Opinion
No. 21-0534
06-30-2023
The UNIVERSITY OF TEXAS SYSTEM, Petitioner, v. The FRANKLIN CENTER FOR GOVERNMENT AND PUBLIC INTEGRITY and Jon Cassidy, Respondents
Joseph Robert Larsen, Houston, for Respondents. Matthew R. Entsminger, Austin, for Petitioner Ken Paxton, Attorney General of Texas. Jennifer Settle Jackson, Austin, Lanora C. Pettit, Atty. Gen. W. Kenneth Paxton Jr., Brent Webster, Houston, Bill Davis, Austin, Judd E. Stone II, Benjamin Mendelson, for Petitioner University of Texas System.
Joseph Robert Larsen, Houston, for Respondents.
Matthew R. Entsminger, Austin, for Petitioner Ken Paxton, Attorney General of Texas.
Jennifer Settle Jackson, Austin, Lanora C. Pettit, Atty. Gen. W. Kenneth Paxton Jr., Brent Webster, Houston, Bill Davis, Austin, Judd E. Stone II, Benjamin Mendelson, for Petitioner University of Texas System.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Busby, Justice Bland, Justice Huddle, and Justice Young joined. The overarching issue in this case is whether documents underlying an external investigation into allegations of undue influence in a public university's admissions process are protected by the attorney–client privilege and are thus exempt from disclosure under the Texas Public Information Act. We hold that (1) the investigator acted as a "lawyer's representative" in conducting the investigation; (2) the disputed documents fall within the attorney–client privilege, as they were made between privileged persons and were for the purpose of facilitating the rendition of legal services to the university; (3) the university did not waive the privilege by disclosing some of the disputed documents to the investigator; and (4) to the extent the investigator's final report directly quoted from or otherwise disclosed "any significant part" of the disputed documents, publication of the report waived the university's attorney–client privilege as to those specific documents. Because the court of appeals held that all the underlying documents must be disclosed, we reverse its judgment and remand to the trial court for further proceedings.
I. Background
The facts of this case are largely undisputed. In 2013, a member of The University of Texas System Board of Regents and members of the media raised questions about the possibility of undue influence in the admissions process at UT Austin. The System's then-Chancellor, Francisco Cigarroa, directed the System's General Counsel, Daniel Sharphorn, to conduct an internal investigation to determine whether the allegations had merit. After interviewing admissions officials and reviewing admissions data, Sharphorn concluded that there was no evidence of improper influence.
Shortly after the System released Sharphorn's report to the public, a former admissions official reported to Sharphorn, as well as to Chancellor Cigarroa and the Executive Vice Chancellor for Academic Affairs, that UT Austin's President occasionally exerted pressure on the admissions office to admit applicants with lesser qualifications in response to external influences. At Chancellor Cigarroa's direction, Sharphorn hired Kroll Associates, an independent firm, "to more thoroughly and comprehensively review the admissions process, investigate allegations of external pressures on the admissions process, and determine whether any factors other than individual merit ... influence decisions to admit or deny applicants to UT Austin."
During its investigation, which focused on undergraduate, law school, and business school admissions, Kroll obtained thousands of documents from UT Austin—including approximately 9,500 emails—and conducted interviews with relevant individuals. In 2015, Kroll completed its investigation and presented a 101-page final report to Sharphorn and then-Chancellor William H. McRaven.
The Kroll Report, which contains findings, recommendations, and suggestions for future best practices, was published on UT Austin's website. In summary, the Kroll Report discusses several incidents of attempted external influence on admissions but concludes that UT Austin "appears to have violated no law, rule, or policy (with the possible exception of the prohibition against legacy admissions)." Kroll also found "no evidence that the Dean [of the Law School] or others at the Law School acted improperly or in any way compromised the integrity of the admissions process." As to the McCombs School of Business, its Dean told Kroll that "attempts to influence the process externally do occur" but officials had "never felt pressured by external forces." And as to university admissions generally, Kroll concluded that UT Austin's use of "holds" resulted in a "relatively small" number of "arguably less-qualified applicants who benefitted from the process."
