Attorney-Client Relationship and
Communications
§ 2.1Communications about Legal Consequences
One of the foremost problems in the area of family law is the attorney’s failure to completely inform his client of all legal consequences. The client should be fully informed of all legal consequences, and, if in the lawyer’s judgment a proposed settlement would be unwise, it is the lawyer’s ethical duty to so inform the client.
Rule 1.03 of the Texas Disciplinary Rules of Professional Conduct addresses the matter of communication of information from the lawyer to the client. The rule provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information and shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Tex. Disciplinary Rules Prof’l Conduct R. 1.03.
Further guidance concerns the adequacy of communication between lawyer and client under varying circumstances. Tex. Disciplinary Rules Prof’l Conduct R. 1.03 cmt. Comment 5 concerns communication with a client with diminished capacity, a topic discussed in section 2.11 below.
The initial consultation between the lawyer and the client may or may not lead to ongoing representation. If a continuing attorney-client relationship is formed, an agreement for legal services should be signed. Without an agreement, there can be uncertainty and misunderstanding.
A fee agreement for the initial consultation can eliminate uncertainty by clearly defining the nature of the first meeting and stating what conditions must be satisfied if there will be a continuing attorney-client relationship. The agreement should require a fee for the initial conference and clearly state that a separate written agreement will be required as evidence of the subsequent employment.
If there will not be a continued relationship, a nonengagement letter is advisable to emphasize that the lawyer will not accept the employment. In a Texas Lawyers’ Insurance Exchange case, an attorney tentatively accepted a personal injury case. After evaluating the case further, the attorney returned the file to the client and told the client he would not accept the case. The client sued the attorney after the statute of limitations on the personal injury claim ran, and, because of the absence of a nonengagement letter, a weak personal injury claim resulted in a substantial loss to the insurer for negligence on the part of this attorney. See 46 Tex. B.J. 998 (1983); see also the discussion of grievance and malpractice problems in chapter 1 of this manual.
In Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964), the court noted that, because of the confidential relationship, courts “scrutinize with jealousy” all contracts for compensation made between attorney and client while the relationship exists. “There is a presumption of unfairness or invalidity attaching to the contract, and the burden of showing its fairness and reasonableness is on the attorney.” Archer, 390 S.W.2d at 739. The presumption applies only if the contract for compensation was made while the attorney-client relationship was in existence.
For discussion of the various ethical and practical aspects of setting, contracting for, proving up, and collecting attorney’s fees, see chapter 20 of this manual.
§ 2.4Tax Deduction for Attorney’s Fees
The provisions in effect for tax years before 2018 that allowed deduction of appropriate attorney’s fees in cases in which the attorney has actually given tax advice to the client or fees expended for the production or collection of taxable income (for example, alimony) under 26 U.S.C. § 212(1), (3) have been temporarily suspended.
These and other “miscellaneous deductions” are not allowed for any taxable year beginning after December 31, 2017, and before January 1, 2026. 26 U.S.C. § 67(g), as added by Tax Cuts and Jobs Act, Pub. L. No. 115-97, § 11045, 131 Stat. 2054 (2017).
An attorney-client relationship terminates on the death of the client. However, when property issues remain, the attorney may still act on behalf of the client. Murphy v. Murphy, 21 S.W.3d 797, 798 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (per curiam). There is no reported case regarding whether an attorney may continue acting on behalf of a client in a suit affecting the parent-child relationship.
§ 2.6Limited Representation by Attorney
Unless the representation is terminated, “a lawyer should carry through to conclusion all matters undertaken for a client.” Tex. Disciplinary Rules Prof’l Conduct R. 1.02 cmt. 6. A statement of representation in “family law matters” is ambiguous and could lead to problems concerning the nature of the representation. Any doubts about the scope of representation should be clarified by the lawyer.
A lawyer may limit the scope, objectives, and general methods of the representation if the client consents after consultation. Tex. Disciplinary Rules Prof’l Conduct R. 1.02(b). The employment agreement should carefully state the scope of the attorney’s representation and exclude, in writing, areas of nonrepresentation. For example, the employment agreement for a divorce case might state that the attorney agrees to “represent client in a divorce from spouse and related matters of grounds for divorce, division of property, and conservatorship of children through trial and signing of final judgment. Legal representation does not include title searches of property, defense of claims of creditors, preparation of wills, probate, corporate or partnership matters, tort claims, criminal defense, and appeals.”
