PD-1087-15 01/13/2016
- "The attorney-client privilege belongs to the client and may not be waived without the client's consent. Appellant expressly waived attorney-client privilege but limited the waiver to one extraneous offense. Trial counsel questioned Appellant's previous counsel regarding privileged communications concerning a second extraneous offense without Appellant's consent."
- "Did the Court of Appeals err in determining trial counsel's disclosure was not ineffective assistance of counsel but instead an 'implied waiver?'"
- "Does implied waiver under the 'offensive use' doctrine apply to the general defense of reasonable excuse provided for in Tex. Pen. Code ยง 38.10?"
- "Can implied waiver under Tex. R. Evid. 511 trump Appellant's expressed and specific limitation on the waiver of her attorney-client privilege?"
- "Did the Court of Appeals improperly shift the burden to Appellant to prove she did not waive her attorney-client privilege?"
Bailey was charged with fraud in both Harris and Jefferson counties and was represented by Brian Roberts. When she was charged with felon in possession of a firearm in Brazoria County, her bonds in the fraud cases were revoked. She subsequently did not appear for her court date in Harris County and was charged with failure to appear. Her defense for failure to appear was that she believed she was not required to appear because her bond had been forfeited. At the failure-to -appear trial, her new attorney called Roberts to testify about his communications with Bailey. Bailey explicitly stated on the record that she was waiving her attorney-client privilege only with respect to the felon in possession case from Brazoria County. However, counsel asked Roberts whether he had told Bailey she needed to appear on the Jefferson County case. Roberts responded that he had warned Bailey that if she did not show up for court in Jefferson county, she might be charged with failure to appear. The trial court ruled that this questioning opened the door to all communications and waived the attorney-client privilege. Counsel's motion for mistrial was denied. He argued to the jury that, while Roberts told Bailey she could be charged for failing to appear in Jefferson County, he did not warn her about failing to appear for the Harris County case.
The court of appeals held that counsel did not render ineffective assistance of counsel by opening the door to communications that Bailey did not explicitly waive. It noted that waiver of any significant part of a privileged communication can constitute waiver of the whole, and reliance on counsel's advice as a defense impliedly waives the privilege. In that vein, the privilege cannot be used as both a sword and a shield, i.e., offensively and defensively. Here it held, Bailey and her counsel's attempt to selectively invoke the privilege opened the door to the remaining communications, even before counsel explicitly questioned Roberts about his advice regarding the Jefferson and Harris County cases.
Bailey takes issue with the court of appeals' determination that her defense attempted to use her communications with Roberts as a "sword." In civil cases, the offensive use doctrine prohibits invoking the privilege after selectively using attorney-client communications to seek affirmative relief. Here, she points out, she is using the communications as a defense, not to obtain affirmative relief. So they are being used defensively, not offensively. She also contends that the attorney-client privilege can only be waived by the client, and she did not acquiesce to trial counsel's opening the door, especially since she explicitly limited her waiver. Finally, she argues that counsel's opening the door to admission of all attorney client communications cannot be deemed trial strategy, as he admitted that he had overstepped his boundaries.
