Professional Responsibility

Sunil Khemaney

“Confidential” is defined differently in the Texas ethics rules and the Texas attorney-client privilege. The privilege defines a confidential communication as one that is not intended to be disclosed to third persons and provides that a client may prohibit a lawyer from disclosing such confidential communications. The ethics rule defines confidential communications more broadly to include both the communications protected by the privilege as well as all other information relating to a client or furnished by a client during the course of representation. It states that a lawyer shall not reveal confidential information to anyone whom the client has instructed is not to receive it, or to anyone else. The ABA rule interestingly does not concern itself with defining what is confidential, but rather states that a lawyer shall not reveal information relating to representing a client.

A conflict between the ethics and the privilege rules arises when a client tells something to a lawyer, intending at the time that the lawyer disclose the information to a third party, but then changes her mind and instructs the lawyer not to disclose it. According to the ethics rules, the information is confidential and the lawyer shall not disclose it. However, according to the privilege, the communication is not confidential because the client intended when she made the communication that it would be disclosed to a third party. This very problem is present in the Nona Byington case. There is some evidence that when Cathy Henderson drew the map (if she is the one who drew it) she intended that it be given to law enforcement officials as an aid in their search to find Brandon Baugh. It seems that she then changed her mind, before it was given to the police, and instructed her lawyer not to release it. The privilege rule says the map is not confidential, but the ethics rules say it is confidential and Henderson’s lawyer shall not reveal it to any third party.

Comment 5 of the ABA rule says that the privilege applies in judicial and other proceedings in which the lawyer may be required to produce evidence concerning a client, while the ethics/confidentiality rule applies in situations other than those where evidence is sought from the lawyer by compulsion of law. The comment does not state whether it is talking about a criminal or civil context. If it refers to criminal cases, it would mean in the Byington case that, since the police were using a legal proceeding to compel Byington to release the map, that the privilege rule applies to the situation rather than the ethics rule. This seems like a strange outcome from applying the ABA rules, however, because it would mean that attorney-client confidentiality should yield to the prosecutor every time the prosecutor wants to compel the lawyer to reveal information. Therefore I presume that Comment 5 is referring to discovery in civil cases and does not apply to criminal cases.

Also of concern is the “furtherance of crime” exception to the privilege and the ethics rules. The privilege states that there is no privilege if the lawyer’s services were obtained to enable anyone to commit what the client knows is a crime. The Texas ethics rule says that a lawyer shall reveal confidential information when the lawyer believes the client is likely to commit a criminal act resulting in death or substantial bodily harm to someone. The ABA rule says a lawyer may reveal information in such a situation. First, it seems clear to me that Henderson did not obtain a lawyer’s services to enable her to commit a crime. Even if there is a crime of concealing a homicide victim, and I do not think there is such a crime, Henderson’s goal in obtaining legal counsel was not to help her conceal the victim. So there is no basis under the furtherance of crime exception to the privilege to compel Byington to release the maps. Second, any crime that would result in death or bodily harm had already been committed by the time Henderson obtained legal counsel, so the ethics rules also do not require that Byington release the maps.

There was always the chance that the baby was still alive, in which case the kidnapping and possibly some other crime would have been ongoing. Even in that case, though, the furtherance of crime exception to the privilege would not apply because Henderson did not obtain counsel to enable her to commit or to aid her in committing those crimes. The ethics rules also would not require that Byington reveal the maps because Henderson was not at all likely to commit any further criminal act, since she was in custody. It is possible that the baby could have been alive and been in danger from some other person. The ethics rules say nothing about revealing confidential client information when the lawyer believes a third party is likely to commit a criminal act resulting in death or substantial bodily harm. That is yet another serious ethical question..