A provision in the attorney-client contract that authorizes an attorney to settle a client’s case without the client’s consent violates rule 1.02(a)(1) of the Texas Disciplinary Rules of Professional Conduct, rendering the entire contract voidable at the client’s option. Sanes v. Clark, 25 S.W.3d 800, 805 (Tex. App.—Waco 2000, pet. denied). Similarly, a provision prohibiting settlement without the attorney’s consent violates rule 1.02(a)(2), and the contract is likewise voidable at the client’s option. Lopez v. Maldonado, No. 13-15-00042-CV, 2016 WL 8924108, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 21, 2016, no pet.) (mem. op.).
A party is not entitled to “hybrid representation” by being simultaneously self-represented and represented by an attorney. In re S.V., 599 S.W.3d 25, 44 (Tex. App.—Dallas 2017, pet. denied).
§ 2.7Arbitration Provisions in Employment Contract
Agreements to arbitrate fee disputes between lawyers and clients have been encouraged by bar associations for years. See ABA Model Rules of Arbitration (1995). Comment 19 to rule 1.04 endorses the arbitration of fee disputes and states: “If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.” Tex. Disciplinary Rules Prof’l Conduct R. 1.04 cmt. 19.
The attorney-client employment contract should never contain an agreement to arbitrate malpractice disputes or grievance disputes. Prospectively limiting a lawyer’s liability to a client for malpractice is strictly controlled by rule 1.08(g):
A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.
Tex. Disciplinary Rules Prof’l Conduct R. 1.08(g).
There is a conflict of authority regarding the enforceability of a provision in a legal services contract requiring the arbitration of a malpractice claim. Two cases approve enforcement of arbitration clauses even if they are contained in a legal services contract: Henry v. Gonzalez, 18 S.W.3d 684, 691–92 (Tex. App.—San Antonio 2000, pet. dism’d by agr.), and Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). However, In re Godt, 28 S.W.3d 732, 738–39 (Tex. App.—Corpus Christi–Edinburg 2000, orig. proceeding), holds to the contrary. See also Jean Fleming Powers, Ethical Implications of Attorneys Requiring Clients to Submit Malpractice Claims to ADR, 38 S. Tex. L. Rev. 625 (1997).
When the attorney and client agree to arbitrate and the agreement encompasses the claims asserted, the trial court must compel arbitration and stay litigation pending arbitration. See Tex. Civ. Prac. & Rem. Code § 171.021; Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 305 (Tex. 2006). However, unconscionable contracts, whether relating to arbitration or not, are not enforceable under Texas law. In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008). “The determination that a contract or term is or is not unconscionable is made in light of its setting, purpose, and effect. Relevant factors include weaknesses in the contracting process like those involved in more specific rules as to contractual capacity, fraud, and other invalidating causes; the policy overlaps with rules which render particular bargains or terms unenforceable on grounds of public policy.” In re Poly-America, 262 S.W.3d at 348–49 (quoting Restatement (Second) of Contracts § 208 cmt. a (1979)).
Provisions that one or more specified disputes are excepted from arbitration do not simply make the agreement so one-sided as to be unconscionable. See In re FirstMerit Bank, 52 S.W.3d 749, 757–58 (Tex. 2001) (orig. proceeding). In fact, excluding a claim by a law firm for the recovery of its fees and expenses is expressly allowed. See Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494, 501–02 (Tex. 2015).
The attorney representing the client in a divorce case must obtain information regarding all issues in the case. To properly develop the issues, do the required research, obtain witnesses, hire experts, and prepare the client, the attorney must acquire the information as early in the case as possible.
§ 2.8:2Information Regarding Property
In a divorce case, the court is required to make a just and right division of the estate of the parties. Tex. Fam. Code § 7.001. The estate of the parties includes only community property. See Cameron v. Cameron, 641 S.W.2d 210, 213 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). Moreover, the court may not award the separate property of one spouse to the other spouse. See Eggemeyer, 554 S.W.2d at 140. Thus, it is critical to obtain enough information about each property to present evidence to enable the court to make a just and right division and also to confirm separate property to its owner.
§ 2.8:3Information Regarding Taxes
In ordering the division of the estate of the parties on dissolution, the court may consider whether an asset will be subject to taxation and, if so, when the tax will be required to be paid. Tex. Fam. Code § 7.008. In order to present relevant evidence to the court to make appropriate adjustments for hypothetical taxes, the attorney must obtain data necessary to assist the court in determining tax consequences resulting from the decision to divorce.
