without undue hardship. Tex. R. Civ. P (b)(2). The Texas Supreme Court has noted that the substantial need and hardship exception has been rarely invoked in Texas, but one case found that both the substantial need and undue hardship requirements were met when the parties seeking discovery attempted to discover information amassed by the state from responses to civil investigative demands made on third parties. State v. Lowry, 802 S.W.2d 669, 673 (Tex. 1991). Further, the Beaumont Court of Appeals, noting that the exception was underdeveloped in Texas, looked to federal case law to support its determination that credibility issues and the failing memory of a witness who had been interviewed by opposing counsel satisfied the substantial need and undue hardship exception. Dillard Dep t Stores, Inc. v. Sanderson, 928 S.W.2d 319, 321 (Tex. App. Beaumont 1996, orig. proceeding). S.W.2d 193, (Tex. 1993). A substantial chance of litigation means that litigation is more than an abstract possibility or unwarranted fear. The underlying inquiry is whether it was reasonable for the investigating party to anticipate litigation and prepare accordingly. Id. at 204. IV. Application to Juvenile Law Despite any direct law on the subject, obviously juveniles are going to be protected by the attorney-client and work-product privileges. An interesting question arises when contemplating who is a client s representative in the juvenile context. Consider the following points: A client is defined to include a natural person. Tex. R. Evid A client s representative includes one who has the authority to obtain legal services on behalf of the client or one who acts on the legal advice rendered. Tex. R. Evid A minor does not have the legal capacity to employ counsel or anyone to 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, no writ); In Re D.A.S., 951 S.W.2d 528 (Tex. App. Dallas 1997, no writ). Disclosures made to third parties to

20 ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES PAGE 20 further rendition of legal services are confidential communications. Tex. R. Evid A juvenile cannot waive privileges unless the waiver is in writing and Johnny goes home one morning after a long night out and tells his mother that he needs a lawyer. His mother asks why he needs a lawyer (trying to figure out what kind of lawyer he needs). Johnny tells her that he needs a criminal lawyer because during the night he stole a car, ran from the police and would probably be arrested pretty soon. Johnny gets arrested and placed in detention. So, Mom goes and hires the world s greatest juvenile defense lawyer. At the detention hearing, Mom testifies trying to get the Judge to release her son to come back home. The State asks her about her conversations with Johnny about the events and his actions. The defense attorney objects based upon attorney-client privilege.! In this scenario, isn t Mom acting as a representative of Johnny in hiring the attorney?! Wasn t the conversation (i.e., confession ) held for the purpose of obtaining legal services and getting legal advice?! Wasn t Mom within the media of communication between the lawyer and Johnny? signed by he and his attorney. Tex. Fam. Code So, consider the following hypothetical:! So, wouldn t that conversation be privileged? Even if Johnny had discussed the full details of the events in this scenario with Mom, I believe the privilege would still apply. This would be especially true if there were some impediments or hardships to the attorney interviewing the client and obtaining full information, like if Johnny were being housed in an out-of-county juvenile facility. Query: What happens if the crime Johnny committed was a crime against his mother so their interests conflict? Does that change the application of the client s representative designation and application of the privilege? I think any such communications which occur while the Mother is charged with representing the child s best interest are privileged. But, when a parent s interests conflict with the child s, then the court should appoint a guardian ad litem to represent the child s best interests. Then, communications between the guardian ad litem, the child, and the child s lawyer would be privileged. Further, since the child cannot waive the privilege except under very strict circumstances, wouldn t it be a breach of fiduciary duty for the guardian ad litem (or the attorney, for that matter) to reveal confidential communications to anyone