Texas Supreme Court Protects Clients as Experts

Author: Brad McLain

Last week the Texas Supreme Court reinforced the primacy of the attorney-client privilege in the case of In re City of Dickinson, Cause No. 17-0020 (Tex. Feb. 15, 2019), by holding a client does not waive the privilege when the client testifies as expert. The attorney-client privilege protects confidential communications between a client or its representatives and the client’s lawyers or the lawyer’s representatives. Under the Texas Rules of Civil Procedure, a party may seek discovery of all documents, reports, information, and communications that have been provided to, reviewed by, or prepared by or for a testifying expert. The specific question the Texas Supreme Court faced in this case was whether the discovery of testifying expert materials was an exception to the attorney-client privilege when the testifying expert is also a party or an employee of a party to the litigation. After examination of the text of the procedural and evidentiary rules at issue, the Court found that the attorney-client privilege does not yield to the discovery of testifying expert materials when the client, or its representative, is the testifying expert. In short, the Court concluded that the attorney-client privilege is “’quintessentially imperative’ to our legal system” because without it lawyers “would not be able to give their clients candid advice,” and a “lawyer’s candid advice is no less important when a client also testifies as an expert.”

This ruling is especially relevant for SettlePou’s clients in eminent domain matters where a property owner and its representatives may testify as to the market value of its property. Therefore, a client-property owner would not waive the attorney-client privilege by providing expert valuation testimony in a condemnation proceeding.

For more information about this case, or its application to eminent domain law, please contact Allen Smith at asmith@settlepou.com or Brad McLain at bmclain@settlepou.com.