The Attorney-Client Privilege: A Review of the Privilege and Potential Waiver

II. A Review of the Elements of the Attorney-Client Privilege

A. An Attorney-Client Relationship Must Exist

There must be an attorney-client relationship for the privilege to exist, and the client must be seeking legal advice. The privilege applies to both prospective clients and actual clients.⁴ Those clients may be individuals, corporations, partnerships, or associations, who consult a lawyer in that lawyer’s professional capacity.⁵ In the context of a corporation, the privilege can also apply to communications between the corporation and its staff counsel or outside counsel.⁶ For corporate clients, courts are particularly cautious in applying the privilege to ensure corporations cannot shield information by simply routing it through counsel.⁷ Regardless of their particular position, however, “when an employee acting within the scope of their employment meets with the employer’s counsel and seeks legal advice on behalf of the employer, those communications are protected by the attorney-client privilege.”⁸

B. The Communication Must Be For and Relate To a Legal Purpose

For a communication to be protected it must be confidential and “made in furtherance of the rendition of professional legal services to the client.”⁹ When a lawyer performs nonlegal services, such as supplying business advice, acting as an accountant, insurance adjuster, public relations professional, or otherwise, the privilege does not attach.¹⁰ For example, in an insurance context, if an attorney is performing the function of a claims adjuster, i.e., investigating a claim and determining whether a loss is covered, courts will generally find that the attorney-client privilege does not apply because it is a non-legal, business function of an insurance company.¹¹ However, sometimes what constitutes claims handling and the rendition of legal advice can be unclear. Accordingly, a court will have to engage in an in camera review of each potentially protected communication in order to determine whether the attorney was performing legal services.

In some cases, a Texas court has found that an attorney wears two hats—e.g., that of a claims handler and as legal counsel.¹² The court in OneBeacon Ins. Co. v. T. Wade Welch & Associates analyzed whether OneBeacon Insurance Company (“OneBeacon”) had improperly redacted its claims file and withheld certain documents on the basis of the attorney-client privilege and the work product doctrine.¹³ The court acknowledged that pursuant to Texas law, “[t]o the extent an attorney acted as a claims adjuster, claims process supervisor, or claim investigation monitor, and not as a legal advisor, the attorney-client privilege would not apply.”¹⁴ However, where an attorney serves as both legal counselor and claims handler, the portion of the communications that are for legal services shall still be protected so long as the communications meet the other requirements for maintaining the privilege.¹⁵ Therefore, the key inquiry regarding when communications are privileged turns on whether there is a shift from investigating a claim to providing legal advice.

C. The Communication Must be Made by the Client

In some instances, an attorney’s communications to a client may also be protected by the privilege so long as the other elements establishing privilege are met.¹⁶ Communications by an attorney to a client may also be privileged if “they would tend to disclose the client’s confidential communications.”¹⁷

D. The Communication Must be Made in Confidence

The attorney-client communication must also be intended to be confidential.¹⁸ For example, a client or prospective client speaking to his or her lawyer about a pending lawsuit in a private office with no one else present would suggest that the conversation was confidential. In contrast, if a client speaks to his or her attorney in a public setting, in close vicinity to others, and at a loud volume, then there could be a question as to whether those communications were intended to be held in confidence.¹⁹

Additionally, in League of United Latin American Citizens v. Abbott, the party seeking disclosure argued that communications between the chair of the Texas Legislature’s redistricting committee and his attorney were not privileged because the chair publicly discussed information related to the subject matter of the communications in a committee hearing.²⁰ The court closely scrutinized the discussion and found that the attorney-client privilege had not been waived because the chair only discussed his “understanding and personal beliefs, not privileged communications.”²¹ The court concluded that the communications were made in confidence and not disclosed to any third party.²² The court found that the manner in which the chair answered the questions he was asked during the committee hearing safeguarded the substance of his communications with his attorney in a manner sufficient to maintain the attorney client privilege.²³

If a client repeats an otherwise confidential conversation to a third-party, or if a third-party is present when the attorney and client communicate, then the conversation may not be privileged. This general premise does not apply, however, to agents of the employee or agents of the client so long as the agents “(1) had the authority to obtain professional legal services on behalf of the client; (2) had authority to act on legal advice rendered to the client; or (3) made or received the confidential communication while acting within the scope of his employment for the purpose of effectuating legal representation to the client.”²⁴ In the insurance context, policyholders often include their insurance broker in communications with coverage counsel because insurance brokers often place the policy and are familiar with the policyholder’s operations and claim history. Courts take a fact specific approach in determining whether an insurance broker constitutes an agent of the insured and whether the communication remains privileged.²⁵ Additionally, where an insurer has an obligation to defend its insured, communications between the insurer and insured are usually privileged.²⁶

