Privilege & Immunity Quick-Reference Checklist for Texas General Counsel
In their 2027 book, “In-House Counsel’s Compass: Navigating Privilege, Immunity and Risk in Texas and Beyond,” co-authors Trey Cox and Alan Dabdoub explore the challenges and pitfalls for in-house lawyers navigating privilege today. Buy it now.
Exclusive: The following is an exclusive excerpt highlighting the dual and often conflicting roles for today’s in-house legal departments and how they impact protecting privilege.
Bottom Line:
Privilege and immunity are not automatic—they are assets to guard fiercely. Treat them as strategic tools, not technicalities. By staying in your legal lane, documenting properly, and embedding discipline across the organization, you protect your company and yourself.
Privilege & Immunity Quick-Reference Checklist for Texas General Counsel
Use this as a guide to reduce risk, protect privilege, and safeguard both the company and yourself.
1. Attorney-Client Privilege (Texas Rule of Evidence 503)
Primary Purpose Test: Ensure communications are for legal advice, not business strategy.
Label Clearly: Use “PRIVILEGED AND CONFIDENTIAL: ATTORNEY-CLIENT COMMUNICATION.”
Avoid Over-Inclusion: Don’t copy unnecessary third parties; privilege is easily waived.
Train Executives: Teach them when to involve legal, and what not to put in writing.
2. Work-Product Doctrine (TRCP 192.5)
Core Work Product: Mental impressions and legal theories = absolute protection.
Non-Core Work Product: Factual notes/interviews = discoverable with “substantial need” and “undue hardship.”
Anticipation of Litigation: Clearly document when litigation is reasonably expected.
Mark Documents: Label with “Prepared in Anticipation of Litigation – Attorney Work Product.”
3. Personal Liability Risks for In-House Counsel
Exposure Points: SOX certifications, fiduciary duty claims, securities violations, and bankruptcy.
Insurance Gaps: Confirm D&O policy includes in-house counsel; don’t assume coverage.
Best Practices:
Push high-risk advice through outside counsel.
Stay in your legal lane—advise, don’t decide.
Keep documentation disciplined and legal-focused.
4. Attorney Immunity in Texas
Broad Shield: Covers even fraud and conspiracy claims if tied to legal representation.
Not Absolute: No immunity for business decisions or acts “foreign to lawyering.”
Role Discipline: Document that you are acting as legal counsel, not as an executive.
5. Cross-Border Complications
Assume Strictest Standard Applies: Treat communications under the narrowest state law.
Upjohn Warning: Always give the corporate Miranda when interviewing employees: the company (not the individual) holds privilege.
Consultants: Retain through legal with contracts that tie them to legal advice.
UPL Risks: Register in states with employees; confirm compliance with MJP rules.
6. Action Plan for General Counsel
Audit privilege practices regularly.
Train executives and managers on privilege basics.
Review insurance/indemnification annually.
Establish rapid-response protocols for inadvertent disclosures.
Use outside counsel strategically for high-risk matters.