822 S.W.2d 261 (Tex. App.—Corpus Christi 1991, writ denied)
Perez v. Kirk & Carrigan is a cornerstone professional-responsibility case that illustrates how an attorney–client relationship can arise by implication when corporate counsel interviews a company employee after a catastrophic incident.
Can an attorney–client relationship—and the attendant duties of loyalty and confidentiality—arise by implication between corporate counsel and a company employee based on the attorneys' assurances and conduct, and if so, does voluntarily disclosing the employee's confidential statement to a prosecutor bar summary judgment for the attorneys on claims such as breach of fiduciary duty and negligence?
In Texas, an attorney–client relationship may be established by an express or implied contract; no formal retainer or fee agreement is necessary. The relationship turns on the parties' conduct and the putative client's reasonable belief that the attorney is acting as his lawyer, coupled with the attorney's manifestations and assurances. Once formed, the relationship imposes fiduciary duties on the attorney, including the duty of loyalty and the duty to preserve client confidences. Communications made for the purpose of obtaining or facilitating legal advice are protected by the attorney–client privilege and may not be disclosed without the client's informed consent, absent a recognized exception. While Texas recognizes certain privileges and immunities for attorneys in the context of judicial proceedings, those protections do not confer categorical immunity for extra-judicial, voluntary disclosures to third parties that breach fiduciary duties or the attorney–client privilege. Summary judgment is improper where evidence raises a genuine issue of material fact on the existence of an attorney–client relationship, breach, causation, or damages.
The court of appeals reversed the trial court's summary judgment for Kirk & Carrigan and remanded. Evidence created a fact issue as to whether an implied attorney–client relationship existed between the attorneys and Perez, whether the lawyers breached duties of loyalty and confidentiality by disclosing his statement to the district attorney, and whether any privileges or immunities shielded that conduct as a matter of law.
Perez is a leading case on implied attorney–client relationships, attorney confidentiality, and corporate-counsel practice. It teaches that corporate attorneys interviewing employees after an incident must provide clear Upjohn warnings—identifying the organization as the client, explaining that the lawyer does not represent the employee personally, and clarifying that the company controls the privilege and may disclose the employee's statements. Assurances of confidentiality or suggestions of personal representation can create fiduciary duties and privilege in favor of the employee, exposing counsel and the firm to malpractice and breach-of-duty claims if confidences are later revealed. The case also signals the limits of attorney immunity for extra-judicial conduct, especially voluntary disclosures to third parties that are not necessary to the representation of the organizational client.