Undoubtedly, one of the unique relationships that you can have with a person is with your attorney. The fact is that the circumstances of your developing a relationship with this person probably cannot be replicated in any other area of your life. You are going from strangers to sharing secret deals with this person on an ongoing basis. For that, there needs to be a great degree of trust between you and your attorney and a willingness to share information with them that you probably would not want to with any other person on the planet.
Again, I think the word trust needs to be significantly emphasized when discussing your relationship with your attorney. It’s not as if you will trust this person without question from the beginning of your relationship, but for you to have an ideal relationship with them, trust needs to develop throughout a period; preferably, the trust needs to have developed sooner rather than later. The reason for this is that there will come a time in your family law case, probably relatively soon, where you will need to answer questions and adjust to the changing dynamics of your case. That is done most effectively when you have a good relationship with your attorney. This is because it is unlikely that all the information relevant to your divorce paints you in the best light or is favorable to you.
Think about it as you would on report card day when you were a kid. It was a whole lot easier to come home and show your parents your report card when you always had versus when you had grades that weren’t as good. All of us are proud to share information that puts us in a good light. However, family law cases are not like that. Often you will be put into a position where you will have to decide what is more critical: your pride or your ability to be honest with your lawyer. Often, this honesty can turn the tide of your case and put you in a position to succeed.
Communication in any relationship is based on trust. You and your lawyer have to communicate with one another without hindrance or barriers for you to receive the help you need in your case. That is the critical point to remember. You hired your attorney for a reason. Namely, so that you could receive help for a vital situation in your life, when you go to the doctor, and the doctor asks you about your symptoms, if you leave most of your symptoms out that are somewhat embarrassing, you may end up receiving less than excellent medical care period just as your doctor relies upon you, to be honest, does your attorney. I recommend having skeletons in the closet discussion at the beginning of your case. That is where you talked to your lawyer about issues that may not be the most desirable to discuss but are nonetheless very important for you and your case.
The attorney-client privilege
The attorney-client privilege exists in Texas to protect the information that your attorney learns from you during their representation of you. From there, any work that your attorney does base on this information is also protected in terms of the materials prepared and communications made to you. We need to discuss what is and what is not covered by this attorney-client privilege and how you and your attorney can protect the information you share. In a typical family log case, there are not many opportunities for this information to come to light unless a client inadvertently shares materials or information that they do not have to. For that reason, I want you to avoid putting yourself in a situation where you end up sharing materials that are not necessarily working and actively hurt your case.
The reason why an attorney-client privilege exists is to encourage you to discuss matters related to your case with your attorney. The problem you will encounter in your divorce or child custody case is that if you do not feel comfortable discussing matters related to your topic with your attorney, your lawyer will be put in a rough position. Namely, they will not be fully informed about your case and will suffer because they will not be able to help guide you as well as possible. Think about being in a situation where a friend tells you a story but then inadvertently leaves out an important detail. That detail could shape your entire opinion on the matter you were discussing and could even change the advice you were asked to provide.
The same is true in your Texas family law case. You and your attorney should feel comfortable exchanging information, and mostly, you should feel at ease and sharing knowledge that stands to benefit you with your lawyer. Understanding that the information and materials you provide to your attorney are to remain confidential unless you all choose to make them known to your opposing party is intended to give you the confidence necessary to share information with your lawyer.
Not only does this privilege extend to your attorney but also to their staff. You will quickly learn in your family law case that the staff that your attorney employs is almost as important as the attorney him or herself. The reason is that your lawyer’s team performs so much of the day-to-day work done on these cases. The phone calls you make, responding to discovery, scheduling hearings and mediations, all of this is handled by legal assistance in paralegals at most offices. This means that what you share with your attorney’s staff also remains privileged.
However, it is essential to remember that the communications you make must help your lawyer provide you with legal services. If you are communicating with your attorney based on any other matter unrelated to your specific legal case, you should know that the communications will not be privileged. Bear this in mind when you have casual discussions with your attorney or ask them for advice that is unrelated to your case. You should be clear with your attorney when discussing matters related to the topic and if you are talking about irrelevant things.
Another factor to weigh when you’re determining whether or not the communication you are making will be considered privileged under the law in Texas is whether or not another person is present with you when you are making a statement. Keep in mind that if you have friends or family with you constantly and they come to every meeting with you and your attorney, the privilege regarding confidentiality between you and your attorney may be waived due to another person other than your attorney being present. Be mindful of this if you are the type of person who always has to have a friend or family member with you when meeting with your lawyer. We have had clients over the years who have preferred to meet with us with a friend or family member present with them; this always complicates the matter of maintaining the attorney-client privilege in these crucial communications. Again, it is vital to develop trust with your lawyer to claim this significant privilege throughout your case.
