New York City? Get a Rope.

Here is a sample question from an exam I’m preparing to take on Texas criminal law. The question was provided by the authors of the exam:

In a jury trial the assistant district attorney calls the defense attorney to the stand to attempt to establish that the defendant visited the attorney at a certain time and location in order to demonstrate that the defendant was in town on the day of offense. The defense attorney:

a. May refuse to answer the questions because of attorney client privilege

b. Cannot be forced to testify

c. Can be forced to testify, but he cannot be questioned about the physical characteristics of the client during that visit, e.g. complexion, demeanor, and dress.

d. Can be forced to testify regarding physical characteristics of the client during that visit including the physical characteristics of the client such as complexion, demeanor, and dress

e. a and b 

This question invokes the “special rule of privilege” in Texas Rule of Evidence 503(b)(2):

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. 

Where the defendant was, and his physical characteristics, are “facts that came to the lawyer’s knowledge by reason of the attorney-client relationship.” A court might order the lawyer to answer, and the lawyer might find herself in need of the strike force, but the rule of privilege is clear, and the lawyer would be violating the disciplinary rules by answering the prosecution’s questions without a court order. Not only may the lawyer refuse to answer the questions, but she must. Answer (a) is clearly correct; (b) is arguably correct as well, which would make (e) the proper answer.

That’s not the answer that the writers of the exam want, though. Here’s their answer:

d. United States v. Kendrick. 408 F. Supp. 1169 (S.D.N.Y. 1976).

There is so much wrong with that.

First, U.S. v. Kendrick says no such thing. The case isn’t about “the physical characteristics” of a client during his visit to a lawyer. It’s not even about a client visiting a lawyer. It is, rather, about a client telling a lawyer his address and the lawyer trying to protect that information based on privilege.

Second, the lawyer in U.S. v. Kendrick wins that battle: he cannot be compelled to reveal his client’s location.

Third, U.S. v. Kendrick is not decided under Texas law. The court cites Wigmore on Evidence for its definition of privilege:

The scope of the privilege, as set forth by Wigmore, has been adopted by this Circuit as follows: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” Wigmore, § 2292.

Texas’s special rule of privilege is not recognized by Wigmore, and was not at issue in Kendrick. The answer to the question would be much different under Texas law (whether it is (a) or (e) might depend on our definition of “cannot” and the intestinal fortitude of the lawyer—is she willing to be held in contempt for the sake of her client’s privilege?).

I’m about to take an exam, the authors of which apparently have no idea what they’re doing. Should this worry me?

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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