Monday, June 09, 2008

CCA could weaken attorney-client privilege rule in place since 1856

Heads up, criminal defense lawyers!

Robert Guest over at the Dallas Criminal Defense Lawyer Blog reports brings word the Texas Court of Criminal Appeals:
is moving to abolish the special rule of criminal attorney-client privilege. This would leave defendants with a much weaker protection currently only used in civil cases.

Here is the [rule] COCA is seeking to abolish-
Texas Rule of Evidence 503(b)(2)

(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.

The Court of Criminal Appeals has ruled (see their proposal here) that this protection will be deleted on September 1st, 2008. COCA has made this decision without any public input. The Texas Criminal Defense Lawyers Association was only notified of this decision after it was made.

This special rule has protected Texans since 1856. There is no reason to change it. This letter by Federal Public Defender Richard Anderson documents the history and case law surrounding 503(b)(2).

You Can Help
The COCA judges who made this decision are also politicians. They are elected by the public and accountable to them. Let these judges know that you do not want 503(b)(2) deleted.

Here is their contact information-
Judge Cathy Cochran,
Judge Tom Price,
Judge Cheryl Johnson,
Judge Larry Meyers,
Judge Barbara Hervey,
Judge Charles Holcomb,

Or you may snail mail your letters to individual judges at:
Texas Court of Criminal Appeals, P.O. Box 12308, Capitol Station, Austin Texas 78711

It is bad enough that appellate judges rewrite the Constitution to destroy your rights, now they want to rewrite the rules of evidence.

Yikes! Where'd that come from?

MORE: See Houston defense attorney Mark Bennett's analysis of the proposed rule change, which to his credit he first published back in March.


Michael said...

Grits, you literally could not print my reaction to this rule change.

Yes, the CoCrAp judges who support this change are politicians. They are spineless politicians. I hope this rule change gets the burial it deserves.

Could someone who knows more about the rule-making process than I do explain whether it's a done deal?

Anonymous said...

Well they are taking public comment on it until June 30 and then it goes into effect in September.

I'm unclear on what happens if they update it due to the public comments... does the update take hold in September or is there another comment period for the public to speak out about the updates.

Anyway I am very curious to know WHY this change and WHY now? There must be some reason for suggesting this but what?

Anonymous said...

This is not a done deal. Public comments are allowed until June 30th.

If these judges receive enough comments they could choose to not change the law.

Please email these judges!!!

The Local Crank said...

Not to mention the fact that, irrespective of any changes to the CLE, the Canon of Ethics still apply. If I am called by the Government to testify against my client, I have the choice of jail for contempt or handing over my bar card for flagrant misconduct.

Anonymous said...

So what happens if the state bar disbars a Supreme Court justice?

TxBluesMan said...

This idea is crap.

That is an area that should not be messed with.

Anonymous said...

Indeed, where did this come from.

I've formulated some hypotheses as working explanations:

1. Sometime in the near past, the CCA has had to refuse to affirm a conviction due to the operation of Rule of Evidence 503(b)(2). So the CCA has decided on its own initiative to do away with that rule in order to make it easier to successfully prosecute cases by compeling attorneys to be witnesses against their own clients.

2. Some time in the near past a Texas prosecutor has been unable successfully to prosecute someone because Rule 503(b)(2) has blocked the prosecutor from using an attorney as a witness against that attorney's client. Or,

3. Somewhere, a Texas prosecutor has a prosecution/case pending, or has an indictment pending, which the prosecutor knows cannot be sustained due to the operation of Rule 503(b)(2).

4. The prosecutors in Nos. 2 and 3, acting together or through the Prosecutors' lobbying arm, have been meeting privately and secretly with the Court -- and that could mean clerks and assistants, not necessarily Judges -- in an effort to have Rule 503(b)(2) throttled.

5. The Prosecutors have been successful.

Anonymous said...

Dear citizens,

If you are charged with a criminal offense, don’t tell your defense attorney the truth about your case. Also it is very important to always pay your attorney. If you don’t you are lucky if he only withdraws from the case. Don't file a grievance, even if he deserves it. You might be better off defending yourself.

Yours Truly,
Texas Court of Criminal Appeals

Anonymous said...

Well we know who is guilty or not, otherwise you wouldn't even be here, right?

All these rules of evidence and procedure are mere technicalities, nothing to do with proper dispensation of justice.

The old stooges who put them in place are relics of a bygone time, even "quaint" by today's standards.

Anonymous said...

Are these the same clowns responsible for the "Integrity Unit"? [ftr]

The Monty Blog said...

This is just great!

It makes my job so much easier.

I'll now develop my own office-policy Miranda warnings, to be delivered to every client.

I'll just tell my client not to discuss anything at all with me, because such discussions can and will be used against him at trial.

There, that takes care of the pesky time-consuming client consultations.
More time for golf.

