St. Mary's Law Journal


Fred A. Simpson


The following discussion in this Article fills the gaps in the substantive rules surrounding the attorney work product doctrine and the attorney-client privilege, thereby encouraging practitioners to utilize these tools more freely. Initially, the attorney-client privilege contemplated application only to individuals. As the rule developed in the United States, however, the scope of the privilege broadened until it included corporations. Since 1982, Texas has provided for the attorney-client privilege in Texas Rule of Civil Evidence 503.149. Notably, the Rule defined client in such a way as to include a corporation. Unlike the attorney-client privilege, the work product doctrine developed much more recently in legal history. Few Texas cases exist on the attorney work product doctrine compared to the extensive volume of law reported from the many federal district and circuit courts. The State of Texas recently made several reforms to both the rules of civil procedure and criminal evidence, including merging the two into one set of rules. Further, Texas Rule of Civil Evidence 503, the attorney-client privilege, adopted the subject matter test over the control group test, thereby overruling the Texas Supreme Court's holding in National Tank Co. v. Brotherton. In Texas, the attorney-client privilege has progressed in the corporate field from applying only to communications made by those parties in control, to those employees' communications involved in the subject matter of their duties. Likewise, work product in Texas has also progressed. The state reclassified work product from an exemption to a privilege, statutorily defined work product, and provided a higher degree of protection for core work product in comparison to ordinary or other work product. Now that the fog has cleared, Texas corporations may act within clear guidelines to protect their privileged communications.


St. Mary's University School of Law