Baili B. Rhodes 2018-01-23 03:22:34
A Guide to What You Can and Cannot Say During my first year of law school, I lived in this old, tiny apartment near Lake Waco. The air conditioning barely worked. An entire wall in the living room was covered in mirrors, ostensibly to make the space look “bigger.” They were anything but aesthetically pleasing. My study partners and I decided to make use of the mirrors and turned them into dry-erase boards, where we illustrated difficult legal concepts for one another. For about three years, we spent hours each day learning new terms and concepts that would be relevant in our future careers. “Hearsay,” “unconscionable,” “preponderance,” and “consideration”—the list goes on and on. We memorized the word, the definition, and hopefully developed a basic understanding of its application. All three of us graduated and are now practicing lawyers, so I have to believe that the diagrams drawn on the mirrors in my living room did us some good. I know that lawyers across the state have similar stories of the devices they used to break down and understand difficult legal concepts. As practitioners, we are tasked with not only developing an understanding of legal concepts for ourselves but also introducing and explaining them to lay people, whether they be clients or witnesses. One area that can be particularly confusing for lawyers and non-lawyers is the law as it applies to privileged communication. The Federal and Texas Rules of Evidence designate certain communications between individuals as privileged and protect them from disclosure in litigation. While many people know of the existence of these privileges, they can be difficult to understand or to explain to clients and potential witnesses. I learned early in my career that given the opportunity, most people will tell you as much information as they can before you have the chance to tell them to stop. Potential clients will tell their entire life stories before they can be stopped. Expert witnesses will send written drafts, email questions, and create documentation that attorneys have no choice but to produce in discovery. Professionals will engage in what they believe to be undiscoverable communication with their patients or parishioners, only to discover it may not be as protected as they think. Sometimes, those communications can be extremely detrimental. Cognizant of the confusion that surrounds communication privileges, the Texas Young Lawyers Association Member Outreach Committee created Privilege 101: Understanding Privileged Conversations Under the Law, which provides a high-level look at the privileges related to attorney, client, and third-party communications in Texas. The guide is designed to give lawyers and non-lawyers a quick overview of applicable privileges. I wish I could provide every lawyer in the state access to mirrors and dry-erase markers as a teaching tool, but I think this guide may be the next best thing. TYLA fulfills its goal of serving the public and serving members of the bar by developing guides that lawyers can incorporate into their practices and non-lawyers can use to explain legal concepts. Privilege 101 and other guides that can be used to educate you and your clients can be found on our website, tyla.org. BAILI B. RHODES President, Texas Young Lawyers Association TYLA in Action The Texas Young Lawyers Association Member Outreach Committee created Privilege 101: Understanding Privileged Conversations Under the Law, which provides a high-level look at the privileges related to at torney, client, and third-party communications in Texas. TYLA board members and officers and Texas A&M University representatives attended a board meeting in San Antonio January 5 & 6. A few of the attendees who studied at Texas A&M University gathered for a photo opportunity. From left: Tim Newman, Roy Brantley, Amanda Abraham, Ross Volunteer Company Commander Kyle Barth, Steven Traeger, Lauren Sepulveda, former TYLA President Rebekah Steely Brooker, TYLA President Baili Rhodes, and Donald Delgado. TYLA hosted a reception at its January board meeting in honor of the winners of the Ultimate Writer Regional Writing Competition, which was co-sponsored by TYLA and Baylor Law School.
Published by State Bar of Texas. View All Articles.
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