The Texas version of solicitor-client privilege is codified in the Texas Rule of Evidence 503. Under Rule 503, confidential communications between clients and legal advisors to facilitate legal services are generally isolated from disclosure. TRE 503 (b). It is certainly the oldest privilege of confidential communication, known by common law, but it is not absolute. See In re XL Specialty Ins. Co., 373 S.W.3d 46 (Tex. 2011). What is truly remarkable in XL Specialty is the discussion and attitude of the Texas Supreme Court with respect to the requirements of the Allied conflict doctrine and the discussion of common client privilege, common defence and common doctrines of interest in Texas. Complex litigation and multi-party negotiations can lead to a unique dynamic in which groups of parties are coordinated. In such cases, legal counsel should recognize the potential benefits of common and common interest defence agreements.
While there are some differences between these types of agreements, they are similar in that they offer privileges and immunities for communication between the aligned parties and their counsel. However, to take advantage of these benefits, it is important to understand how these agreements should be concluded and how the courts see them. In particular, the conditions, scope and limitations of the common privilege of the defence or the privilege of common interest may vary considerably depending on jurisdiction. State and federal jurisdictions are different from whether they recognize a common law of defence or a privilege of common interest and to what extent such a privilege applies. Texas Rule of Evidence 503 specifically defines privilege-protected communications. Rule 503 B) protects not only communication between lawyer and client, but also communication between representatives. The Court`s opinion focused on Section 503 B) (1) C), which protects disclosure “by the client or by a client`s agent or by the client`s lawyer or agent`s agent, to a lawyer or agent representing another party in a pending action, and to a case of common interest in a pending action and in connection with a case of common interest in a pending action.” The Tribunal found that this privilege has been repeatedly described as a “common client,” a “common defence” or a “common interest.” Although the Court recognized that the courts sometimes used these terms interchangeably, it found that they were different doctrines, intended for different purposes, and that none of them had accurately described the privilege at issue in this case. The Court also found that the “common client” rule was not applicable, as no argument or evidence had been presented to show that XL`s lawyers also represented Cintas. The Court did not rule out that, in certain circumstances, the same lawyer could represent both the insured and the insurer.
The Court also found that there may be situations in which an insurer may be a representative of an insured under Rule 503, but that this argument has not been invoked or proven in this case.