In Re Cooper

OPINION

BURGESS, Justice.

We consider whether the trial court abused its discretion in denying a motion for protection, which was sought to prevent disclosure of communications asserted to be protected by David Louis Cooper’s attorney-client privilege. The trial court found Cooper waived the privilege when he executed an assignment of his claims against his insurers. We conclude the trial court abused its discretion in finding Cooper waived his privilege and ordering Cooper’s attorneys to produce their file materials from his previous lawsuit, thereby requiring disclosure of privileged communication. Because Cooper has no adequate remedy at law, we conditionally grant the writ of mandamus.

After Harold Joseph obtained a judgment in an automobile personal injury suit against Cooper in excess of his insurance policy limits, Cooper assigned his claims against his insurers (Allstate Insurance Company and Allstate County Mutual Insurance Company (“Allstate”)) to Joseph. Joseph then filed a “Stowers” case against Allstate, and that suit is the underlying *208cause in which Cooper seeks a writ of mandamus.

Mandamus will issue only to correct a clear abuse of discretion or to correct the violation of a duty imposed by law when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992)(orig.proceeding). However, appellate review affords limited deference to the trial court if the mandamus proceedings arise from the interpretation of legal rules. Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 225 (Tex.1992)(orig.proeeeding)(citing Walker v. Packer, 827 S.W.2d at 840).

Here, the trial court found Cooper waived his attorney-client privileges by executing the following assignment:

I, the undersigned, David Louis Cooper ..., hereby assign, grant, and convey all rights, title and interest in and to any causes of action that I may have against Allstate Insurance Company, Allstate County Mutual Insurance Company, their agents, employees, and servants, arising out of, or by virtue of, my insurance policy or policies, or claims made by HAROLD JOSEPH AND MARY JOSEPH ... against me, including but not limited to, any causes of action I may have pursuant to the Stower’s Doctrine, Texas Insurance Code, breach of contract, or any other common law fraud, misrepresentation, or other cause of action.

In so finding, the trial court was required to interpret legal rules, i.e., Texas Rules of Evidence 503 and 511.

As noted by the Texas Supreme Court, the attorney-client privilege found in Rule of Evidence 503 facilitates free and open communication between attorney and client, and assures that the communication will remain confidential in order to promote effective legal services, which “in turn promotes the broader societal interest of the effective administration of justice.” Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex.1993). Under Rule 503, the privilege applies unless certain exceptions exist. For example, the privilege does not apply if the services of an attorney were sought in furtherance of a crime or fraud. Tex.R. Evid. 503(d). Here, the trial court did not find a Rule 503(d) exception existed and neither party so contends. The privilege, moreover, may be waived through voluntary disclosure or consent to disclosure under Evidence Rule 5111. Apparently determining Cooper’s execution of the assignment to be such a voluntary disclosure or consent to disclosure, the trial court stated:

Well, let me say this: It makes no sense to me to say that you can assign a Stowers claim without waiving the privilege because if that’s not part and parcel of the deal, then you don’t have an effective assignment.
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And the Court’s ruling is ... that the ... attorney/client privilege is waived-*209slash-assigned as an integral and fundamental part of the assignment of the Stowers claim, ... the rationale of the Stowers claim being the claim that Allstate breached its duty to ... Mr. Cooper ... by failing to — to take proper steps to secure the resolution of the case within the policy limits.

However, the assignment’s language does not provide for Cooper to waive or assign any right he had to assert his attorney-client privilege.2 It does not provide for him to voluntarily disclose or consent to disclosure of any significant part of the matters protected by his attorney-client privilege. Nor does it even provide for Cooper to cooperate as to matters giving rise to his claims against his insurers. In addition, Joseph’s attorney testified that Allstate had already rejected the Stowers demand before he began discussions with Cooper’s attorneys. He had been dealing directly with Allstate. Under these circumstances, we find that the trial court abused its discretion in finding Cooper’s assignment to be a waiver of his attorney-client privilege against disclosure.

Joseph further argues Cooper’s privilege was waived when his attorneys disclosed file materials to Allstate’s defense attorneys in the Stowers action. The record, however, does not support Joseph’s waiver contention. At the hearing on the motion for protection, Cooper’s attorney stated Allstate’s attorneys had received copies of communications to Cooper that also had been copied to Allstate, but that copies of communications individually with Cooper had been redacted. In his statement of facts, Joseph says Cooper’s attorneys’ Objections to Subpoena Duces Tecum reveal their file had been provided to Allstate’s attorneys. However, a complete reading of the objections also shows Cooper’s attorneys stated the file provided to the Allstate attorneys had been redacted to protect confidential communications privileged from disclosure by the attorney-client privilege. Here, the record does not show that any significant portion of the privileged materials were disclosed. See Berger v. Lang, 976 S.W.2d 833, 837 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Thus, Cooper’s attorney-client privilege was not waived.

Even if trial court abused its discretion, mandamus will issue only if there is no other adequate remedy by law. See Walker, 827 S.W.2d at 840. And here, there is not. As the Texas Supreme Court stated:

[A] party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error. This occurs when the trial court erroneously orders the disclosure of privileged information which will materially affect the rights of the aggrieved party, such as documents covered by the attorney-client privilege .... As we noted in Crane [ v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959) ]: “After the [privileged documents] had been inspected, examined and reproduced ... a holding that the court had erroneously issued the order would be of small comfort to rela-tors in protecting their papers.”

Walker, 827 S.W.2d at 843 (some citations omitted).

Therefore, we conditionally grant the writ and direct the trial court judge to modify his order in accordance with this opinion. The writ will issue only should he fail to do so.

WRIT CONDITIONALLY GRANTED.

. Rule 511. Waiver of Privilege By Voluntary Disclosure

A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or
(2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person’s character or character trait insofar as such communications are relevant to such character or character trait.

TexR. Evid. 511.

. Certainly assignments could and, perhaps, should include such a waiver.