E. What is Not Protected by the Attorney-Client Privilege

Now that we have examined what is protected under attorney-client privilege, this article will examine what is not protected. Under Texas law, the attorney-client privilege “attaches to the complete communication between attorney and client, including both legal advice and factual information.”²⁷ The court in In re ExxonMobil Corp. stated:

It is inconceivable that an attorney could give sound legal advice on a client’s case if he or she did not include an application of the law or opinion to the specific facts of that case. If we were to hold that all or part of a document containing privileged information should be disclosed because it also included facts pertinent to the lawsuit, the purpose of the attorney-client and work-product privileges would be annihilated. The ultimate effect of such a holding would be that clients would be reluctant to give their attorneys any factual information for fear that it would be subject to discovery. And no attorney could even begin to prepare a case for trial, or be able to give sound advice for lack of those facts. Such a chilling intervention into the attorney-client relationship under the guise of “looking for facts,” pierces the core of a critical privilege to carve out limited and usually superfluous morsel of discovery otherwise obtainable. The cost is too great.²⁸

The court held that documents containing both legal and factual information were privileged and could be withheld from production in their entirety. However, the court also noted that the factual information may be obtained through other means such as depositions or other forms questioning where the attorney or other party may be required to provide a neutral recitation of the facts.

F. How to Assert Attorney-Client Privilege

As a preliminary matter, the party asserting the privilege bears the burden of establishing that an attorney-client relationship existed and the privileged nature of the communication.²⁹ The privilege can be asserted in any proceeding in which testimony is compelled, such as civil, criminal, or administrative trials, or regulatory and disciplinary proceedings.³⁰ If the privilege applies, compelled disclosure is prohibited regardless of need, subject to a few exceptions.³¹ The privilege can and must be asserted throughout the discovery process, including but not limited to, during document production, interrogatory responses, and depositions.³² Texas Rule of Civil Procedure 193.3 provides in relevant part that:

193.3 Asserting a Privilege

A party may preserve a privilege from written discovery in accordance with this subdivision.

(a) Withholding privileged material or information. A party who claims that material or information responsive to written discovery is privileged
may withhold the privileged material or information from the response. The party must state — in the response (or an amended or supplemental response) or in a separate document — that:

(1) information of material responsive to the request or required disclosure has been withheld,

(2) the request or required disclosure to which the information or material relates, and

(3) the privilege or privileges asserted.

The U.S. District Court for the Northern District of Texas has concluded that “a privilege log must identify each document and provide basic information, including the author, recipient, date and general nature of the document.”³³ Texas Rule of Civil Procedure 193.3(b) also provides that a party seeking discovery may serve a written request that the withholding party identify the information withheld after receiving a response indicating that information has been withheld from production.

G. How Long Does the Privilege Last?

The attorney-client privilege remains in effect after the attorney-client relationship ends and even after the client dies.³⁴ An attorney may never divulge the contents of those communications or a client’s secrets without the client’s permission unless an exception applies.³⁵

H. Waiver of Attorney-Client Privilege

As a general principle, “[t]he attorney-client privilege is waived when the holder of the privilege voluntarily discloses the privileged material to a third party.”³⁶ If you fail to assert a claim of privilege, it is likely waived.³⁷ Privileged documents may also be inadvertently produced to an opposing party during the discovery process. Texas Rule of Evidence 511(b) (2) states, “in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).”³⁸ Texas Rule of Civil Procedure 193.3(d) dictates the steps the parties must take when a communication is produced that is subject to a claim of privilege. Rule 193.3(d) states:

A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if—within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made—the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, any party who has obtained the specific material or information must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.³⁹

However, Texas courts have found that the privilege is waived if a party does not take reasonable precautions to prevent disclosure because “[i]nadvertent production is distinguishable from involuntary production.”⁴⁰ Accordingly, if a document is disclosed “due to inattention, unwittingly— but nonetheless voluntarily,” the communications will not be protected by the attorney-client privilege.⁴¹

