Summary
holding that attorney-client privilege applied to communications between attorney, who also acted "as a negotiator," and his client; rejecting argument that privilege never attached because attorney acted "only as a negotiator" and stating that "while [the attorney] may well have acted as a negotiator ..., he also acted as a lawyer" and that "[w]hen a lawyer acts in dual roles, the attorney-client privilege attaches"
Summary of this case from In re Rescue Concepts, Inc.Opinion
No. 05-03-00516-CV.
Opinion issued May 5, 2003.
Original Proceeding from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 1-02-442.
Writ of Mandamus Granted, in part, and Denied, in part.
Before Justices WHITTINGTON, O'NEILL, and LANG.
MEMORANDUM OPINION
Relator contends the trial judge erred in compelling production of certain documents. We grant relator's petition, in part, and deny it, in part.
PROCEDURAL AND FACTUAL CONTEXT
The City of Heath sued the City of Dallas requesting a declaratory judgment enforcing a provision in a 1974 agreement between Heath and Dallas. Dallas filed a counterclaim seeking declaratory relief that the provision is void and unenforceable.
During discovery, Heath sent requests for production to Dallas. Dallas objected to some of the requests on the grounds of the attorney-client and/or work product privileges and filed a privilege log. After briefing and argument, Dallas submitted the documents in question to the trial judge for in camera inspection. After in camera inspection, the trial judge signed an order finding the attorney-client privilege attached to all but specifically enumerated documents some of which he identified by placing a mark on the log provided by Dallas. The trial judge identified some of the privileged documents by marking a "P" in the box next to the document description. As to some of the other documents which the trial judge found not to be privileged, he marked "NP" in the box next to the document description. As to five documents, the trial judge did not mark on the log but identified them in the order by number and whether they were privileged or not relying on the same reasons given for the rest of the documents.
The trial court's order states, "[w]ith respect to the documents for which the Court made a handwritten ruling `NP,' Dallas has failed to carry its burden of proof. Dallas's arguments and supporting evidence are insufficient legally and factually to support the conclusion that the identified documents are in fact protected by either the attorney-client privilege or the work product doctrine." As to the five documents listed separately, the trial judge found only document 15/4 was not privileged. The documents reviewed in camera which were determined by the trial court not to be protected by the attorney-client privilege have been provided to this Court for review.
In its petition, Dallas argues the trial judge abused his discretion by ordering production of documents protected by the attorney-client privilege. Dallas did not claim the work product privilege as to any of the documents at issue in this original proceeding. Accordingly, we address only the applicability of the attorney-client privilege.
APPLICABLE LAW
The attorney-client privilege protects information from disclosure if it was a confidential communication between a client and his attorney for the rendition of legal services to the client. Tex.R.Evid. 503(b)(1). If a party asserts the information is protected from disclosure by a privilege, it is that party's burden to make a prima facie showing of the privilege. Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. 1996) (orig. proceeding). To do this, the resisting party must plead the specific privilege, produce evidence to support it by affidavit or testimony, and if the trial court determines it is necessary, produce the information for in camera inspection. Marathon Oil Co. v. Moye, 893 S.W.2d 585, 589 (Tex.App.-Dallas 1994, orig. proceeding). The party seeking the information bears the burden to show the privilege asserted does not apply or has been waived. In re Valero Energy Corp., 973 S.W.2d 453 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding). If waiver is asserted, the party resisting discovery must show no waiver has occurred. Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644 (Tex. 1985) (orig. proceeding) (interpreting evidence rule 511).
Usually in an original proceeding, we must determine if there is an adequate remedy at law and if the trial court clearly abused its discretion. Walker v. Packer, 827 S.W.2d 832, 839-44 (Tex. 1992) (orig. proceeding). When we are presented with a question of whether a trial court correctly decided if documents are to be withheld or produced based upon the attorney client privilege, we need not decide whether there is an adequate remedy at law. As a matter of law, there is no adequate remedy at law from a decision denying a privilege. Id. The only question we address is whether the trial court clearly abused its discretion by failing to properly apply the applicable legal principles. Id. In order to evaluate the trial court's ruling we review the record and the documents in issue.