Income Taxes: Adjustments for income taxes to be paid on the receipt of retirement benefits and the exercise of stock options is relevant in the valuation of those properties.
Capital Gains Taxes: A gain realized from selling or trading stocks, bonds, real estate, or other investment property may be taxed. The amount of capital gains tax that would be paid in the event of sale could be relevant to determine a just and right division.
§ 2.8:4Social Security and Driver’s License Numbers
Three Texas statutes give direction for handling a person’s Social Security and driver’s license numbers.
The Family Code requires that all final parent-child relationship orders except those under Code chapters 161 (termination) and 162 (adoption) contain the Social Security number and driver’s license number of each party to the suit, including the child, except that the child’s Social Security number or driver’s license number is not required if such a number has not been assigned. See Tex. Fam. Code § 105.006(a)(1).
The Civil Practice and Remedies Code requires that a party’s initial pleadings contain the last three numbers of a party’s Social Security number and driver’s license number. See Tex. Civ. Prac. & Rem. Code § 30.014.
Finally, the Business and Commerce Code states that a person may not require an individual to reveal his or her Social Security number to obtain services unless the person furnishing the services adopts a privacy policy, makes the policy available to the individual, and maintains the confidentiality and security of the number so obtained. Tex. Bus. & Com. Code § 501.052(a). The privacy policy must include how personal information is collected, how and when the information is used, how the information is protected, who has access to the information, and how the information is disposed of. Tex. Bus. & Com. Code § 501.052(b). A violation of subsection (a) may result in a civil penalty of up to $500 for each calendar month during which a violation occurs. Tex. Bus. & Com. Code § 501.053.
COMMENT: See section 6 in the Introduction in volume 1 of this manual (forms) concerning requirements for the protection of this sensitive data in documents that are filed with the court.
§ 2.8:5Requirement to Report Party’s Current Address
In a civil case filed in a district court, county court, statutory county court, or statutory probate court, each party or the party’s attorney must provide the clerk of the court with written notice of the party’s name and current residence or business address, unless the party has not appeared or answered in the case. The notice must be provided when the party files its initial pleading with the court or not later than the seventh day after the date the clerk requests the information. If the party’s address changes during the case, the party or the attorney must provide the clerk written notice of the new address. Failure to provide the notice may be punished by a fine unless the party or the attorney could not reasonably have obtained and provided the information. Tex. Civ. Prac. & Rem. Code § 30.015.
§ 2.8:6Duty to Maintain Confidences and Secrets of Clients
An attorney cannot represent both parties in the same litigation and comply with ethical obligations. See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(a). An attorney has the duty to maintain his clients’ confidences and secrets. See Tex. Disciplinary Rules Prof’l Conduct R. 1.05. The rule is couched in terms of “confidential information,” which includes both “privileged information” and “unprivileged client information.” “Privileged information” is information of a client protected by the attorney-client privilege of Tex. R. Evid. 503 or by the principles of attorney-client privilege governed by Fed. R. Evid. 501. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the attorney during the course of or by reason of the representation of the client.
A lawyer may reveal confidential information under the following conditions:
1.When the lawyer has been expressly authorized to do so in order to carry out the representation.
2.When the client consents after consultation.
3.To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.
4.When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, the Texas Disciplinary Rules of Professional Conduct, or other law.
5.To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
6.To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.
7.When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
8.To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.
9.To secure legal advice about the lawyer’s compliance with the Texas Disciplinary Rules of Professional Conduct.
10.When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.
Tex. Disciplinary Rules Prof’l Conduct R. 1.05(c).
An attorney may reveal unprivileged client information when the attorney is impliedly authorized to do so in order to carry out the representation or when the attorney has reason to believe it is necessary to do so in order to carry out the representation effectively, to defend the attorney or the attorney’s employees or associates against a claim of wrongful conduct, to respond to allegations in any proceeding concerning the attorney’s representation of the client, or to prove the services rendered to a client, or the reasonable value of the services, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. Tex. Disciplinary Rules Prof’l Conduct R. 1.05(d).
If an attorney has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the attorney shall reveal confidential information to the extent revelation of the information reasonably appears necessary to prevent the client from committing the act. Tex. Disciplinary Rules Prof’l Conduct R. 1.05(e).