I will also eliminate the difficult time-consuming case investigations; after all, such investigations might result in my acquiring information useful to the prosecution of the case. I'm certainly not doing the State's work for them.

Seriously though, what is the actual effect of the deletion of the special privilege? The footnote to the order says the work-product doctrine will be maintained. What kind of evidence would soon be admissible that wouldn't have been previously?

There's a lot of outrage about tampering with the privilege rule, but most is a hyperbolic assessment that the attorney-client privilege is being abolished in its entirety. I've actually heard lawyers' discussions that indicated they really believed the privilege was wholly gone. That's not so, not to say that the CCRAP wouldn't try it if they could get away with it.

Anonymous said...

Do y'all notice the weird similarity between this and the next Grits post?

The Governor's mansion - built in 1856, burned down in 2008.

Texas attorney-client privilege - adopted in 1856, burned down in 2008.

I'm just saying. Does anybody know where the COCA judges were Sunday morning? Can they prove it?

Anonymous said...


Anonymous said...

I suggest you do a little research about this particular rule. The Court appears to be recognizing a number of its own opinions that rendered this a dead letter. Moreover, the comments to the rules change show that the attorney work product doctrine is still in place. Sure, make a hue and cry, but maybe you should read cases like Brasfield v. State¸600 S.W.2d 288, 295 (Tex. Crim. App. 1980)(attorney testimony that defendant in city where murder occurred on day of murder did not violate attorney client privilege where not revealed to jury that he was defendant’s attorney); Jackson v. State, 624 S.W.2d 306, 309 (Tex. App.–Dallas 1981, no pet.)(attorney testimony that he prepared affidavit of non-prosecution signed by victim did not violate attorney client privilege); Austin v. State, 934 S.W.2d 672, 673, (Tex. Crim. App. 1996)(attorneys may testify about information they possess so long as no communication is revealed, attorney’s communication of trial setting to client not privileged);
Manning v. State, 766 S.W.2d 551, 553, 558 (Tex. App.–Dallas), opinion adopted, 773 S.W.2d 568 (Tex. Crim. App. 1989)(attorney’s testimony that he represented defendant at trial and that defendant had a rational factual and legal understanding of the proceedings did not violate attorney client privilege); Russell v. State, 598 S.W.2d 238, 252-53 (Tex. Crim. App. 1980)(attorney’s testimony that he represented defendant in a guilty plea, that defendant signed plea papers, and that attorney had not forged defendant’s signature did not violate attorney client privilege); Church v. State, 552 S.W.2d 138, 141-42 (Tex. Crim. App. 1977)(attorney client privilege not violated by testimony that trial counsel was present at a live lineup); Lopez v. State, 651 S.W.2d 830, 838 (Tex. App.–San Antonio1983, pet. ref’d)(defendant’s former attorney testified he was at the crime scene did not violate attorney client privilege).

Note that almost all these decisions predate the mid '90's swing away from the far left.

Anonymous said...
This comment has been removed by the author.
Anonymous said...

Are you arguing that since COCA frequently ignores the plain language 503(b)(2) they should just go ahead and delete it?

By that logic COCA should erase Article 1 Sec 9 of the Texas Constitution.

How about this provision of Art 1 Sec 10 "He shall not be compelled to give evidence against himself"?

COCA ignores the clear language of that protection- why not just delete it?

We need 503(b)(2), and other protections even in COCA will not enforce them. Some day, when judges of a different political bent are elected, those provisions may be enforced as they were written.

Anonymous said...

I agree Robert, you don't need to remove the entire rule just because there are many exceptions.

If it has no other purpose, at least the rule forces the court to justify itself each time it wants to find another "exception" to the plain language.

Anonymous said...

Robert, you are grossly overstating the meaning of 503(b)(2). The CCA recognized long ago that the privilege is about protecting communication between the client and the lawyer, not about making the lawyer's life easier when he happens to be a witness in other respects. If you see your client, Joe, run from a bank with gun and money bag in hand, do you really think his identity is protected by the privilege? Sure, Joe's revelation to you in your office that his deepest and darkest desire is to be the next Clyde Barrow would be protected, but that is not what the dead language goes to. And certainly, you could not claim that Joe telling you that he is leaving your office to rob a bank in order to pay your fee is privileged under the crime-fraud exception. Note also that the CCA has stated in its order that this change does not affect the work product doctrine. So, your strategies, thoughts, and opinions, including your opinion that Joe's statements frighten you, remain sacrosanct.

Anonymous said...


If you really believe what you say why remain Anon?

I'm not overstating the meaning. The plain language calls for the protection of "any fact". Just because COCA has ignored this clear language doesn't mean we should delete it.

You know there are already exceptions for future crimes etc. I have not mentioned those situations. I should not be a witness against my client because I choose to investigate the case.

It's a protection you will want when you are arrested, lest your defense lawyer take the stand against you.