Last week, the United States Supreme Court and Texas Supreme Court issued several high-profile opinions as they cleared the dockets from last year’s terms. With so many rulings issued at once, it could be easy to miss an opinion from the Texas Supreme Court with important practical implications for the attorney-client privilege under Texas law — in particular, the scope of protection for communications by a “lawyer’s representative.”
In University of Texas System v. Franklin Center for Government and Public Integrity, the Court held that the attorney-client privilege shields communications by an independent third party hired for the “significant purpose” of assisting counsel in the rendition of legal services. This protection is not limited to persons with whom a lawyer or client have a formal employer-employee relationship, nor does it hinge on contractual formalities. Instead, the privilege analysis focuses on the purpose and confidentiality of the communications.
This case arose from a request under the Texas Public Information Act, targeting an investigation of student admissions at the University of Texas at Austin. The request sought access to documents provided to and prepared by Kroll Associates, an independent firm hired by the UT system general counsel to conduct an investigation. UT argued that the Kroll materials were privileged as confidential communications “between the client’s lawyer” (UT’s general counsel) and “the lawyer’s representative” (Kroll) made to facilitate the rendition of legal services.
The trial court agreed with UT’s position that it could withhold the requested information as protected by the attorney-client privilege. But the court of appeals reversed, concluding that UT failed to meet its burden to prove Kroll was a “lawyer’s representative.” In so holding, the court of appeals reasoned that the Kroll materials did not contain legal advice, Kroll did not provide legal services to UT and Kroll’s investigation was not performed to advise UT of facts that would expose UT to legal liability.
Texas Supreme Court Decision
The Texas Supreme Court reversed the court of appeals’ ruling and held that: (1) Kroll acted as a “lawyer’s representative” in conducting the investigation, (2) the disputed documents were within the attorney–client privilege, (3) UT did not waive the privilege by disclosing certain disputed documents to Kroll, but (4) the publication of Kroll’s ultimate report waived the attorney–client privilege to the extent that the report directly quoted from or otherwise disclosed a “significant part” of any specific documents.
The Court’s analysis started by recognizing that Texas Rule of Evidence 503 safeguards “communications that are between and among the lawyer, the client, and their respective representatives.” The primary question here was whether Kroll qualified as a “lawyer’s representative,” which Rule 503 defines as “one employed by the lawyer to assist in the rendition of professional legal services.”
Construing this text, the Court held that a person “does not qualify as a lawyer’s representative merely by incidentally providing such assistance in the course of employment. … Rather, assisting in the rendition of professional legal services must be a significant purpose for which the representative was hired in the first instance.”
Applying this standard, the Court held that Kroll was a “lawyer’s representative.” The agreement between UT and Kroll placed Kroll’s investigation under the direction of UT’s general counsel, and it imposed detailed confidentiality obligations on Kroll. These contract terms helped inform the Court’s inquiry but were not dispositive.
The Court also conducted an overall assessment of the formation of the relationship between UT and Kroll and the purpose of the engagement. Kroll was brought in by UT’s general counsel to assist with rendering legal services, and Kroll’s work helped the general counsel evaluate UT’s compliance with legal standards. Therefore, Kroll was acting as a “lawyer’s representative.”
Finally, as to the documents provided to and prepared by Kroll, the Court held that the publication of Kroll’s final report did not operate as a total waiver of the privilege. Nevertheless, Kroll’s public statements could waive the privilege to the extent they revealed a “significant part” of any underlying documents. Therefore, the Court remanded the case for the trial court to determine in the first instance which, if any, of the withheld documents were disclosed in “significant part.”
This case arose in the government context, but it offers important guidance more broadly. Attorneys may encounter many situations — in litigation, internal investigations and otherwise — in which they desire assistance from a third party to assess legal options and potential liability. This decision provides a foundation for arguing that, in appropriate circumstances, communications between a lawyer and a third party are protected from disclosure.
To benefit from this protection, counsel would be wise to document from the beginning of the relationship how a third party will serve a “significant purpose” in assisting with the rendition of legal services and the specific confidentiality obligations of the third party. A court may consider after-the-fact affidavits probative to the extent they shed light on the formation of the relationship. But the most useful evidence will come from the inception of the engagement and show both the reasons for obtaining services from the third party and the scope of the work to be done.
Finally, if information provided to or prepared by a third party will be publicly disclosed, counsel should carefully evaluate the extent of the disclosure. The attorney-client privilege may cover notes and drafts prepared by a lawyer’s representative, but this protection could be lost inadvertently if a public disclosure encompasses a “significant part” of those materials.
Jason Jordan is a partner in Haynes Boone’s appellate practice and co-chair of the firm’s litigation practice. His experience spans all stages of dispute resolution, including pre-suit analysis and risk management, filing and defending against trial court and arbitration proceedings, and preparing briefing and presenting oral arguments to state and federal courts of appeals.
Ryan Paulsen is a counsel in Haynes Boone’s appellate practice. A former clerk for the Texas Supreme Court, he represents clients in state and federal appeals.