Unsatisfied with the Kroll Report, Franklin Center for Government and Public Integrity reporter Jon Cassidy sought complete access to the documents underlying the report to determine whether Kroll omitted any significant information from it. Cassidy submitted a Texas Public Information Act request to the System for "[a]ll emails, interview transcripts and other documents provided to or obtained by Kroll investigators as part of their audit of admissions at UT Austin." The System resisted disclosure and sought an Attorney General decision on the withheld documents, see TEX. GOV'T CODE § 552.301(a), asserting that they are excepted from disclosure under the Act. Along with its request, the System submitted a representative sample of the information at issue. See id. § 552.301(e)(1)(D) (allowing submission of a representative sample if a voluminous amount of information is requested). In a letter opinion, the Attorney General concluded that many, but not all, of the requested documents are excepted from disclosure. Relevant here, the Attorney General agreed with the System's position that it may withhold some of the requested information on the ground that it is protected by the attorney–client privilege.
The System sued the Office of the Attorney General to challenge the portions of the ruling that ordered disclosure. The Franklin Center and Cassidy (collectively, Franklin) intervened, seeking a declaration that all requested documents are public information and a writ of mandamus compelling the System to disclose the unredacted documents. While the litigation was pending, the System created a privilege log identifying and describing the information it had provided to the Attorney General as part of its representative sample. Although Franklin originally sought all documents obtained and created by Kroll (totaling 625,000 pages), Franklin ultimately narrowed the scope of its request to only the 744 documents contained in the privilege log, which included:
(1) Internal emails exchanged between UT System and UT Austin lawyers and clients, discussing or transmitting legal advice, that were shared with Kroll during the investigation;
(2) Interview questions and notes created by Kroll during Kroll's interviews of UT System and UT Austin employees and officials; and
(3) Draft redlined communications from General Counsel Sharphorn to
The privilege log describes each of these emails, labeled UTS-00001 to UTS-00146, as a confidential communication made for the purpose of giving or receiving legal advice.
The documents in the second category, comprising the vast majority of the requested documents, are labeled UTS-00147 to UTS-00722 and UTS-00727 to UTS-00734.
interviewees that were shared with Kroll.
The last category consists of the documents labeled UTS-00723 through UTS-00726.
The parties filed cross-motions for summary judgment. The System argued that all the documents are protected by the attorney–client privilege and that the privilege was not waived because Kroll acted as a "lawyer's representative." Franklin, however, asserted that the System waived the privilege by releasing the Kroll Report and, in any event, Kroll was not acting as a "lawyer's representative." After reviewing the disputed documents in camera , the trial court determined that they are privileged and granted the System's motion for summary judgment.
The court of appeals reversed and rendered judgment requiring disclosure of all the privilege-log documents, holding that Kroll was not a lawyer's representative. 664 S.W.3d 371, 383–84 (Tex. App.—Austin 2020). In so holding, the court of appeals concluded that the Kroll Report did not contain legal advice, Kroll did not provide legal services to the System, and Kroll's investigation was not performed to advise the System of facts that would expose it to legal liability. Id. at 381–82. We granted the System's petition for review.
II. Discussion
The Texas Public Information Act "guarantees access to public information, subject to certain exceptions." Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P. , 343 S.W.3d 112, 114 (Tex. 2011). Upon receiving a request for public information, a governmental body must promptly produce the information for inspection, duplication, or both, TEX. GOV'T CODE § 552.221, unless an exception applies. See In re City of Georgetown , 53 S.W.3d 328, 331 (Tex. 2001). The Act is to be liberally construed in favor of granting requests for information. TEX. GOV'T CODE § 552.001(b). Whether information qualifies as "public information" under the Act and whether an exception applies are questions of law. See A & T Consultants, Inc. v. Sharp , 904 S.W.2d 668, 674 (Tex. 1995).
Relevant to the circumstances here, the Act provides that a completed investigation made by or for a governmental body—like the Kroll investigation—is public information and not excepted from disclosure unless it is expressly made confidential under "other law." TEX. GOV'T CODE § 552.022(a)(1). The Texas Rules of Evidence are "other law" for purposes of Section 552.022. See City of Georgetown , 53 S.W.3d at 329. The System contends that the requested documents are exempt from disclosure under the "made confidential by other law" exception because they fall within the attorney–client privilege, which is contained in the rules of evidence.
A. General Parameters of Privilege
The attorney–client privilege exists to facilitate free and open communication between attorneys and their clients. See Paxton v. City of Dallas , 509 S.W.3d 247, 259–60 (Tex. 2017). The privilege "applies with special force" in the governmental context because "public officials are duty-bound to understand and respect constitutional, judicial and statutory limitations on their authority; thus, their access to candid legal advice directly and significantly serves the public interest." Id. at 260.
