One of the most important protections in any legal case is attorney–client privilege. It allows clients to speak openly with their lawyer without fear that their words will later be used against them.

Despite how fundamental this rule is, many Texans misunderstand its limits—especially in business disputes, divorce cases, probate matters, and litigation involving electronic communications.

After reviewing your published topics list , this subject does not appear to have been previously covered and fits squarely within your core practice areas.

This article explains how attorney–client privilege works under Texas law, when it applies, and when it can be lost.

What Is Attorney–Client Privilege?

In Texas, attorney–client privilege is governed primarily by Texas Rule of Evidence 503.

Under Rule 503(b):

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services.”

In plain terms, this means:

If you speak privately with your lawyer to get legal advice, that communication is generally protected from disclosure.

This protection applies in:

• Civil lawsuits
• Divorce and family law cases
• Probate disputes
• Business litigation
• Employment matters
• Tax and financial controversies

What Communications Are Protected?

For attorney–client privilege to apply, four elements must usually be present:

1. A Client–Lawyer Relationship

The privilege applies when:

• You are an existing client, or
• You are consulting a lawyer for possible representation

You do not need to have signed a contract yet for the privilege to apply.

2. A Communication

The privilege covers:

• Emails
• Text messages
• Letters
• Phone calls
• In-person conversations
• Legal intake forms
• Strategy discussions

It does not protect underlying facts—only the communication itself.

3. Confidentiality

Rule 503(a)(5) defines a “confidential communication” as one:

“Not intended to be disclosed to third persons.”

If others are present, the privilege may be lost.

Common problems include:

• Talking to your lawyer in front of friends or relatives
• CC’ing business partners on legal emails
• Copying non-essential employees
• Forwarding legal advice to others

Once confidentiality is broken, the privilege may be waived.

4. Legal Advice Purpose

The communication must be for obtaining legal services.

Casual conversations, business planning, or personal discussions unrelated to legal advice are not protected.

Who Is Covered by the Privilege?

Individual Clients

For individuals, the privilege belongs to the client.

Only the client can waive it.

Business Clients

For companies, Rule 503 extends privilege to communications between:

• Corporate officers
• Employees
• Representatives
• Company lawyers

When the communication relates to legal advice for the business.

This is especially important in:

• LLC disputes
• Partnership conflicts
• Employment litigation
• Regulatory matters

Common Exceptions to Attorney–Client Privilege

Not all lawyer communications are protected. Texas law recognizes several important exceptions.

1. Crime–Fraud Exception

Rule 503(d)(1) removes protection if:

“The services of the lawyer were sought to enable or aid the commission of a crime or fraud.”

If a client seeks legal help to commit fraud, hide assets, evade creditors, or deceive courts, privilege does not apply.

This frequently arises in:

• Divorce concealment cases
• Fraudulent transfer disputes
• Asset protection schemes
• Tax evasion matters

2. Disputes Between Lawyer and Client

Under Rule 503(d)(3), privilege does not apply in disputes such as:

• Fee lawsuits
• Malpractice claims
• Disciplinary proceedings

A lawyer may disclose necessary communications to defend themselves.

3. Joint Clients

When multiple clients hire the same lawyer together, Rule 503(d)(5) provides that:

Privilege does not apply between those clients if they later dispute each other.

This commonly occurs in:

• Business breakups
• Partnership dissolutions
• Joint estate planning
• Family business disputes

4. Estate and Probate Disputes

Rule 503(d)(2) allows disclosure in certain probate matters when:

• A deceased client’s intent is in question
• Will contests are involved
• Heirship disputes arise

Courts may permit limited disclosure to determine the decedent’s wishes.

How Privilege Is Commonly Waived in Texas Cases

Many clients accidentally destroy their own protections.

Frequent Waiver Mistakes

• Forwarding attorney emails to others
• Posting legal advice online
• Using work email systems
• Allowing third parties into meetings
• Discussing strategy on recorded lines
• Mixing business and legal advice

Once waived, the protection may be permanently lost.

Attorney–Client Privilege vs. Attorney Work Product

Texas also recognizes “work product” protection under Texas Rule of Civil Procedure 192.5.

Work product protects:

• Legal research
• Strategy notes
• Trial preparation materials
• Attorney impressions

Even if privilege fails, work product may still apply.

However, courts may order disclosure in certain circumstances.

Can Courts Force Disclosure?

Yes—under limited circumstances.

Texas courts may compel disclosure when:

• An exception applies
• Privilege is waived
• Crime–fraud is shown
• Disclosure is required by statute

When privilege is disputed, judges often conduct in camera review, meaning they privately review the materials before ruling.

Why This Matters in Real Cases

Attorney–client privilege issues regularly arise in:

Divorce Cases

• Hidden assets
• Business valuations
• Affair-related communications

Business Litigation

• Internal emails
• Compliance advice
• Regulatory discussions

Probate Matters

• Will drafting
• Capacity disputes
• Undue influence claims

Employment Disputes

• HR investigations
• Termination reviews
• Discrimination defenses

Losing privilege can seriously damage a case.

Practical Tips for Protecting Your Privilege

To preserve your rights:

✔ Communicate only with necessary parties
✔ Use private email accounts
✔ Avoid forwarding legal advice
✔ Keep meetings confidential
✔ Separate business and legal discussions
✔ Ask before sharing anything

When in doubt, assume disclosure could harm you.

When You Should Consult a Lawyer

You should seek legal advice immediately if:

• Opposing counsel demands your communications
• A subpoena requests lawyer emails
• Your privilege is challenged
• You suspect waiver issues
• You are involved in multi-party representation

Early guidance can often prevent permanent damage.

Final Thoughts

Attorney–client privilege is one of the strongest protections in Texas law—but it is not automatic and not unlimited.

Understanding how it works can mean the difference between winning and losing a case.

If you have questions about confidentiality, privilege disputes, or protecting sensitive legal communications, an experienced Texas attorney can help you navigate these issues safely.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.