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Attorney Client Privilege Exceptions:

Clients regularly wonder if they will be able to review the evidence in their case. They are often surprised to learn that lawyers cannot always share the evidence with them. The reason? Sometimes, it’s prohibited. Read on to learn more.

A lawyers’ management of cases is governed in Texas by a certain set of rules of professional responsibility, as well as applicable statutes such as Sec. 39.14 of the Code of Criminal Procedure. The Texas Disciplinary Rules of Professional Conduct outline specific standards of ethical responsibility to which lawyers must adhere when interacting with their clients and the court; lawyers who fail to abide by the minimum standards of conduct presented are subject to disciplinary action. Within these prescribed standards are details about the confidentiality of information, including both privileged and non-privileged client information. Lawyers must be legally authorized to reveal information, outside of that which is free for review due to the process of discovery.

Discovery is the legal process that allows lawyers to request information that is related to the lawsuit from one another – in a criminal context, this means the defense attorney can request evidence from the prosecuting attorney’s office. The discovery process in criminal cases is governed primarily by the Texas Code of Criminal Procedure—the law that entitles the defense attorney to any evidence related to the criminal matter that is not privileged and/or considered attorney work product—unless otherwise restricted by statute (i.e. certain evidence in child sex cases). Discovery rules promulgated by Art. 39.14 were written to allow for open access to information that goes beyond what used to be “an open file policy.” The law allows for clients to review the evidence in the presence of his or her attorney; no copies are permitted to be given or otherwise shared with clients. They are meant to ensure that clients are informed of the evidence in their cases. 

If formal charges are filed, the accused is usually entitled to the evidence in the possession of the State (usually the District Attorney’s and/or County Attorney’s Office). But the discovery process is usually ongoing, sometimes even after a trial has begun and concluded. What kind of information is accessible by the accused? A police report is a common example of evidence provided during discovery. Other forms of discovery might include recordings of police interviews (with victims, witnesses, etc.); photographs of things/people related to the alleged crime; and other relevant records.  

If you or a loved one needs help to understand the process of discovery and client access to evidence, it is advisable to consult with a competent and experienced attorney. Jarvis, Garcia, & Erskine Law, located in Austin, Texas, is a knowledgeable team of attorneys who can assist you at any time. Reach out to Jarvis, Garcia, & Erskine Law online or by phone at 512-359-3030 for a consultation, and for the personal attention and consideration that you deserve.