Another form of waiver is the “at issue” waiver. “At issue” waiver occurs when a party used the privilege offensively and puts the subject matter of their privileged communications at issue in litigation. This requires the invasion of the privilege to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive an adversary of vital information.⁴² Privileged communications are not at issue merely because a party alleges in a responsive pleading that they were not negligent or did not engage in the conduct of the claim asserted against them.⁴³ For example, in Republic Insurance Co. v. Davis, the court found that an insurer did not put their privileged communications at issue by filing a declaratory judgment action because the insurer was not seeking affirmative relief, which did not constitute an offensive use of the privilege.⁴⁴

I. Exceptions and Defenses

There are several exceptions to the attorney-client privilege—some are more relevant to this article than others. First, the crime-fraud exception to attorney-client privilege is implicated when attorney/client communications are made in furtherance of a crime or fraud.45 The protections
afforded by the attorney-client privilege do not apply “if the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.”⁴⁶

Particularly relevant to insurance coverage cases is the joint defense privilege, which is sometimes referred to as the common legal interest exception. The common interest doctrine allows independently represented parties with a common legal interest to share information with each other without waiving the attorney-client privilege if a joint defense effort, or strategy, has been decided upon.⁴⁷ If the parties cannot demonstrate that they shared a common legal interest with one another, however, then the privilege cannot be asserted.⁴⁸ The common interest doctrine is not definitive in its protection for insureds or an insurer against disclosure of privileged information when an insurer is involved in the insured’s defense. For example, in In re XL Specialty Insurance Co., the court found where an insurer’s outside counsel communicated with an insured regarding the status of proceedings, the insurer and the insured had a common legal interest. However, because the communication was not made to the insured’s counsel, the communications were not privileged.⁴⁹ Conversely, in In re Skiles, the court found the joint defense privilege applied where the defendant in the underlying lawsuit previously participated in extensive settlement negotiations with plaintiff’s counsel’s firm.⁵⁰ A policyholder may also be permitted to use the common interest doctrine as a shield to preclude a liability claimant from accessing privileged communications between the policyholder, its insurer, and its defense counsel.⁵¹

III. A Discussion of the Potential Waiver of the Attorney-Client Privilege

The Mississippi Supreme Court made headlines in 2020 with Travelers Property Casualty Co. of Am. v. 100 Renaissance, LLC when it found that an insurer impliedly waived the attorney-client privilege and allowed the discovery of an insurer’s in-house counsel’s communications. In considering the case, the Supreme Court of Mississippi considered whether the attorney-client privilege was waived when a disclaimer letter was drafted by the insurer’s in-house counsel and sent under the adjuster’s signature.⁵² The Court said yes. In that case an unidentified driver struck a flagpole owned by 100 Renaissance and caused $2,134 in damages.⁵³ 100 Renaissance filed a claim under its automobile-liability insurance policy with Travelers, seeking uninsured motorist coverage.⁵⁴ Travelers denied coverage because the flagpole was not a covered auto.⁵⁵ Counsel for 100 Renaissance disputed the denial because Mississippi’s UIM statute provided coverage for the flagpole. Mississippi Code Section 83-11-101(2) (Supp. 2019) stated:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1980, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for property damage from the owner or operator of an uninsured motor vehicle . . . .⁵⁶

Travelers’ adjuster sought help from in-house counsel.⁵⁷ The adjuster then denied the claim again.⁵⁸ The insured sued Travelers for bad faith and deposed the adjuster.⁵⁹ In the transcript, the adjuster disclaimed any knowledge of the statute:

Q: Just looking at the statute, the plain language of the statute right here, okay, [Section] 83-11-101(2), you looked at before. Is there coverage under that statute,
under the plain reading of that statute?

Q: In your opinion.

A: I don’t know. I’m not an attorney. I don’t know anything about statutes. That’s what we have General Counsel for. I deal with policy language, what’s in the policy.⁶⁰

Travelers paid for the damage, but the insured maintained its bad faith claims and sought production of email between the adjuster and in-house counsel as well as the in-house counsel’s deposition.⁶¹ Following an in camera review, the trial court ordered production of the emails as well as production of in-house counsel for a deposition.⁶² Travelers filed an interlocutory appeal, which was granted.⁶³

Ultimately, the Supreme Court of Mississippi held that the adjuster’s testimony put the attorney-client privilege at issue and therefore waived the privilege.⁶⁴ Her testimony was bereft of any knowledge or information as to why the claim was denied.⁶⁵ The decision was based primarily on the fact that the second denial letter was written after in-house counsel’s involvement and was signed by the adjuster.⁶⁶ The Court noted that “[g]enerally, it may be expected that the person who signs a letter has personal knowledge of the matters set forth in the letter.”⁶⁷ Furthermore, the Court found that the adjuster lacked the necessary personal knowledge, explaining:

Travelers sent the denial letter to Renaissance in an effort to explain its arguable and legitimate basis to deny the claim. The letter was signed by [the adjuster]; but based on her deposition testimony, it clearly was prepared by someone other than [the adjuster], most likely [in-house counsel]. If so, [in-house counsel] did not act as legal counsel and give advice to [the adjuster] to include in the denial letter. Instead, the denial letter contained [in-house’s counsel’s] reasons to deny the claim. [The adjuster’s] signature was simply an effort to hide the fact that [in-house] counsel, not [the adjuster] had the personal knowledge of Travelers’ reasons to deny the claim and to use the attorney-client privilege as a sword to prevent Renaissance from discovering the reasons from the person who had personal knowledge of the basis to deny the claim.⁶⁸

The Court found that the claims handler relied substantially, if not wholly, on in-house counsel to prepare the denial letter, so the reasoning of in-house counsel should be discoverable.⁶⁹

Similarly, Texas courts have set forth stringent requirements, as they have repeatedly held that if an attorney is “merely performing the ordinary business functions of an insurance company,” their communications with an insurer are not privileged.⁷⁰ Accordingly, if an insurance company cannot point to a “definite shift from acting in its ordinary course of business to acting in anticipation of litigation,” then its documents and other information are discoverable.⁷¹

In Lanelogic, Inc. v. Great American Spirit Insurance Co., the court required an insurer to produce documents prepared by or sent to its attorney because the insurer could not point to a particular point in time at which it began acting in anticipation of litigation.⁷² There, the court observed that “courts have routinely recognized that the investigation and evaluation of claims is part of the regular, ordinary, and principal business of insurance companies.”⁷³ As a result, those materials are not privileged.⁷⁴ Similarly, in OneBeacon, the court provided further guidance regarding when communications are privileged. Specifically, the court stated:

What would otherwise be routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is ‘copied in’ on correspondence or memoranda. The distinction is based on the purpose of the communication.⁷⁵

The pertinent question, therefore, is when the insurer shifts from investigating to acting in anticipation of litigation, and the answer depends on a number of factors, such as the date coverage is denied or when the matter is referred to outside counsel.⁷⁶ Unlike in Lanelogic, the court in OneBeacon found that communications between the insurer and its counsel were protected because OneBeacon stated it was anticipating litigation, and it took action consistent with that statement by referring the matter to outside counsel and sending a denial letter to its insured.⁷⁷

Texas courts continue to reiterate the standards it set forth in Lanelogic and OneBeacon in cases like Skogen v. RFJ Auto Group, Inc. Emp. Benefit Plan, where the court held that communications between the insurer and its attorney were not protected because they did not point to a definite enough shift from acting in the insurer’s ordinary course of business.⁷⁸ Instead, the communications merely “discuss[ed] the investigation, evaluation, denial, and status” of the insured’s claims.⁷⁹

IV. Conclusion

The attorney-client privilege may be waived when outside counsel is engaged in investigating and evaluating or processing a claim. Policyholders over the past few years have attempted to obtain claims file documents and institutional documents from an insurer during coverage litigation with an emphasis on communications with outside counsel. Insurers rigorously fight these attempts, sometimes without success. Ultimately, Texas law demonstrates the importance of being precise about the role of attorneys in the claims handling process, whether the claims are in the first- or third-party context. Failure to clearly demarcate this role can lead to the discoverability of otherwise privileged information. Texas law is clear that if an insurer cannot point to a definite shift from acting in its ordinary course of business to acting in anticipation of litigation, communications between the insurer and its attorney may not be covered by the attorney-client privilege. As such, it is crucial for attorneys to keep in mind these key factors to assess whether they might erode the attorney-client privilege in cases involving coverage disputes.

1 The work product doctrine is distinct from and broader than the attorney-client privilege. Attorneys must be diligent in evaluating whether the doctrine applies separately from the attorney-client privilege. Tex. R. Evid. 192.5(a)(1).

2 See Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981); Butler v. American Heritage Life Ins. Co., No. 4:13-CV-199, 2016 WL 367314, at *1 (E.D. Tex. Jan. 29, 2016) (citing U.S. v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002)); see also Jason Batts, Rethinking Attorney-Client Privilege, 33 Geo. J. Legal Ethics 1, 5 (2020).