Franklin asks the Court to reconsider whether the privilege should apply with special force in the governmental context. We decline this invitation.
In Texas, the attorney–client privilege is governed by Texas Rule of Evidence 503. Under this rule, a "client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." TEX. R. EVID. 503(b)(1). The privilege protects such communications that are between and among the lawyer, the client, and their respective representatives. See id. ; In re XL Specialty Ins. Co. , 373 S.W.3d 46, 49–50 (Tex. 2012). A communication is "confidential" if it is not intended to be disclosed to third persons other than (1) those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or (2) those reasonably necessary for the transmission of the communication. TEX. R. EVID. 503(a). The presence of third persons during the communication will destroy confidentiality, and communications intended to be disclosed to third parties are not generally privileged. See id. Further, the person who holds the privilege—the client—waives it if "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." TEX. R. EVID. 511(a)(1).
The privilege provides:
(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:
(A) between the client or the client's representative and the client's lawyer or the lawyer's representative;
(B) between the client's lawyer and the lawyer's representative;
(C) by the client, the client's representative, the client's lawyer, or the lawyer's representative to a lawyer representing another party in a pending action or that lawyer's representative, if the communications concern a matter of common interest in the pending action;
(D) between the client's representatives or between the client and the client's representative; or
(E) among lawyers and their representatives representing the same client.
Tex. R. Evid. 503(b)(1).
At the core of the privilege is the notion that the communications are "made for the purpose of facilitating the rendition of professional legal services." Huie v. DeShazo , 922 S.W.2d 920, 922 (Tex. 1996). As described above, the attorney–client privilege is intended to encourage clients to provide counsel with "full and frank" disclosures so that the resulting legal advice is accurate and helpful, "thereby promot[ing] broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Without the privilege, clients may withhold information, limiting the effectiveness of legal representation. With candid communication, attorneys can provide optimal legal representation, and clients can obtain the advice they need. However, the mere copying of legal counsel, in and of itself, does not transform an otherwise nonlegal communication into one made for a legal purpose. See Tex. Att'y Gen. Op. No. JC–0233, at 6 (2000).
B. Kroll as a Lawyer's Representative
Whether Kroll qualifies as a "lawyer's representative" is at the heart of most of Franklin's challenges to the privilege's applicability. If Kroll does not so qualify, then the disputed documents in category 2—the interview questions and notes created by Kroll during Kroll's interviews of UT System and UT Austin employees and officials—do not qualify for the privilege in the first instance, and the System waived the privilege as to the other two categories of documents—which involved internal emails and draft communications between UT System and UT Austin lawyers and clients—by sharing them with Kroll.
To the extent Franklin argues that Kroll's interview notes do not qualify as "communications," we disagree. See Upjohn , 449 U.S. at 386, 101 S.Ct. 677 (holding that communications between corporate employees and general counsel during an internal investigation of "questionable payments" by the corporation, including general counsel's questionnaires sent to employees and notes of interviews reflecting their responses to the questions, were protected by the attorney–client privilege); see also Restatement (Third) of Law Governing Lawyers § 69 cmt. h ( Am. L. Inst. 2000) (the privilege "applies both to communications when made and to confidential records of such communications, such as a lawyer's note of the conversation").
Rule 503 defines "lawyer's representative" as "one employed by the lawyer to assist in the rendition of professional legal services." TEX. R. EVID. 503(a)(4)(A). The definition itself confirms that one does not qualify as a lawyer's representative merely by incidentally providing such assistance in the course of employment. Id. Rather, assisting in the rendition of professional legal services must be a significant purpose for which the representative was hired in the first instance. This is consistent with the privilege's general applicability to communications between qualified persons if obtaining legal assistance is "one of the significant purposes" of the communication. RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS § 72 reporter's note cmt. c ( AM. L. INST. 2000) ("In general, American decisions agree that the privilege applies if one of the significant purposes of a client in communicating with a lawyer is that of obtaining legal assistance."); see also In re Fairway Methanol LLC , 515 S.W.3d 480, 489 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (holding that Texas law "does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services").
In support of its assertion that Kroll acted as a "lawyer's representative," the System provided the Agreement between itself and Kroll, the Kroll Report, the privilege log, and affidavits from Sharphorn, Chancellor McRaven, and Assistant General Counsel Ana Vieira Ayala. We describe this evidence in detail below.
