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Hold Everything In Confidence: Confidential vs Privileged Information

Texas attorneys generally must keep all information relating to a client or furnished by the client confidential. This duty far outstrips what most people think about as “confidential”—it includes the identity of the client, the fact that the attorney and the client communicated, even information that is publicly available, such as whether the client is named in a publicly-filed lawsuit.

Confidential information includes both privileged and unprivileged client information. Information is “privileged” when some rule or law protects that information from disclosure. The privileges under Texas law regarding what persons can exclude from disclosure in a lawsuit can be found in Article V of the Texas Rules of Evidence.

Most of the enumerated privileges in Article V should sound familiar: the lawyer-client privilege (Rule 503); Trade secrets privilege (Rule 507); and the Spousal privileges (Rule 504). These privileges serve specific purposes—for example, the purpose of the attorney-client privilege is to foster the client’s confidence in the attorney and to encourage free communications between them. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.

The number of statutory or case-law exceptions that may apply to a privilege or duty of confidentiality is overwhelming. In litigation practice, my default rule is fairly straightforward: hold everything in confidence.

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