In all other situations, the attorney’s obligation is to dissuade the client from committing the crime or fraud or to persuade the client to take corrective action. Tex. Disciplinary Rules Prof’l Conduct R. 1.05 cmt. 18. If the threatened crime or fraud is likely to have the less serious result of substantial injury to the financial interests or property of another, the attorney is not required to reveal preventive information but may do so. See Tex. Disciplinary Rules Prof’l Conduct R. 1.05(c)(7), (c)(8).
Comment 14 to rule 1.05 notes the following:
Although preventive action is permitted by paragraphs (c) and (d), failure to take preventive action does not violate those paragraphs. But see paragraphs (e) and (f). Because these rules do not define standards of civil liability of lawyers for professional conduct, paragraphs (c) and (d) do not create a duty on the lawyer to make any disclosure and no civil liability is intended to arise from the failure to make such disclosure.
Tex. Disciplinary Rules Prof’l Conduct R. 1.05 cmt. 14.
The same statement is not made with regard to paragraphs (e) and (f).
An attorney shall also reveal confidential information when required to do so by rules 3.03(a)(2), 3.03(b), and 4.01(b). Tex. Disciplinary Rules Prof’l Conduct R. 1.05(f). Rule 3.03(a)(2) states that an attorney shall not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act. Tex. Disciplinary Rules Prof’l Conduct R. 3.03(a)(2). Rule 3.03(b) states that if an attorney discovers that he has offered material evidence that is false, the attorney shall make a good-faith effort to persuade the client to authorize the attorney to correct or withdraw the evidence. The attorney is obligated to take reasonable remedial measures, including disclosure of the true facts, if the client will not authorize the correction or withdrawal of the false evidence. Tex. Disciplinary Rules Prof’l Conduct R. 3.03(b). Rule 4.01(b) states that an attorney shall not knowingly “fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.” Tex. Disciplinary Rules Prof’l Conduct R. 4.01(b).
Other rules, including rules 1.07, 1.12, 1.16, and 2.02, permit or require a lawyer to disclose information relating to the representation, and other statutory provisions or other law may obligate a lawyer to give information about a client. See Tex. Disciplinary Rules Prof’l Conduct R. 1.05 cmts. 17, 22.
COMMENT: Attorneys are required to report child abuse or neglect. Tex. Fam. Code § 261.101. See section 2.9 below.
§ 2.8:7Health Insurance Portability and Accountability Act (HIPAA)
Regulations under the Health Insurance Portability and Accountability Act (HIPAA), promulgated by the federal health and human services department, extend the data security obligations of health-care providers and insurers to a broad class of businesses that can include lawyers and law firms. Texas businesses must “implement and maintain reasonable procedures, including taking any appropriate corrective action, to protect from unlawful use or disclosure any sensitive personal information collected or maintained by the business in the regular course of business.” Tex. Bus. & Com. Code § 521.052(a). In addition to items such as Social Security numbers, driver’s license numbers, account numbers, birth dates, and the identity of immediate relatives, “sensitive personal information” includes the physical or mental health or condition of the individual, the provision of health care to the individual, and payment for the provision of health care to the individual. Tex. Bus. & Com. Code § 521.002(a)(2)(B). The law also requires notification in the event of a breach of security of computerized data. Such notification is required when sensitive personal data “was, or is reasonably believed to have been, acquired by an unauthorized person.” Tex. Bus. & Com. Code § 521.053(b). Lawyers and law firms could be subject to the Texas Medical Records Privacy Act, chapter 181 of the Texas Health and Safety Code, as a “covered entity” if they merely come “into possession” of protected health information. See Tex. Health & Safety Code § 181.001(b)(2)(B). These rules require planning and implementation of security procedures to protect personal health information as well as actions that must be taken in the event of a breach of security.
§ 2.8:8Interception of Communications
Recording One’s Own Conversations: Either of two individuals having a telephone conversation may record it without violating the Federal Communications Act, 47 U.S.C. § 605. See Rathbun v. United States, 355 U.S. 107 (1957). This general rule has been applied to conversations between spouses. See Kotrla v. Kotrla, 718 S.W.2d 853, 855 (Tex. App.—Corpus Christi–Edinburg 1986, writ ref’d n.r.e.). However, a Texas attorney has been publicly reprimanded for involving a nonattorney in the installation of a device to record telephone conversations of her estranged husband. She also engaged in third-party recordings of telephone conversations without the knowledge or consent of the parties involved in the conversations. It is noted, however, that the telephone calls did not involve any clients. 52 Tex. B.J. 234 (1989).