3 See Tex. R. Evid. 503(b); see also Huie v. DeShazo, 922 S.W.2d 920, 925 (Tex. 1996).

4 See In re Auclair, 961 F.2d 65, 69–70 (5th Cir. 1992) (privilege can also apply to a prospective client, even if the attorney is not ultimately retained); Perkins v. Gregg County, Tex., 891 F. Supp. 361, 364 (E.D. Tex. 1995) (the privilege applies even if the lawyer ultimately declines to represent the prospective client); Mixon v. State, 224 S.W.3d 206, 209–10 & n. 1 (Tex. Crim. App. 2007) (there is no requirement that an attorney-client relationship be formed before the privilege is applied).

5 See State v. DeAngelis, 116 S.W.3d 396, 404 (Tex. App.—El Paso 2003, no pet.) (citing Tex. R. Evid. 503(a)(1)).

6 In re Fairway Methanol LLC, 515 S.W.3d 480, 487-88 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

7 In re LTV Secs. Litig., 89 F.R.D. 595, 602 (N.D. Tex. 1981).

8 Texas Tech Univ. Health. Scis. Ctr. – El Paso v. Niehay, 641 S.W.3d 761, 789 (Tex. App.—El Paso 2022, pet. filed) (citing Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 197–98 (Tex. 1993)).

9 Head v. State, 299 S.W.3d 414, 444–45 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

10 See Advanced Tech. Incubator, Inc. v. Sharp Corp., 263 F.R.D. 395, 398 (W.D. Tex. 2009); U.S. v. Davis, 636 F.2d 1028, 1044 (5th Cir. 1981) (holding attorneys do not always act in a legal capacity and instead sometimes serve as a business advisor, agent, or other capacity, in which cases the attorney-client privilege does not apply).

11 See OneBeacon Ins. Co. v. T. Wade Welch & Assocs., No. H-11-3061, 2013 WL 6002166, at *4 (N.D. Tex. Nov. 12, 2013).

12 Id.

13 Id. at *5.

14 Id. at *4. (quoting Harper v. Auto–Owners Ins. Co., 138 F.R.D. 655, 671 (S.D. Ind.1991)).

15 Id. at *3.

16 Advanced Tech. Incubator, 263 F.R.D. at 397–98.

17 Soverain Software LLC v. Gap, Inc., 340 F. Supp. 2d 760, 762 (E.D. Tex. 2004).

18 Nguyen v. Excel Corp., 197 F.3d 200, 207 n.18 (5th Cir. 1999); State v. Martinez, 116 S.W.3d 385, 393 (Tex. App.—El Paso 2003, no pet.).

19 See U.S. v. Robinson, 121 F.3d 971, 976 (5th Cir. 1997) (citing U.S. v. Melvin, 650 F.2d 641, 646–47 (5th Cir. 1981)).

20 League of United Latin Am. Citizens v. Abbott, 342 F.R.D. 227, 231 (W.D. Tex. 2022).

21 Id. at 236.

22 Id.

23 Id.

24 Total Rx Care, LLC v. Great Northern Ins. Co., 318 F.R.D. 587, 596 (N.D. Tex. 2017) (internal quotation marks and citation omitted).

25 See e.g., In re TETRA Techs., Inc. Sec. Litig., No. 4:08-CV-0965, 2010 WL 1335431, at *5 (S.D. Tex. Apr. 5, 2010) (finding that communications with attorney that included a broker maintained privilege so long as the communications were “to facilitate the rendition of legal services”); Homeland Ins. Co. of N.Y. v. Clinical Pathology Labs., Inc., No. 1-20-CV-783-RP, 2022 WL 17255798, at *3 (W.D. Tex. Nov. 28, 2022) (holding that “Rule 503(B) protects not only confidential communications between the lawyer and the client, but also the discourse among their representatives” so long as the other requirements are met) (quoting In re XL Specialty Ins. Co., 373 S.W.3d 46, 49–50 (Tex. 2012)).

26 In re Fontenot, 13 S.W.3d 111, 113-–14 (Tex. App.—Fort Worth 2000, no pet.).

27 In re ExxonMobil Corp., 97 S.W.3d 353, 357 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

28 Id. at 357-58 (quoting Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 425 (Tex. App.—Houston [14th Dist.] 1993, orig. proceeding)).

