CCA Judge Cathy Cochran: Privilege rule proposed for deletion a "vestigal tail" with "no wag"

Here's an update straight from the source on proposed changes to Texas' attorney client privilege rule in criminal cases that's been in place since 1856. I couldn't be more flattered that Texas Court of Criminal Appeals Judge Cathy Cochran offered up this guest post reacting to a recent Grits item quoting Dallas defense lawyer Robert Guest, a law blawgger who's been sounding the alarm. I should be clear, though, as she was, that Judge Cochran is writing on her own behalf as an attorney, not in her capacity as a CCA Judge. (Even so, I wonder if any of the other eight want to sign up for guest blogging stints?!)

For more background, here's the text of the new rule she's discussing, and here's a letter from a federal public defender defending the rule. Lawyers in particular, let us know in the comments what you think of the proposed rule change in light of Judge Cochran's explanation. And thanks, Judge Cochran, for sharing your views with Grits readers.

From Judge Cathy Cochran, via email -

I am responding to your June 9, 2008, posting about the proposed deletion of Rule 503(b)(2) of the Texas Rules of Evidence, not as a judge on the Court of Criminal Appeals, but as an attorney who has studied and written about our rules of evidence for 25 years.

The deletion of the “Special Rule of Privilege in Criminal Cases” was proposed by UT Professor (and former interim Dean) Steve Goode, one of the three authors of the Texas Practice Guide to the Texas Rules of Evidence. Professor Goode has called this provision a “deceptive little sentence” which is confusing, misleading, and does not have any known independent meaning. In the most recent edition of his treatise, Professor Goode states:

When the consolidated rules of evidence were promulgated [in 1998], it [this “special” rule] reappeared, this time as Rule 503b)(2). The decision to include this oft-repudiated language in the new rule, under the title “special rule of privilege in criminal cases,” is truly bizarre. One can only hope that the Court of Criminal Appeals will reconsider and delete this provision from the new Rule before it generates any mischief.

Professor Goode is a member of the Rules Advisory Panel, an informal working group of two professors, a court of appeals justice, a district court judge, a defense attorney, and a prosecutor that advises the Court of Criminal Appeals on possible changes to the Rules of Evidence and Rules of Appellate Procedure. Professor Goode wrote a scholarly memo to the group in October of 2007, recommending the deletion, and, at its November meeting, the group unanimously agreed that the “special rule of privilege” was confusing, misleading, and devoid of any known content. It recommended that the Court delete it, but added an official comment to the deletion:

This rule governs only the lawyer-client privilege. The deletion of former Rule 503(b)(2) [Special rule of privilege in criminal cases] is not intended to restrict the scope of either the work-product doctrine or the lawyer’s professional duty not to reveal the confidential information of a client. See Texas Disciplinary Rule of Professional Conduct 1.05.

That is, the deletion did not affect the attorney-client privilege as it is set out in the rest of Rule 503 and it did not affect either the attorney work-product doctrine or the lawyer’s ethical responsibilities of confidentiality. In essence, the deletion was intended to eliminate a vestigial tail that had no wag to it. See Texas Rules of Evidence Handbook, 513 (Houston Law Review 1993) (suggesting that “one might conclude that the last sentence in Criminal Rule 503 is nothing but a vestigial tail carried over from the prior statute where it also had lost any meaningful content.”)

Why did Professor Goode think this rule has no independent meaning in the modern era? The language itself has been enshrined in Texas statutes since 1856. At that time it was seen as part of the common-law attorney-client privilege. In 1965, the Texas Legislature enacted article 38.10 which set out the then-existing attorney-client privilege:

An attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to the knowledge of such attorney by reason of such relationship.

This was a very succinct (perhaps too succinct) expression of the attorney-client privilege as it existed under the common law. As noted by Mr. Richard Anderson, the Federal Public Defender of the Northern District of Texas, in a recent, scholarly letter to the Court of Criminal Appeals opposing the deletion of Rule 503(b)(2), “A series of cases winnowed the ‘any other fact’ language to providing little additional substantive protection at all” to the common-law attorney-client privilege.

Thus, even before the enactment of the Criminal Rules of Evidence in 1986, this “mysterious” language did not appear to have any independent meaning. When the Criminal Rules of Evidence were promulgated in 1986, the drafters recommended that this infelicitous and superfluous language be left out of Rule 503, but defense attorneys asked that it be included in the attorney-client privilege, if only for its symbolic value. So it was. And, despite the fact that this “special rule” had not been used as the basis for excluding evidence in the twelve years between the promulgation of the Criminal Rules of Evidence in 1986 and the melding of the Civil and Criminal Rules of Evidence in 1998, it was dutifully carried forward in the combined rules. In fact, this “special” rule has not been used to exclude otherwise admissible evidence for more than a century.

It may be thought that this “special rule” is an oblique reference to the attorney work-product doctrine in Texas. It might be, but the scope of the work-product doctrine has been developed by judicial cases, not by this rule. Rule 503 does not even pretend to deal with the entirely distinct concept of the work-product privilege. It deals only with the attorney-client privilege, as the title of the rule states. These are two separate privileges and they should not be confused, mingled, or mashed together. As Professor Goode has argued, the “special rule,” nestled within the attorney-client privilege rule, confuses the two different doctrines.

Mr. Craig Jett, President of the Texas Criminal Defense Lawyers Association, came to last month’s meeting of the Rules Advisory Panel and asked the group to recommend retaining the “special rule” as a bulwark against encroachment upon the work-product doctrine. He did not believe that the official comment to the 2008 deletion of the “special rule” was sufficient to guard against a possible erosion of the work-product privilege. The Advisory Panel thought that he had valid concerns. It suggested that he and Mr. Anderson draft a proposed rule covering the scope of the work-product doctrine in Texas criminal cases–a separate evidentiary rule protecting both defense and prosecution work product–that might be promulgated by the Court of Criminal Appeals or as a Code of Criminal Procedure statute to be enacted by the Texas Legislature. It was felt that a rule that actually said something concrete would be more valuable than a “mysterious” rule that, according to Richard Anderson, has only the power of “sympathetic magic.” The panel agreed with Mr. Anderson that

there are few policy arguments against codifying work product as a rule of evidence. The fact that work-product performs a different function than the attorney-client privilege only militates in favor of its inclusion into the rules of evidence. The evidentiary rules provide a legal protection from the court. The professional rules of conduct cannot prevent a court from compelling a defense attorney to testify about facts underlying his investigation of the case. In other words, keeping the provision could only be beneficial for the criminal justice system and hardly causes any harm.

One might conclude that the “special” rule has not caused any harm because its “mysterious language” has been studiously ignored. If Texas criminal practitioners want an effective and meaningful attorney work-product privilege rule, they can and should draft one. “Sympathetic magic” may have some symbolic value, but it surely does not have the value of a robust, explicit, and clear rule that courts may easily apply.

Informed and deliberate debate is essential to the progress of the Texas criminal justice system. One hopes that the current dispassionate and scholarly debate will lead to tangible improvements.