What issues touch on lawyers’ recording their own conversations with third parties? Texas lawyers are governed by Ethics Committee Opinion 575, which states that undisclosed recordings may be made by a lawyer, but only if the following qualifications are met. First, a lawyer should make an undisclosed recording of a telephone conversation involving a client only if there is a legitimate reason to make the recording in terms of protection of the legitimate interests of the client or of the lawyer. Second, a lawyer should not record a telephone conversation with a client unless the lawyer takes appropriate steps consistent with the requirements to safeguard confidential information that may be included in the recording. Third, in view of the requirement that a lawyer not be involved in the commission of a serious crime, a lawyer should not make an undisclosed recording of a telephone conversation if the conversation proposed to be recorded by the lawyer is subject to other laws (for instance, the laws of another state) that make such a recording a serious criminal offense. Finally, regardless of whether the client is involved in the telephone conversation or has consented to the recording, the lawyer may not record a telephone conversation if making such a recording would be contrary to a representation made by the lawyer to any person. See Tex. Comm. on Prof’l Ethics, Op. 575 (2006) (overruling Comm. on Interpretation of the Canons of Ethics, State Bar of Tex., Op. 392 (1978), and Tex. Comm. on Prof’l Ethics, Op. 514 (1996)).
Recording Conversations to Which One Is Not a Party—Federal Regulations: 18 U.S.C. § 2511(1) precludes the interception of a wire, oral, or electronic communication. “Intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4).
Distinguishing between audiotape and videotape recordings requires a characterization as to a “wire” or “oral” communication. The definitions of the two are quite different:
“[W]ire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception . . . furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.
As a practical matter, the best example of a wire communication is the telephone, so that the statute clearly addresses telephone wiretapping.
“[O]ral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.
When there is no telephone interception, arguably there is no “wire communication” in question. There is therefore a pure constitutional question whether the federal statute has any application to instances involving only videotape recording, because in that instance there has been no transmission of interstate or foreign communications. This constitutional question was noticed by way of footnote in one case:
Even the Simpson court had “no doubts” that Congress has the power to prohibit the interception of telephone communications within the marital home. 490 F.2d at 805 n.6. We think the defendants’ error stems from their confusion between “wire” and “oral” communications; it was only as to the latter that the authors of Title III envisioned any constitutional difficulties, since many “oral” communications lack any interstate nexus. “Wire” communications, on the other hand, are defined in Title III as only those made through the use of “facilities . . . furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.” 18 U.S.C.A. § 2510(1). Since telephone communications are made through the use of such interstate facilities, their interception may be proscribed by Congress, even though they take place entirely intrastate.
Kratz v. Kratz, 477 F. Supp. 463, 475 n.26 (E.D. Pa. 1979).
In Kratz, the parties had filed for divorce and were estranged, although they continued to reside within the marital home. The husband employed a third person to place a wiretap on the telephone within the home, through which he intercepted calls between the wife and her paramour.
The circuit courts that have considered the application of title III to interspousal wiretaps have split on the issue. The Fifth Circuit has made a distinction between the placing of a tapping device on the telephone within the marital home by one of the spouses and the employment of a disinterested third party to place the tap. In Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974), the court found that Congress did not intend to intrude into domestic conflicts normally left to state law when it enacted title III. It found a lack of a positive expression of congressional intent to include purely interspousal wiretaps within the Act’s prohibitions. The court also distinguished electronic surveillance by a third party, such as a private investigator, even if the outsider had been employed by a spouse, because it was a greater offense against a spouse’s privacy than mere personal surveillance by the other spouse. This distinction was later the basis of a decision by the Fifth Circuit in United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974). The Simpson opinion has been criticized for excluding spousal telephone wiretapping:
Justice Brandeis aptly described the “evil” of wiretapping in his dissenting opinion to Olmstead v. United States, 277 U.S. 438, 475–476, 48 S. Ct. 564, 571, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting): “The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him.”
United States v. Jones, 542 F.2d 661, 670 (6th Cir. 1976).
