In the 1993 film The Firm, attorney Mitchell McDeere (played by Tom Cruise) must confront Joey Morolto (played by Paul Sorvino), the head of the Morolto crime family and a top client of Bendini, Lambert & Locke, the law firm that employed McDeere. McDeere discovered that the Firm systematically overbilled clients, including the Morolto family, and McDeere decided to use the wire fraud angle to shut down the Firm, rather than expose client activities that would risk loss of life to himself. To do so, McDeere needed permission from the Morolto family to disclose the Firm’s invoices to the government.
In making the request-to-disclose to Morolto, McDeere discloses that he is aware of all attorney-client matters relative to the Firm’s representation of the Morolto family – “right down to the penny, pound, franc, and deutschmark; I know everything you know, as I should as your attorney.” Obviously concerned about what else may be disclosed to the government, McDeere is asked whether such disclosure of invoices would in any way waive the client’s rights to full and complete confidentiality to any other area of the attorney-client relationship. Mr. McDeere responds:
I’m your lawyer, gentlemen. Whether I like it or not, I can’t talk to the government about you even when I am no longer your lawyer. That would be breaking my word; my oath. . . . Whatever I know, wherever I go, I am bound by the attorney-client privilege. I am very much like; I would say I am exactly like a ship carrying a cargo that will never reach any port, and as long as I am alive, that ship will always be at sea[.]
Texas Law – the Attorney-Client Privilege
Confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Recognized as “the oldest of the privileges for confidential communications known to the common law,” the attorney-client privilege promotes free discourse between attorney and client, which advances the effective administration of justice. But a strict rule of confidentiality may also suppress relevant evidence. For that reason, “[c]ourts balance this conflict between the desire for openness and the need for confidentiality in attorney client relations by restricting the scope of the attorney-client privilege.” The privilege belongs to the client and must be invoked on its behalf.
In re XL Specialty Insurance, 373 S.W.3d 46, 49 (Tex. 2012).
Texas Rule of Evidence 503(b) provides the framework for the Rules of Privilege:
- General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:
(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;
(B) between the client’s lawyer and the lawyer’s representative;
(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action;
(D) between the client’s representatives or between the client and the client’s representative; or
(E) among lawyers and their representatives representing the same client.
- Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.
The Rules of Privilege have varying applications, as indicated in each of the five subsections of Rule 503(b)(1). For example, the privilege set forth in subsection (C) does not exist just for co-defendants. That subsection has often been called the “joint defense,” “joint representation,” “common interest,” “allied defense,” or “allied litigant” rule, depending on the circumstances.
The attorney-client privilege is supplemented in litigation matters by the work-product privilege, which protects materials prepared in anticipation of litigation or for trial by a party or its representatives and others similarly situated. Under Texas law, work product comprises:
- material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
- a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
See Tex. R. Civ. P. 192.5.
In all circumstances, extreme care should be taken when communicating about a sensitive legal matter, whether or not litigation is anticipated or in play. Even if a communicator believes a communication will never be subject to disclosure due to the attorney-client or work-product privilege, the privilege is “held” by a client, and communications may easily fall out of the cocoon of privilege if the matter is disclosed to someone not permitted to nest in the communication cocoon. In that event, the communication may be subject to disclosure in litigation or other arena involving legal compulsion of evidence.
Lawyer involvement is key in any sensitive legal communication. (That is not a plea for more communications to come my way; I have plenty to tend to, thank you). And, as my high school football coach, Coach Karl McCormick (the great Coach Mac), repeatedly told me and my teammates: Loose Lips Sink Ships.
Applied to Mitch McDeere’s soliloquy from The Firm, loose lips sink ships, even those without a port.
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