Privilege vs. Confidentiality

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We’ve all been there. You’re set for trial, you get the State’s witness list, and a name seems vaguely familiar... and uh-oh, you’ve represented one of the witnesses before. And now the state intends to call him as a witness at trial, to testify against your current client.

So what do you do? Can you continue forward with trial, and to your current client’s benefit, impeach that former client with a theft/felony/crime of moral turpitude conviction you helped him get years ago?

The law is very straightforward, although the practical application can be messy. Under Rule 1.05 of the Texas Rules of Professional Responsibility, a lawyer cannot use confidential information against a former client, for the lawyers benefit, for a new client’s benefit. So what exactly is confidential information? Well Rule 1.05 (a) says it this way:

Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client [emphasis added].

So that means that privileged information obtained in the secret come-to-Jesus meeting in your office, and unprivileged information obtained from the normal course of your representation, are both confidential information for the purposes of Rule 1.05. So unless information is publicly known (widely known to the general public, usually as a result of media coverage, but not just available to the public as a public record), you can’t divulge information you know about a former client. (See Texas Ethics Opinion 595.)

So as the trial lawyer in our example, you are put in a huge ethical dilemma. If you reveal confidential information, you subject yourself to possible sanctions. If you hold back and don’t use that information to your current client’s benefit, you commit another rules violation in that you have a conflict of interest with either your former client under Rule 1.09(a) (conflict of interest with former client) and Rule 1.06(b)(2) (conflict of interest with current client).

So what should you do? Tell the judge of this problem so it’s out in the open. And what happens then? Most likely, he or she will probably do one of three things: 1) take you off the case, 2) ask for your former client’s consent so you can spill the beans (just make sure it’s informed consent, not just a “yeah, whatever” from your old client), or 3) irritated, order you to quit stalling and go forward with trial.

If the court takes you off the case, then you’re out of ethical hot water (except you may have to give money back to your current client). If the client consents, you’re good to go. If the court orders you to go forward, that in and of itself is an exception to the prohibition against disclosing confidential information un­der rule 1.05(c)(4).

There are a few “get out of jail free” exceptions to this problem as well. Defending yourself against allegations of wrongdoing, fee disputes, etc., can all make confidential information fair game. If you ever get jammed up or confused, you can always call the TCDLA ethics hotline at 512-646-2734. They are very knowledgeable lawyers and are there to help. Good luck and have fun!