A Seventh Circuit case, however, limited Simpson to its facts, in which both spouses lived in the marital home and no investigator installed the device or monitored the calls. In United States v. Rizzo, 583 F.2d 907, 909–10 (7th Cir. 1978), the court upheld the conviction of an investigator who installed a recording device with the consent of one spouse while both spouses resided in the marital home. The Fourth Circuit has ruled that title III prohibits all wiretapping, including unconsented-to wiretapping of the family telephone while both spouses are residing in the marital home. Pritchard v. Pritchard, 732 F.2d 372 (4th Cir. 1984). The Eighth Circuit has followed suit in Kempf v. Kempf, 868 F.2d 970 (8th Cir. 1989). The Eleventh Circuit has also held that no exception for interspousal wiretapping exists in title III, citing numerous cases so holding. See Glazner v. Glazner, 347 F.3d 1212, 1215–16 (11th Cir. 2003).
One Texas appellate court has determined that the federal wiretap statutes do prohibit one spouse from taping the other spouse’s conversations and that admission of the tapes into evidence was reversible error. Turner v. PV International Corp., 765 S.W.2d 455, 470 (Tex. App.—Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex. 1989). The Texas Supreme Court was careful to note, however, that it was neither approving nor disapproving the appellate court’s ruling on the admissibility of the tape-recorded conversations.
The Second Circuit has inquired into an alleged interception of a communication between a parent and a child. In Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977), the court noted that it was required to consider the extent to which the federal wiretap statutes were applicable to interspousal wiretaps used in preparation for divorce litigation. It also noted that it was a case of first impression in the Second Circuit although the Fifth Circuit had considered the question in Simpson and the Sixth Circuit in Jones. The lawsuit was predicated on allegations that the husband had intercepted and recorded telephone conversations between the wife and their daughter. The wife alleged that the husband had taught their son to activate the recording device whenever his mother called. No outside telephone calls were recorded, and the taping device was placed on the father’s telephone, rather than on the mother’s. The court also noted by way of footnote that the father was enjoined by court order from remaining in the same room with his children when they spoke to their mother by phone. Nevertheless, the court concluded that the facts differed from those in Jones and in Schrimsher, which were criminal, rather than civil, proceedings in which the defendants had invaded the privacy of innumerable persons, both known and unknown, by virtue of unrestricted telephone wiretaps. The court determined that the facts did not give rise to coverage by the federal statutes. Anonymous, 558 F.2d at 679.
Careful attention should be paid to the Eighth Circuit’s ruling in Rice v. Rice, 951 F.2d 942 (8th Cir. 1991), in which an attorney was sued by his client’s former husband for advising the client to install a recording device on her telephone to document visitation arrangements. As a result of the device’s installation, telephone conversations between the former husband and the children were taped. The plaintiff-former husband encouraged the court to apply the ruling of Kempf retroactively. The court declined to do so, because the law was unsettled within the circuit at the time the attorney gave the advice. Rice, 951 F.2d at 945.
With regard to the telephone taping of conversations between the children and the other parent, the question of consent must be addressed. The federal statute provides an explicit exception for interceptions that are consented to in advance by one of the parties to the intercepted conversation. 18 U.S.C. § 2511(2)(d). Arguably, a parent (and/or de facto custodian) of the minor children would have an absolute right to consent to the taping on behalf of the children, who, at their young and tender age, were incapable of offering their own consent. Powers of consent, exercised for the purpose of protecting one’s children, would be an absolute bar to the application of the federal statutes. The issue of parental consent was raised by the father in Anonymous, 558 F.2d at 679–80, but was not reached by the court.
The Eighth Circuit has since disapproved the holding in Anonymous. See Platt v. Platt, 951 F.2d 159 (8th Cir. 1989). The district court had dismissed a man’s lawsuit against his estranged wife for intercepting his telephone calls to their daughter while she was in the wife’s custody. The basis for the dismissal was that the doctrine of interspousal immunity barred the lawsuit. This ruling was predicated on the holding in Anonymous that the wiretapping statute does not apply to purely domestic conflicts. The appellate court ruled that, in light of its decision in Kempf, it was apparent that the district court had relied on a nonexistent interspousal immunity. Platt, 951 F.2d at 160.
Recording Conversations to Which One Is Not a Party—State Statutes: It is a second-degree felony (punishable by confinement in the Texas Department of Criminal Justice—Institutional Division for a term of two to twenty years and a fine of not more than $10,000) for one who “intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication.” Tex. Penal Code § 16.02(b)(1), (f). The terms intercept, oral communication, and wire communication have the meanings assigned by article 18A.001 of the Texas Code of Criminal Procedure. Tex. Penal Code § 16.02(a). The article 18A.001 definitions are virtually the same as those in the federal statute (without the references to interstate commerce or communications). See Tex. Code Crim. Proc. art. 18A.001(13), (19), (24).
