Top Texas Court to Review UT’s Attorney-Client Privilege Case

The University of Texas at Austin was granted review Friday by the state’s top court to decide whether an independent investigator is a “lawyer’s representative” for purposes of attorney-client privilege.

The Texas Rules of Evidence define a lawyer’s representative broadly, as a person employed by the lawyer to assist in “the rendition of professional legal advice.” However, the court of appeals “improperly” required a higher standard of evidence to show that independent non-attorney consultants count as a lawyer’s representative, UT Austin said in its petition for review.

UT Austin general counsel hired Kroll Associates to investigate allegations of improper admissions practices at the school. The 2015 Kroll report contained evidence that former UT Austin president Bill Powers had ordered certain undergraduate applicants admitted, over the objections of the admissions office. Kroll concluded that this didn’t violate a law, rule, or policy, because it found no evidence of improper quid pro quo by UT officials.

Following the report, the Franklin Center for Government and Public Integrity made a request under the Texas Public Information Act to view documents underlying Kroll’s investigation. UT Austin resisted disclosure, arguing attorney-client privilege applied because Kroll acted as a lawyer’s representative, and the Family Educational Rights and Privacy Act.

The trial court granted UT Austin summary judgment, but the Texas Court of Appeals, Third District, reversed and said the documents weren’t protected by attorney-client privilege.

The case deserves review because “it involves the confidentiality of communications underlying a major governmental investigation,” the university said. UT Austin stressed that although the report was made public, nobody was given access to the “hundreds of thousands” of pages containing student records and staff interviews that Kroll reviewed to make the report.

The Franklin Center contends that the university hasn’t been able to prove that Kroll’s investigation was primarily for the purpose of giving legal advice to UT general counsel. “It is UT’s burden to prove each element of the claimed privilege, and it is entitled to no presumptions,” the center said.

The case is set for oral argument Jan. 11.

UT Austin is represented by the attorney general’s office. The Franklin Center is represented by Gregor Wynne Arney PLLC.

The case is Franklin Ctr. for Gov’t. & Pub. Integrity v. Univ. of Tex. Sys., Tex., No. 21-0534, 9/30/22.