1. The Evidence
The Agreement between the System and Kroll reflects that Kroll's investigation was to "be conducted under the direction of the U.T. System General Counsel [Sharphorn]" and that its purpose was "to determine if the conduct of U.T. officials is beyond reproach." More specifically, the investigation's objective was to ascertain whether UT Austin's admissions decisions were "made for any reason other than an applicant's individual merit as measured by academic achievement and officially established personal holistic attributes, and if not, why not." Additionally, the Agreement obligated Kroll to identify "[a]ny competing evidence or premise as to the basis for admissions ... so it can be openly debated." The Agreement further specifies that "[a] final report shall be submitted by [Kroll] to the U.T. Austin General Counsel that describes the investigation methods employed and reports [Kroll's] factual findings." Finally, the Agreement contains detailed confidentiality provisions obligating Kroll, among other things, to "hold University Records in confidence" unless disclosure is otherwise authorized by the Agreement, the System, or applicable law, as well as to maintain the confidentiality of all materials "prepared by [Kroll] in connection with the Work." All notices and other communications provided for in the Agreement were directed to be delivered to Sharphorn.
Scott C. Kelley, the System's Executive Vice Chancellor for Business Affairs, signed the Agreement on the System's behalf. The second and third amendments to the Agreement were "[a]pproved as to content" by Sharphorn. The fourth amendment was "[a]pproved as to content" by James M. Phillips as "Senior Associate General Counsel and Managing Attorney."
The final Kroll Report, which was released to the public, includes the "Scope of Work" provision of the Agreement discussed above as an appendix, reiterating that Kroll's task was to investigate whether UT Austin's handling of admissions decisions was "beyond reproach" and whether admissions decisions were being made based on improper considerations. However, comprehending the nature and extent of Kroll's involvement requires a fuller understanding of the antecedent events that led to its engagement. About three months before engaging Kroll, the System had completed its own internal admissions investigation following concerns raised by the media and a member of the Board of Regents regarding possible undue influence by state legislators on UT Austin's admissions process. Nonetheless, "the focus of the inquiry was very narrow," limited only to law school admissions and "how letters of recommendation from legislators, submitted outside of the normal application process, [were] handled and processed." Only after Sharphorn had conducted several interviews and made significant progress in the investigation did the System decide to expand the focus of the inquiry to include undergraduate admissions. As a result, the majority of Sharphorn's internal investigation was "narrowly focused on what the President's Office did with letters of recommendation."
Sharphorn concluded that there was no evidence of a "quid pro quo in exchange for admissions decisions," no evidence "of a systematic, structured, or centralized process of reviewing and admitting applicants recommended by influential individuals," and no evidence of overt pressure on the admissions office staff to admit applicants based on the recommendations of persons of influence.
However, after the internal investigation was completed, new information surfaced regarding UT Austin's handling of external pressures on admissions that led Chancellor Cigarroa to conclude it was necessary to retain an independent firm "to more thoroughly and comprehensively review the admissions process." Although Sharphorn's internal investigation had been primarily concerned with law school admissions and recommendation letters, the Board of Regents "subsequently authorized the investigation with particular focus on the undergraduate program, the law school, and the graduate business school." Chancellor Cigarroa also had concerns regarding the candor and honesty of university officials during the internal investigation, prompting his "request[ ] that Kroll also examine whether the university officials interviewed during the prior Admissions Inquiry were fully candid and honest in response to the questions asked of them by Dan Sharphorn." Specifically "[o]f concern was the fact that, during the [internal investigation], there were no disclosures [to Sharphorn] of ‘holds’ and ‘watch lists.’ "
In conducting its investigation, Kroll "maintained consistent and open communication with the UT-System General Counsel, the General Counsel of UT-Austin, the General Counsel for the Board of Regents, and other appropriate designees as needed to facilitate the investigation and cooperation of all parties." Further, Kroll "acted under the direction of [Sharphorn]." The investigation included a "review [of] specific state laws, court decisions, administrative rules, Board of Regents Rules, and official university policies that govern the admissions processes," which provided the necessary backdrop for Kroll's examination of the university's admissions practices.
Ultimately, Kroll concluded that practices involving "hold lists" and meetings between the president's office and the admissions office "result[ed] each year in certain applicants receiving a competitive boost or special consideration." However, as noted, Kroll determined that UT Austin "appears to have violated no law, rule, or policy (with the possible exception of the prohibition against legacy admissions)."