A civil lawsuit may be brought by a party to a communication against a person who intercepts, tries to intercept, or employs or obtains another to intercept or try to intercept the communication or who uses or divulges information he knows or reasonably should know was obtained by interception of the communication. Tex. Civ. Prac. & Rem. Code § 123.002(a)(1), (a)(2). The term communication means speech uttered by a person or information including speech that is transmitted in whole or in part with the aid of a wire or cable. Tex. Civ. Prac. & Rem. Code § 123.001(1). The term interception means the aural acquisition of the contents of a communication through the use of an interception device that is made without the consent of a party to the communication. Tex. Civ. Prac. & Rem. Code § 123.001(2).
The Texas wiretap statute does not apply if one party to the conversation consents to the taping or interception. Hall v. State, 862 S.W.2d 710, 713 (Tex. App.—Beaumont 1993, no writ); Kotrla, 718 S.W.2d at 855 (allowing intercepting party to offer taped conversations as evidence in divorce).
Three Texas courts of appeals have held that the interception of a telephone conversation by a spouse is illegal. See Collins v. Collins, 904 S.W.2d 792, 797 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Kent v. State, 809 S.W.2d 664, 668 (Tex. App.—Amarillo 1991, pet. ref’d); Turner, 765 S.W.2d at 469–71. Inferentially, the Collins court held that the guardian of a child may not tape a child’s telephone conversation with the child’s parent. See Collins, 904 S.W.2d at 798. The interception and use of intercepted communications are governed by 18 U.S.C. §§ 2510–2521 and also by Tex. Civ. Prac. & Rem. Code §§ 123.001–.004. The illegal interception of a wire, oral, or electronic communication is a second-degree felony. See Tex. Penal Code § 16.02(b).
There is no marital immunity. Collins, 904 S.W.2d at 797.
A wife received a $1 million punitive damage award based on the husband’s wiretap of her attorney’s office. Parker v. Parker, 897 S.W.2d 918, 929–30 (Tex. App.—Fort Worth 1995, writ denied), disapproved on other grounds, Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998).
E-Mail: Interception of electronic communication, such as email, is both a state and federal criminal act. See Tex. Penal Code § 16.02(b)(1)–(5), (f); 18 U.S.C. §§ 2511(1)(a)–(e), 2701.
Use of Evidence Obtained through Illegal Interception: Illegally obtained evidence retrieved through information gathered in violation of these statutes is inadmissible. Collins, 904 S.W.2d at 799.
Website: If the communication is to or from another state, knowledge of the sister state’s laws is essential. A state-by-state guide to taping phone calls and in-person conversation can be found on the Internet at www.rcfp.org/reporters-recording-guide/.
§ 2.9Requirement to Report Child Abuse—Inapplicability of Attorney-Client Privilege
Section 261.101 of the Texas Family Code provides:
(a)A person having reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.
(b)If a professional has reasonable cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has reasonable cause to believe that the child has been abused as defined by Section 261.001, the professional shall make a report not later than the 48th hour after the hour the professional first has reasonable cause to believe that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report. In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.
(b–1)In addition to the duty to make a report under Subsection (a) or (b), a person or professional shall make a report in the manner required by Subsection (a) or (b), as applicable, if the person or professional has reasonable cause to believe that an adult was a victim of abuse or neglect as a child and the person or professional determines in good faith that disclosure of the information is necessary to protect the health and safety of:
(1)another child; or
(2)an elderly person or person with a disability as defined by Section 48.002, Human Resources Code.
(c)The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or health care facility that provides reproductive services.
(d)Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:
(1)as provided by Section 261.201; or
(2)to a law enforcement officer for the purposes of conducting a criminal investigation of the report.
Knowing failure to make a report as required by section 261.101(a) or (b) constitutes a class A misdemeanor or state jail felony. Tex. Fam. Code § 261.109.