What is the work product doctrine?
The work product doctrine protects any ideas or decisions that are made regarding your case by your attorney. This is done because the information conveyed to your attorney is protected by the attorney or someone working by their staff. Work product typically includes memos to 2 other attorneys at the office about your case, notes, emails, letters, and documents of this nature. Your attorney will have to do a great deal of preparation and getting ready for a trial if one has to be set in your case. For that reason, their work product needs to be kept safe and not fall into the hands of anyone else, especially the opposing party.
Specifically, work product includes any materials prepared, developed, or made in preparation for a hearing or trial. This work product doctrine is based on wanting to protect your attorney’s work in anticipation of going to court. Specifically, it is intended to be done in anticipation of litigation. In Texas, the specific work product that will be protected is done in conjunction with whether or not there is a substantial chance that your case will go to court. As long as a reasonable person believed that there was a significant risk of going to court for that particular matter, the work product will be privileged.
What are the main differences between the attorney-client privilege and work product doctrine?
To start with, these protections exist to serve different purposes. The work product doctrine, for instance, doesn’t care much about protecting your confidential information. Instead, the purpose of the work product doctrine is to protect your attorney and their thoughts from allowing the lawyer and their staff an opportunity to prepare your litigation case adequately. Another aspect of the work product doctrine that causes it to be different than the attorney-client privilege is that it covers notes, memos, and other written materials utilized to prepare for litigation.
Yeah, suppose the attorney-client privilege is waived due to a third party being present for specific communications. In that case, the work product doctrine could still be utilized to protect the information discussed therein. You or your attorney can waive the attorney-client privilege on a broader scale, whereas the work product doctrine would be analyzed piece by piece in terms of what could be waived. Specifically, I think it is crucial for you as a client to understand that miss takes can occur regarding these types of protections. For instance, we have already covered how the privilege protects only matters related to your legal case. If you ask your attorney for life advice, business advice, or other types of advice not related to your topic, then these protections do not apply.
With technology being utilized now more than ever, emails specifically can cause problems when it comes to sharing information and the possible lapse in the attorney-client privilege. For instance, if your attorney asks you for information via email and then you forward that email to another person, the initial email sent is no longer confidential, and your attorney-client privilege is waived. Bear in mind that any email or communication you make cheer attorney that you willingly make available to another person could and probably will waive the attorney-client privilege.
Special issues related to family law and the attorney-client privilege
when it comes to family law cases, specific provisions are especially relevant to this area of the law. Let’s think about a situation where you and your wife contact an attorney about an uncontested divorce. One attorney cannot represent both you and your spouse in a divorce case, and the lawyer should speak to both of you that the lawyer only means you or your spouse individually. This is especially consequential if you have a conversation with the attorney thinking that he tells you that the lawyer only means your spouse. It doesn’t matter what you thought or if your divorce is relatively straightforward or cordial. Speaking to someone who is not your attorney in a confidential manner does not necessarily mean that the communication will be personal.
Another important aspect of this discussion is considering what happens if your parents are paying for your attorney in a divorce. You see this quite a bit where one spouse does not have much money and cannot afford to pay for an attorney independently. In that case, the spouse may talk to their parents about paying for an attorney for them. There is nothing wrong with doing this, and it is often a great way 2 obtain representation when you are short on funds. However, your parents need to be aware that their role in your case is to pay the attorney’s fees if that is what you and your parents have agreed to.
What your parents cannot do is sit in on phone calls or meetings between you and your attorney. The attorney-client privilege extends to an attorney and one of their clients. Just because your mother is paying for your attorney’s fees does not mean that she can force her way into conversations between you and your lawyer. We have already covered how inviting your mother into the conversation like this would probably void the attorney-client privilege, anyways. Otherwise, it would help to keep all the other people outside of the conversations you have with your attorney.
Closing thoughts on confidentiality in family law cases
Without a doubt, the attorney-client privilege and the work product doctrine are critical two your attorney can adequately represent you. Without these privileges, you may not feel comfortable sharing intimate details about your life with your lawyer. However, these protections can be waived or avoided in particular situations based on your behavior. Specifically, I have in mind circumstances involving bringing third parties into conversations with your lawyer or sharing communication that was intended to be just with your attorney. Additionally, you need to know who your attorney is and who represents whom in a divorce or child custody case. In some family law cases ad Litem attorneys, Merck his attorneys and other lawyers become involved in a case. You will only have one attorney with whom you have the privilege of an attorney-client relationship.
Above all else, it is critical for me and your attorney to have a trusting and open relationship with one another. Every person’s relationship with their attorney looks different. Still, it would help if you strived to create a relationship that encourages communication and helps achieve whatever goals you have for your case.
Questions about the material contained in today’s blog post? contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.