Sharphorn prepared an affidavit in which he attested that he hired Kroll to conduct an independent investigation into concerns raised about UT Austin's admissions practices. Sharphorn highlighted that the focus of Kroll's investigation was on the conduct of UT officials and employees in performing admissions services, not on external recommenders. He stated that he advised Kroll at the outset of the investigation "to notify [Sharphorn] if anything came to light that raised any serious concerns, such as evidence of a quid pro quo or a threat from a recommender," and that Kroll never reported any such concerns. He further stated that when Kroll presented the final report, Chancellor McRaven reviewed the results and notified the System's Board of Regents by letter of his decision that UT Austin's President "would not be subject to disciplinary action because Kroll reported that there was no violation of law, rule, or policy, and the Chancellor determined that his conduct did not rise to the level of willful misconduct or criminal activity." Sharphorn attested that Chancellor McRaven also convened a Blue Ribbon Panel of former chancellors and university presidents to review UT Austin's admissions process in light of the Kroll Report and its recommendations. Ultimately, the Board of Regents adopted a new admissions policy.
Chancellor McRaven's affidavit similarly described his receipt of the Kroll Report and the actions he took in response. In the affidavit, Chancellor McRaven averred that after reading the report several times, he "sought legal advice" from Sharphorn and, "[a]fter careful review and consideration," sent the above-referenced letter to the Board of Regents rendering his decision that UT Austin's president would not be subject to disciplinary action "because Kroll reported that there was no violation of law, rule, or policy, and I, therefore, determined that his conduct did not rise to the level of willful misconduct or criminal activity." Chancellor McRaven then described the panel he appointed to analyze the Kroll Report's recommendations and the report issued by the panel.
Finally, Ayala's affidavit highlighted that Kroll acted under Sharphorn's direction and emphasized the confidentiality provisions in the Agreement. Ayala also averred that the communications listed in the privilege log "were all made for the purpose of facilitating the rendition of professional legal services" and "were not intended to be disclosed to third parties other than those to whom disclosure was made to further the rendition of professional legal services."
2. Analysis
In analyzing the relationship between the System and Kroll, we focus on the formation of the relationship and the purpose of Kroll's engagement at the time of employment. The terms of the engagement agreement and the surrounding circumstances guide our inquiry. We hold that, collectively, the Agreement, privilege log, and Kroll Report demonstrate that Kroll was (1) "employed by" Sharphorn (2) "to assist in the rendition of professional legal services." Thus, Kroll was acting as a "lawyer's representative" as that term is defined in Rule 503. As discussed below, the affidavits merely confirm this conclusion, and Franklin's arguments to the contrary are unpersuasive.
First, Franklin asserts that Kroll is an independent contractor and not an agent of the System. To the extent Franklin contends that a "lawyer's representative" is limited to a person with whom a lawyer or client has a formal employer–employee relationship, we disagree. The rule does not expressly define the term "employed," so we look to its ordinary meaning unless the text and context indicate a different one. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp. , 520 S.W.3d 887, 893 (Tex. 2017) ; see also In re Silver , 540 S.W.3d 530, 534 (Tex. 2018) (noting that we interpret rules in the same manner as statutes).
Black's Law Dictionary defines "employ" as "to make use of; to hire; to use as an agent or substitute in transacting business; to commission and entrust with the performance of certain acts or functions or with the management of one's affairs." Employ , BLACK'S LAW DICTIONARY (11th ed. 2019); see also Employ , MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed. 2003) ("to make use of," "to use or engage the services of," or "to provide with a job that pays wages or a salary"). Kroll qualifies as "employed by" Sharphorn under this plain meaning. Sharphorn, as Vice Chancellor and General Counsel for the System's Office of General Counsel, attested that he "hired" Kroll to investigate UT Austin's admissions practices, and the evidence is undisputed that Kroll conducted its investigation under Sharphorn's direction. Further, Kroll was contractually obligated to maintain the confidentiality of records that it created, had access to, or received from or on behalf of the System unless otherwise authorized by the university or required by law.
