We have a case in which we have been unable to locate a defendant charged with a felony offense for quite some time. The defense attorney has informed us that he will bring the defendant in with a certain plea agreement. Is the client's location covered by the attorney-client privilege even when there is an outstanding warrant out for the individual for failures to appear?

That is an excellent question. Rule 503(b)(2) would seem to say it is privileged. But there are a number of CCA cases that basically gut that provision for instances like whether a defendant was competent, whether a defendant was in town on the day of a murder, etc.

Here are some examples:

Brasfield v. State¸600 S.W.2d 288, 295 (Tex. Crim. App. 1980)(attorney testimony that defendant in city where murder occurred on day of murder did not violate attorney client privilege where not revealed to jury that he was defendant’s attorney).

Jackson v. State, 624 S.W.2d 306, 309 (Tex. App.–Dallas 1981, no pet.)(attorney testimony that he prepared affidavit of non-prosecution signed by victim did not violate attorney client privilege).

Austin v. State, 934 S.W.2d 672, 673, (Tex. Crim. App. 1996)(attorneys may testify about information they possess so long as no communication is revealed, attorney’s communication of trial setting to client not privileged).

Manning v. State, 766 S.W.2d 551, 553, 558 (Tex. App.–Dallas), opinion adopted, 773 S.W.2d 568 (Tex. Crim. App. 1989)(attorney’s testimony that he represented defendant at trial and that defendant had a rational factual and legal understanding of the proceedings did not violate attorney client privilege).

Russell v. State, 598 S.W.2d 238, 252-53 (Tex. Crim. App. 1980)(attorney’s testimony that he represented defendant in a guilty plea, that defendant signed plea papers, and that attorney had not forged defendant’s signature did not violate attorney client privilege).

Church v. State, 552 S.W.2d 138, 141-42 (Tex. Crim. App. 1977)(attorney client privilege not violated by testimony that trial counsel was present at a live lineup).

Lopez v. State, 651 S.W.2d 830, 838 (Tex. App.–San Antonio 1983, pet. ref’d)(defendant’s former attorney testified he was at the crime scene did not violate attorney client privilege).

This message has been edited. Last edited by: JohnR,

Note that under the disciplinary rules, the defense lawyer may demand you obtain a court order before revealing the client's whereabouts. Tex. Disp. R. Prof. Cond. 1.05