APPLICATION OF LAW TO FACTS
In this case, the only holding the trial judge made in his order is that the enumerated twenty- two documents are not privileged. Dallas asserts the attorney-client privilege as to documents spanning the time period from the early 1970s when the subject agreement was negotiated up to recent dates. Among the documents Dallas claims are protected are documents involving Ted McMaster, a Dallas assistant city attorney in the 1970s.
Heath raised two issues at the trial court and before us which it argues defeat Dallas's claim of privilege. First, it argues that the attorney-client privilege never attached to McMaster's documents since McMaster did not act as a lawyer in the negotiations, only as a negotiator. Of course, Dallas denies the Heath claims saying that McMaster acted as a lawyer and negotiator, so the privilege attaches to matters involving his efforts. Dallas filed affidavits asserting McMaster performed duties as a lawyer on behalf of Dallas with respect to the matters at issue with Heath. Dallas also submitted its original 1907 city charter and the current city charter which states that the city attorney, is to "pass upon" all contracts for the city. Heath offered evidence by the deposition testimony of former Dallas employee, Jerry Wimpee. Wimpee testified that he, a non-lawyer, and McMaster were the negotiating team for Dallas. Heath argues this testimony proves McMaster acted solely as negotiator, not as an attorney, for Dallas. However, in his testimony Wimpee did not say that McMaster did not also act as a lawyer for Dallas.
Heath cites us the case of Harlandale Independent School District v. Cornyn, 25 S.W.3d 328 (Tex.App.-Austin 2000, pet. denied), in support of its argument that since McMaster acted as a negotiator, no attorney-client privilege attaches to his work. Harlandale discusses the issue of whether the attorney-client privilege attaches to one who is a lawyer, but "employed in a non-legal capacity." Harlandale, 25 S.W.3d at 332. The record before us reflects that while McMaster may well have acted as a negotiator with Heath, he also acted as a lawyer for Dallas. When a lawyer acts in dual roles, the attorney-client privilege attaches. Id. at 33-336; Tex Disciplinary R. Prof'l Conduct preamble ¶¶ 2 and 13, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art X, § 9). We conclude Heath did not rebut the evidence that the attorney-client privilege attached to the documents due to McMaster's employment as an attorney for Dallas.
Secondly, Health claimed that since Dallas has sought affirmative relief in this case by counter claim, under the "offensive use doctrine," it waived any attorney-client privilege. The offensive use waiver applies under certain circumstances when a party seeks affirmative relief. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993). However, the relief sought by Dallas is a counterclaim for declaratory relief as to the effect of the agreement with Heath and an injunction to prohibit enforcement of the agreement. The Texas supreme court has held that this type of relief is not sufficient to invoke the offensive use waiver. Id. at 164.
Since the court made no findings other than that Dallas did not carry its burden to show the twenty-two documents were "protected by" a privilege, we cannot determine whether or not the trial court found that the documents simply were not privileged as a general matter, that there was no attorney-client privilege because of McMaster's status, or that any privilege was waived by offensive use. However, we have determined that as a matter of law, Heath has not rebutted McMaster's status as legal counsel for Dallas or that the offensive use doctrine effects a waiver. Hence, those grounds of opposition will not support the trial judge's rulings.
If the trial judge's rulings were based upon a finding that the attorney-client privilege did not attach to the twenty-two documents as a general matter and without regard to the defenses raised by Heath, then, based upon our review of this record and the twenty-two documents, the trial judge clearly abused his discretion as to his ruling that twenty-one of the twenty-two documents were not protected by the attorney-client privilege. We hold that twenty of the twenty-one documents listed in the log which were marked by the court with an "NP" are indeed protected from disclosure by the attorney-client privilege. The only document listed in the log which we conclude is not privileged is: 14/1, 12/03/98 from Dennis T. Cave to unknown city employees, listed on page nine of the log. We also conclude the trial judge abused his discretion in ruling that document 15/4, listed in paragraph three on page two of the order, is not privileged. We conclude that document 15/4 is protected from disclosure by the attorney-client privilege.
CONCLUSION
We deny the petition as to document 14/1 listed on page nine of the log. We grant the petition as to the other twenty documents listed in the log which are marked "NP"and as to document 15/4 listed as being "not privileged" in the third paragraph of page two of the order. We order the trial court to vacate its order of March 20, 2002 in compliance with this opinion.