in Re Hugh Larkin
01-15-00392-CV
Tex. App.Apr 27, 2015Background
- Hugh Larkin (Relator) sued neighboring unit owner Holly Rodriguez and the condominium association for trespass/encroachment and related claims; his daughter Whitney Larkin lives in the unit and holds a power of attorney to handle condominium matters for him.
- Relator asserted attorney-client privilege and other objections to discovery; defense moved to compel and for sanctions after receiving incomplete/responsive discovery answers.
- The trial court ordered Relator to produce a privilege log and submitted the disputed documents for in camera review; the court then entered orders (March 18 and April 15, 2015) overruling Relator’s privilege objections and conditioning/awarding modest sanctions for noncompliance.
- Relator filed a mandamus petition asking the appellate court to compel the trial court to vacate the disclosure and sanction orders, arguing the communications were privileged because (1) Whitney acted as Relator’s agent under a power of attorney and is therefore a client’s representative under Tex. R. Evid. 503, and (2) Whitney is a licensed Texas attorney and her communications with Hugh were for legal advice, creating an attorney-client relationship by conduct.
- Relator relies on the idea that a principal’s agent (via power of attorney) who obtains legal services for the principal is covered by the attorney-client privilege and that communications with an attorney (even one not of record) can be privileged if the parties intended and conducted themselves as attorney-client.
Issues
| Issue | Plaintiff's Argument (Larkin) | Defendant's Argument (Rodriguez) | Held (trial-court posture) |
|---|---|---|---|
| Whether communications between Hugh and Whitney (his agent under POA) are privileged | Whitney is Hugh’s "representative" under the POA; Tex. R. Evid. 503 protects confidential communications between client representatives and counsel | Whitney is not the client’s lawyer of record and communications with her fall outside privilege | Trial court: overruled privilege objections; ordered production after in camera review |
| Whether communications with Whitney — a licensed attorney — waived privilege or created attorney-client privilege | Communications with Whitney were for legal advice; the parties’ conduct manifested intent to create attorney-client relationship | Defense contends no attorney-client relationship existed with Whitney and privilege therefore does not apply | Trial court: found no privilege waiver exception; ordered disclosure |
| Whether mandamus is appropriate to prevent disclosure of privileged materials | Disclosure of privileged documents is irretrievable; trial court misapplied law on client representatives and implied attorney-client relationship | Defendants rely on trial-court ruling and discovery sanctions to compel production | Posture: Relator seeks mandamus because appeal cannot undo disclosure; appellate ruling pending (petition filed) |
| Scope of privilege as to documents between Hugh and Whitney (including invoices, drafts, strategy) | All communications made by/through Whitney in furtherance of legal services are confidential under Tex. R. Evid. 503 | Defense seeks those documents as discoverable | Trial court ordered production; Relator seeks relief by mandamus |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standard: appellate relief appropriate when trial court clearly abuses discretion and no adequate appellate remedy exists)
- Braden v. Marquez, 950 S.W.2d 191 (Tex. App.—El Paso 1997) (mandamus may issue where trial court fails to apply governing law)
- Intermedics, Inc. v. Grady, 683 S.W.2d 842 (Tex. App.—Houston [1st Dist.] 1984) (agency and actual authority principles relevant to power-of-attorney relationships)
- Bhalli v. Methodist Hosp., 896 S.W.2d 207 (Tex. App.—Houston [1st Dist.] 1995) (discusses authority and agency concepts in context of representative relationships)
- Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432 (Tex. App.—Houston [1st Dist.] 2000) (attorney-client relationship can be implied from parties’ conduct)
- Vinson & Elkins v. Moran, 946 S.W.2d 381 (Tex. App.—Houston [14th Dist.] 1997) (an attorney-client relationship may be found despite contrary verbal assertions if conduct shows intent to form that relationship)
- Roberts v. Healey, 991 S.W.2d 873 (Tex. App.—Houston [14th Dist.] 1999) (conduct can manifest intent to create attorney-client relationship)
- Clark v. Ruffino, 819 S.W.2d 947 (Tex. App.—Houston [14th Dist.] 1991) (attorney functions and conduct can establish attorney-client relationship)