The Texas Court of Criminal Appeals has defused a heated debate that has raged in blogs and e-mails to CCA judges over a proposal to eliminate a special rule of privilege in criminal cases. CCA Judge Cathy Cochran says the state’s highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine.
Rule 503(b(2) provides: “In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.”
That language is derived from former Code of Criminal Procedure Article 38.10, which the Texas Legislature repealed as to criminal cases, effective Sept. 1, 1986, says Steven Goode, a University of Texas School of Law professor and member of the CCA’s Rules Advisory Panel that recommended abolishing Rule 503(b)(2).
Cochran says the CCA judges thought they would be “tidying” the Rules of Evidence if they eliminated that rule.
“We’re not out to upset anyone or ruffle any feathers,” Cochran says.
But leaders of the Texas Criminal Defense Lawyers Association (TCDLA) were upset when they learned that the CCA was seeking to do away with a rule the language of which has been around in some form since 1856.
Austin criminal-defense solo Keith Hampton, TCDLA’s treasurer, says the association has taken the position that the court would be abridging defendants’ substantive rights if it does away with Rule 503(b)(2). Hampton says TCDLA fears that prosecutors will try to subpoena criminal-defense attorneys to learn information about their clients if the CCA eliminates the rule.
“Overwhelmingly, our position is, if it ain’t broken, don’t fix it,” Hampton says.
But Goode says, “My position is it is broken, in the sense it creates confusion.” Goode, a co-author of “Texas Practice, Guide to the Texas Rules of Evidence,” says he cannot think of a single case in which the CCA has said that Rule 503(b)(2) or its statutory predecessor, Article 38.10, means what it says.
Goode proposed in an Oct. 22, 2007, memorandum to members of the CCA Rules Advisory Panel that they recommend the deletion of Rule 503(b)(2).
San Antonio criminal-defense solo Jay Brandon, another member of the advisory panel, says the nine-member panel voted unanimously to support Goode’s proposal to eliminate the rule. “The problem is, no one knows what this [rule] says,” Brandon contends.
Cochran, who also serves on the advisory panel, says the panel made its recommendation to the CCA that the rule be abolished in November 2007. In a March 4 administrative order, signed by all nine judges, the CCA amended the evidence rules, effective Sept. 1, eliminating Rule 503(b)(2)’s language. The CCA ordered that the proposed rule changes be published in the Texas Bar Journal and set a period for comment, which was to end June 30.
The rule changes appeared in the April issue of the Texas Bar Journal. According to the comment published with the proposed changes, the deletion of the rule “is not intended to restrict the scope of either the work-product doctrine or the lawyer’s professional duty not to reveal the confidential information of a client.”
TCDLA president Craig Jett, of counsel at Burleson, Pate & Gibson in Dallas, says he urged the Rules Advisory Panel at a May 29 meeting in Austin to keep the rule. “It’s a very clear statement in criminal cases that any information we learn in representation is private,” Jett says.
Jett says that during his meeting with the advisory panel, he offered to craft an attorney work-product rule with Hampton and Richard A. Anderson of Dallas, federal public defender for the Northern District of Texas.
On June 6, Kaufman criminal-defense solo Robert Guest sounded the alarm about the CCA’s plans to eliminate Rule 503(b)(2) on his blog, www.dallascriminaldefenselawyer.com. “This special rule has protected Texans since 1856. There is no reason to change it,” Guest wrote.
In his posting Guest provided the e-mail addresses of six CCA judges and urged his readers to send comments on the proposed rule change.
TDCLA also e-mailed a message written by Hampton to all members of the association, urging the criminal-defense bar to e-mail or write the CCA judges and tell them not to change the rule. “Tell them to leave it alone,” Hampton writes in the message, which also provides the e-mail addresses of six CCA judges.
Cochran estimates that she received as many as 50 e-mails from opponents of the proposal to eliminate Rule 503(b)(2). “Nobody had a clue that this would be controversial,” she says.
But Guest says, “Deleting 503(b)(2) is a solution looking for a problem. It will further erode what little protections defendants have in Texas.”
In an e-mail to Texas Lawyer, Guest describes a hypothetical situation in which a client who is innocent of a murder charge finds the murder weapon and gives it to his attorney. Guest contends in the e-mail that Rule 503(b)(2) protects the client from having his lawyer disclose who gave the lawyer that weapon.
But Goode says Rule 503(b)(2) does not provide any additional protection in the hypothetical that Guest posed. If, by possessing the gun, the lawyer violates the tampering provision in Texas Penal Code §37.09(a), the crime/fraud exception found in Rule 503(d) applies, he says.
“If the lawyer doesn’t violate the tampering provision, the client’s nonverbal act of giving the lawyer the gun is a protected confidential communication under traditional attorney-client privilege doctrine, and Rule 503(b)(2) doesn’t add anything to this,” Goode says.
Goode says Manning v. State (1989), decided by Dallas’ 5th Court of Appeals, was the first case in which a court considered the meaning of the language in Article 38.10, which became Rule 503(b)(2). In that case, the 5th Court rejected the defendant’s claim that the attorney-client privilege barred his former attorney from testifying about the defendant’s competency during a previous trial. The 5th Court concluded that Article 38.10 shielded only communications between lawyer and client that were intended to be confidential.
The CCA affirmed the defendant’s conviction in Manning and adopted the 5th Court’s analysis of the predecessor of Rule 503(b)(2), Goode says. The CCA also declined to interpret the rule literally in 1997′s Henderson v. State, he says.
There is nothing like Rule 503(b)(2) in any other jurisdiction in the country, Goode says, adding that he believes the criminal-defense bar in Texas views the rule as “a security blanket.”
Anderson, the federal public defender in Dallas, says he believes there is “sympathetic magic” in the rule’s language that persuades prosecutors not to try to penetrate defendants’ privilege.
“A prosecutor might look at the rule and say, ‘Even though what I’m looking for is not communication, we have this rule here,’ ” Anderson says.
Hampton remains opposed to eliminating the current rule, but he applauds the CCA’s decision to give the interested parties a chance to draft new language. If in the end, what comes out is a clearly articulated statement protecting work product, Hampton says, “that’s all to the good.”