29 See Jordan v. Ct. of App. for Fourth Sup. Jud. Dist., 701 S.W.2d 644, 648-49 (Tex. 1985).

30 Tex. R. Evid. 503.

31 Id.

32 In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. App.—Tyler 2013, no pet.) (holding that a party may assert the privilege throughout the discovery process by withholding documents and providing evidence of the applicability of the privilege).

33 Jolivet v. Compass Groups USA, Inc., 340 F.R.D. 7, 21 (N.D. Tex. 2021) (citation omitted).

34 See Morrison v. State, 575 S.W.3d 1, 26 (Tex. App.—Texarkana 2019, no pet.).

35 See id; see also Tex. R. Prof. Conduct 1.05(b)-(d).

36 Niehay, 641 S.W.3d at 789 (citing Tex. R. Evid. 511(a)(1)).

37 See id. at 790 (citing Granada Corp. v. Hon. First Ct. of App., 844 S.W.2d 223, 226 (Tex. 1992) (failure to take reasonable precaution in document production that results in an inadvertent disclosure constitutes a waiver of the attorney–client privilege); Delaporte v. Preston Square, Inc., 680 S.W.2d 561, 564 (Tex. the attorney-client privilege in cases involving coverage disputes. App.—Dallas 1984, writ ref’d n.r.e.) (a party’s “failure to assert the attorney-client privilege at the time of his deposition resulted in a waiver of the matter being protected by the attorney-client privilege”); Eloise Bauer & Assocs., Inc. v. Elec. Realty Assocs., Inc., 621
S.W.2d 200, 204 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.) (failure to object to question regarding a written communication between the attorney and client waives the privilege)).

38 Tex. R. Evid. 511(b)(2).

39 Tex. R. Evid. 193.3(d).

40 Granada Corp., 844 S.W.2d at 226.

41 Id.

42 See Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107 (Tex. 1985).

43 See Parten v. Brigham, 785 S.W.2d 165, 168 (Tex. App.—Fort Worth 1989, no writ).

44 Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993).

45 See Volcanic Gardens Mgmt. Co., Inc. v. Paxson, 847 S.W.2d 343, 346-47 (Tex. App.—El Paso 1993, no writ) (applying the exception where an attorney declined to further represent a client because he believed the claim was fraudulent); In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 98 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (declining a waiver of the attorney-client privilege where the party asserting the exception could not connect the communications to the alleged crime).

46 Tex. R. Evid. 503(d)(1).

47 See In re XL Specialty Ins. Co., 373 S.W.3d at 50–51; In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 922 (Tex. App.—Dallas 2006, pet. denied); see also Tex. R. Evid. 503(d)(5).

48 See In re XL Specialty Ins. Co., 373 S.W. 3d at 53–55.

49 Id.

50 In re Skiles, 102 S.W.3d 323, 325–27 (Tex. App.—Beaumont 2003, no pet.) (per curiam).

51 See In re XL Specialty Ins. Co., 373 S.W. 3d at 53.

52 Travelers Prop. Cas. Co. of Am. v. 100 Renaissance, LLC, 308 So.3d 847, 857 (Miss. 2020), reh’g denied (Jan. 14, 2021).

53 Id. at 848.

54 Id.

55 Id.

56 Id. at 849.

57 Id.

58 Id. at 849-–50.

59 Id. at 850–53.

60 Id. at 853.

61 Id.

62 Id.

63 Id.

64 Id. at 855.

65 Id.

66 Id.

67 Id.

68 Id.

69 Id. at 857.

70 OneBeacon Ins. Co., 2013 WL 6002166, at *4.

71 Lanelogic, Inc. v. Great Am. Spirit Ins. Co., No. 3-08-CV-1164-BD, 2010 WL 1839294, at *5 (N.D. Tex. 2010).

72 Id.

73 Id., at *5 (quoting Piatkowski v. Abdon Callais Offshore, L.L.C., No. Civ. A. 99–3759, 2000 WL 1145825, at *2 (E.D. La. Aug.11, 2000)).

74 See generally id.

75 OneBeacon Ins. Co., 2013 WL 6002166, at *3 (internal citations and quotation marks omitted).

76 Id. at *5.

77 Compare OneBeacon Ins. Co., 2013 WL 6002166, at *6 with Lanelogic, 2010 WL 1839294, at *7.

78 Skogen v. RFJ Auto Group, Inc. Emp. Benefit Plan, No. 4:19-CV-585-SDJ-KPJ, 2020 WL 5039101, at *3 (E.D. Tex. 2020).

79 Id.