Except for reports of alleged abuse or neglect in any juvenile justice program or facility or reports of alleged or suspected abuse or neglect involving a person responsible for the care, custody, or welfare of the child, a report of alleged abuse or neglect shall be made to (1) any local or state law enforcement agency; (2) the Texas Department of Family and Protective Services (TDFPS); or (3) the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred. Tex. Fam. Code § 261.103(a). Except for reports to be made to the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred or reports of alleged abuse, neglect, or exploitation occurring in a juvenile justice program or juvenile facility, a report must be made to TDFPS if the alleged or suspected abuse involves a person responsible for the care, custody, or welfare of the child. Tex. Fam. Code § 261.103(c). Alleged abuse, neglect, or exploitation of a child that occurs in any juvenile justice program or juvenile facility shall be reported to the Texas Juvenile Justice Department and to a local law enforcement agency for investigation. Tex. Fam. Code § 261.405(b). A report may be made to the Texas Juvenile Justice Department if the report is based on information provided by a child while under the supervision of the department concerning the child’s alleged abuse of another child. Tex. Fam. Code § 261.103(b).
Family Code section 261.101(c) removes any exemption for otherwise privileged communications and applies the reporting requirement specifically to attorneys. See Tex. Fam. Code § 261.101(c).
COMMENT: The report may be made to TDFPS on a 24-hour toll-free number, 1-800-252-5400.
Immunities: A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed. This immunity extends to an authorized volunteer of TDFPS and a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities. A person who reports his or her own child abuse or neglect or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability. Tex. Fam. Code § 261.106.
Notice of the reporting requirement should be contained in the contract of employment between attorney and the client.
Cloud computing is a process whereby computer data is stored on a computer owned and maintained by a third party. A Texas lawyer describes the cloud as “your hard drive in the sky.” Dick Jordan, Cloud Nine, 77 Tex. B.J. 395 (2014). Another legal observer reports that cloud computing is merely “a fancy way of saying stuff’s not on your computer.” Quinn Norton, Byte Rights, Maximum PC, Sept. 2010, at 12. Because of the many benefits, including saving time, resources, and money, the popularity of cloud computing is growing rapidly.
Because client data is stored on remote servers outside the lawyer’s control, the American Bar Association and almost two dozen state bars have examined the ethics issues and published decisions regarding the use of cloud computing. Under the new additions to ABA Model Rule 1.6(c), the lawyer has a duty to “make reasonable efforts to prevent the inadvertent or unauthorized access to information relating to the representation of a client.” The Texas Lawyers’ Insurance Exchange Newsletter, Issue No. 2, 2011, states that most policies do not have an exclusion that applies to claims involving cloud computing. The Exchange suggests that the following security measures are reasonable:
1.Confidentiality: Lawyers should ensure that cloud vendors will keep information private. A vendor’s published privacy policy may provide sufficient assurance of confidentiality by employees of the vendor.
2.Auditing: Cloud computing vendors often have AICPA SAS 70 Type II audits available for customers to provide to their auditors in order to analyze the adequacy of security.
3.Physical security: Security monitoring of data should be continuous—twenty-four hours a day, seven days a week.
4.Network security: Cloud vendors should have firewalls blocking unauthorized connections, and third parties should audit firewall security periodically.
5.Software security: Independent audits of software security should be conducted by data centers periodically. Security patches and software updates must be applied within thirty days of publication.
6.Data transmission security: All transmission of sensitive data, such as passwords and client information, should use Secure Sockets Layer (SSL).
7.Backups and redundancy: Data centers should have multiple backups during the day. At least one backup location should be a considerable distance away from the data center. Multiple Internet service providers and power grids should be available in a network of data locations.
8.Data portability: A lawyer or law firm should ensure the ability to download all data in a commonly used format.
§ 2.11Client with Diminished Capacity
If a client appears to suffer from diminished capacity, the lawyer should communicate with any legal representative of the client and seek to maintain reasonable communication with the client insofar as possible. Even if the client suffers from diminished capacity, it may be possible to maintain some aspects of a normal attorney-client relationship, and the client may have the ability to understand, deliberate on, and reach conclusions about some matters affecting his own well-being. Tex. Disciplinary Rules Prof’l Conduct R. 1.03 cmt. 5.
When a client’s capacity to make adequately considered decisions in connection with the representation is diminished—whether because of minority, mental impairment, or another reason—the lawyer shall maintain a normal attorney-client relationship with the client insofar as reasonably possible. Tex. Disciplinary Rules Prof’l Conduct R. 1.16(a).
Under certain circumstances, the lawyer may take protective action regarding such a client and in doing so may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests. See Tex. Disciplinary Rules Prof’l Conduct R. 1.16(b), (c).
The following website contains information relating to the topic of this chapter:
State-by-state guide to taping phone calls and in-person conversations (§ 2.8:8)
www.rcfp.org/reporters-recording-guide/