Hampton defends privilege rule: "The vestigal tail you save may be your own"

Long-time Texas Criminal Defense Lawyer Association stalwart Keith Hampton offered up this response to Court of Criminal Appeals Judge Cathy Cochran's guest post yesterday in which she defended the court's proposed deletion of part of the attorney client privilege rule. See also the text of the proposed rule change, Judge Cochran's post, and a letter from federal public defender Richard Anderson regarding the proposed deletion.

From Keith Hampton, via email -

As one who very much respects the views and great work of Judge Cochran, I agree that the discussion for rule changes should be deliberative and thoughtful, an approach I have no doubt the advisory group has taken, and I am encouraged to see Judge Cochran lead the way. Past TCDLA president Richard Anderson’s letter was offered to the group in that spirit, as was current President Craig Jett’s participation. I also do very much agree the defense bar should write a work product privilege and make it explicit, and we are preparing to do just that. But the elimination of the special rule of privilege has no support among the lawyers who would be directly impacted by its abolition; in fact, defense lawyers are widely opposed, in part because we see no concrete proof in support of any of the more abstract objections lodged against it.

To the law professor who was apparently the chief advocate for the proposal and who somehow feared “mischief” by its retention, I would suggest that “mischief” can be generated as easily by the removal of language as by its insertion. What some prosecutors would do with the change in the law can be left to their (and our) imaginations. As for the perceived frailty of the rule, reenacted in every Code of Criminal Procedure since 1856, its treatment seems unfair: first, it is rendered toothless through judicial interpretation, then its lack of bite is duly noted by scholarly law commentaries, and now its abolition is proposed on grounds that it lacks teeth. If there has been any victim of mischief, it is the rule itself.

While civil practitioners and some scholars may view the rule as “confusing,” it is sparkling clear to the criminal defense lawyer who will take the law at its word: she will be protected from compulsion to divulge “any other fact” arising from her relationship with her client. This language plainly supplements the other provisions regarding the attorney-client privilege, whatever literary criticism might be lobbed against it. For the defense lawyer at the immediate end of a prosecutor’s interrogation, the rule’s clarity is at least comforting, and if adequately enforced, a true shield for the attorney-client relationship.

A defense attorney might argue in a future case, perhaps more successfully than his predecessors, that this language has meaning specific to the realm of criminal defense, where lawyers themselves are targeted by the prosecution to give up confidences and to become the enemy of their clients. It is in the criminal defense crucible where the value of such a rule currently declared to be “lost of meaningful content” might yet be fulfilled. The tail may be theoretically less vestigial than a professor might think, and it will be wagged vigorously the next time the State subpoenas a defense lawyer for “facts” she might have learned by virtue of her representation of someone the prosecution very much would like to imprison or kill. We should keep the rule. To every person who may ponder its worth, you would do well to remember: the vestigial tail you save may be your own.

Keith S. Hampton, Treasurer of the Texas Criminal Defense Lawyers Association