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St. Mary's Law Journal

Abstract

The attorney-corporate client privilege should be regarded as encompassing only communications made to the corporation’s counsel by employees in the scope of their employment. The Supreme Court of Texas and the Texas Court of Criminal Appeals ordered the merger of the Civil and Criminal Rules of Evidence. The merger became effective on March 1, 1998 and is now known as the Texas Rules of Evidence. Although the civil and criminal rules often mirror each other, one monumental change is in the new version of Rule 503. This new version significantly alters the analysis used in a corporate context and determines if there are privileged communications between the attorney and the client’s representative. Texas courts made the switch from the “control group” test to the “subject matter” test, which almost mirrors the version used in federal courts. Under the former Texas rule, the attorney-client privilege applied only to communications between the client's counsel and representatives within the client’s “control group.” This control group could be anyone able to make corporate decisions based on the attorney’s advice. Under this analysis, the attorney-client privilege rarely applied to anyone below the top level of the corporation. The new subject matter test examines the communication’s contents rather than the corporate position of the representative responsible for the communication and is much more undefined when determining the scope of employment. Successful use of this test should begin with identifying employers and their employees. Then the employee could personify the corporation or communicate on matters relating to his specific duties to invoke the attorney-client privilege. Unfortunately, issues with the current understanding of the subject matter test will continue to arise until a dispute arises to clarify the rule.

Publisher

St. Mary's University School of Law

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