law-attorney-client privilege | judicial proceedings and communictions privilege absolute immunity
ATTORNEY-CLIENT PRIVILEGE
Attorney-Client Privilege
The attorney-client privilege protects from disclosure confidential communications between client
and counsel made for the purpose of facilitating the rendition of legal services. See Tex. R. Evid.
503(b); Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996); Arkla, Inc. v. Harris, 846 S.W.2d 623,
629 (Tex. App.-Houston [14th Dist.] 1993, orig. proceeding). This privilege attaches to the complete
communication between attorney and client, including legal advice and facts therein. Marathon Oil
Co., 893 S.W.2d at 589. The subject matter of the information communicated is irrelevant when
determining whether the privilege applies. Id.
The attorney-client privilege applies only to communications intended to be confidential between
the attorney and the client and made for the purpose of facilitating the rendition of legal services for
the client. See Tex. R. Evid. 503(b); Arkla, Inc., 846 S.W.2d at 629. A communication is
"confidential" if it is not intended to be disclosed to third persons other than those persons 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). If
a matter for which a privilege has been asserted has been disclosed to a third party, the party
asserting the privilege has the burden to prove that no waiver occurred. Arkla, Inc., 846 S.W.2d at
630.
Crime-Fraud Exception
Texas Rule of Evidence 503(d)(1) provides that material otherwise protected by the attorney-client
privilege is discoverable if the services of the lawyer 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. See id.; see also Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 227
(Tex. 1992) (orig. proceeding). The crime-fraud exception applies only if (1) the party asserting it
establishes a prima facie case of contemplated fraud and (2) there is a relationship between the
document for which the privilege is challenged and the prima facie proof offered. See Granada, 844
S.W.2d at 227; Warrantech Corp. v. Computer Adapters Servs., Inc., 134 S.W.3d 516, 527 (Tex.
App.-Fort Worth 2004, no pet.).
The prima facie requirement is met when the proponent offers evidence establishing the elements
of fraud and that the fraud was ongoing, or about to be committed at the time the document was
prepared. See In re AEP Texas Central Co., 128 S.W.3d at 692; Cigna Corp., 838 S.W.2d at 569.
Mere allegations of fraud are not sufficient. In re AEP Texas Central Co., 128 S.W.3d at 692; Cigna
Corp., 838 S.W.2d at 569; In re Monsanto Co., 998 S.W.2d at 933-34. Similarly, the fact that the
plaintiff's cause of action involves fraudulent conduct is also insufficient. Cigna Corp., 838 S.W.2d
at 569. The fraud alleged to have occurred must have happened at or during the time the
document was prepared, and the document must have been created as part of perpetrating the
fraud. Id. The trial court must make findings both that the prima facie case has been established
and that a nexus exists between the document at issue and the alleged fraud. See Granada Corp.,
844 S.W.2d at 227; Freeman, 820 S.W.2d at 861-62. The nexus must be established for each
privileged document. See Freeman, 820 S.W.2d at 861.
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