(a) Definitions. In this rule:
(1) A “client” is a person, public officer, or corporation, association, or other organization or entity—whether public or private—that:
(A) is rendered professional legal services by a lawyer; or
(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.
(2) A “client’s representative” is:
(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or
(B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.
(3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.
(4) A “lawyer’s representative” is:
(A) one employed by the lawyer to assist in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.
(5) A communication is “confidential” if not intended to be disclosed to third persons other than those:
(A) to whom disclosure is made to further the rendition of professional legal services to the client; or
(B) reasonably necessary to transmit the communication.
(b) Rules of Privilege.
(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:
(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;
(B) between the client’s lawyer and the lawyer’s representative;
(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action;
(D) between the client’s representatives or between the client and the client’s representative; or
(E) among lawyers and their representatives representing the same client.
(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.
(c) Who May Claim. The privilege may be claimed by:
(1) the client;
(2) the client’s guardian or conservator;
(3) a deceased client’s personal representative; or
(4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so.
(d) Exceptions. This privilege does not apply:
(1) Furtherance of Crime or Fraud. If the lawyer’s services 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.
(2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client.
(3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer.
(4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to which the lawyer is an attesting witness.
(5) Joint Clients. If the communication:
(A) is offered in an action between clients who retained or consulted a lawyer in common;
(B) was made by any of the clients to the lawyer; and
(C) is relevant to a matter of common interest between the clients.
Notes and Comments
Comment to 1998 change: The addition of subsection (a)(2)(B) adopts a subject matter test for the privilege of an entity, in place of the control group test previously used. See National Tank Co. v. Brotherton, 851 S.W.2d 193, 197-198 (Tex. 1993).