Nothing in the rule indicates that a formal employer–employee relationship is envisioned or required. The focus of the privilege is on the purpose and confidentiality of the communications, rather than the formal title or classification of the "lawyer's representative" as an employee, agent, independent contractor, consultant, or any other designation. See TEX. R. EVID. 503(a)(4) ; see also 1 Paul R. Rice et al., ATTORNEY–CLIENT PRIVILEGE IN THE U.S. § 4:19 (2022) ("If the consultant was directed by the client to communicate with the client's attorney, and it was clear to the consultant that those communications were for the purpose of obtaining legal advice, and therefore, were confidential, the extension of the privilege's protection would place neither the client, the consultant, nor the attorney in a position different than they would have been in had the consultant been a ‘permanent’ employee."). Accordingly, we turn to the crux of the definition and whether Kroll was hired "to assist in the rendition of professional legal services." TEX. R. EVID. 503(a)(4). We conclude that it was.
Franklin places an undue emphasis on formalistic language, insisting that the engagement agreement between Kroll and the System must use specific terminology. According to Franklin, because the Agreement does not explicitly mention legal advice or legal services, Kroll cannot be considered a lawyer's representative. However, as previously noted, the key factor in determining whether a party falls within the definition of a "lawyer's representative" is not the formalities of the contract but rather the substance of the work the representative was hired to perform and its relation to the provision of legal advice. Therefore, we must look beyond the surface language used in the contract and instead evaluate the actual scope of Kroll's work.
Again, Kroll was hired to conduct "an evaluation of the conduct of U.T. ... officials and employees in performing admissions services" and to "determine if the conduct of U.T. officials is beyond reproach." Specifically, Kroll was to determine whether "admissions decisions are made for any reason other than an applicant's individual merit ... and if not, why not." That included a directive to notify Sharphorn promptly of any "evidence of a quid pro quo or a threat from a recommender." The phrase "beyond reproach" is not a superficial or empty expression; it is a guiding principle that reflects the school's commitment to legal compliance, ethical responsibility, and professional accountability. In the context of admissions practices, the phrase "beyond reproach" embodies the notion of legal compliance as a necessary component. Thus, the scope of Kroll's work encompasses an assessment of the university's legal compliance, as well as a consideration of best practices and ethical standards essential to maintaining the integrity of the admissions process. Although the Agreement does not use the phrase "legal advice," "legal assistance," or the like, no such magic words are required. See Paxton , 509 S.W.3d at 260 ; Tex. Att'y Gen. Op. No. JC–0233, at 6 (2000). By striving to be "beyond reproach," the System states a goal that incorporates and also goes beyond legal compliance.
Reproach , Black's Law Dictionary (11th ed. 2019) ("Criticism, blame, or disapproval"); Above Reproach , Burton's Legal Thesaurus (6th ed. 2021) ("Above suspicion, blameless, faultless, guiltless, incontestable, inculpable, indisputable, indubitable, innocent, irrefragable, irrefutable, irreprehensible, irreproachable, noncontroversial, sinless, unanswerable, unblamable, uncensorable, ... unguilty, ... with clean hands"); Be above/beyond reproach , Cambridge Dictionary ("To not deserve any blame").
The Kroll Report confirms that the phrase "beyond reproach" includes legal compliance as a necessary component. In performing its "analysis of applicable laws and policies," Kroll "obtained and analyzed applicable rules of conduct based in state law (i.e., Texas Constitution, Texas Education Code), Rules of the UT-System Board of Regents, and official policies of UT-System and UT-Austin," and it drew conclusions about UT Austin's compliance with those laws, rules, and policies. The report also notes that Kroll conducted a "Best Practices Review" by researching and consulting with experts in the field of university and graduate school admissions. The report thus demonstrates that Kroll's role included both legal compliance as well as the broader considerations of best practices and ethical standards.
Although the dissent acknowledges that "magic words aren't required," post at 302 (Devine, J., dissenting), it simultaneously criticizes the Agreement for failing to "parrot[ ] Rule 503's definition of a lawyer's representative" and not mentioning the attorney–client privilege. Id. at 296. The dissent further faults the Agreement's confidentiality provisions as being essentially limited to maintaining student privacy. Id. Such a narrow view overlooks the comprehensive nature of the confidentiality provisions throughout the Agreement. For instance, Paragraphs 7.1 through 7.4 require Kroll to maintain the confidentiality of all materials it prepared in connection with the work. Those provisions work in conjunction with Paragraph 12.11, which specifically addresses the confidentiality of materials that the System shared with Kroll. Thus, the former provisions ensure confidentiality for category 2 materials, while the latter ensures confidentiality for categories 1 and 3 materials. Finally, Paragraph 9 mandates Kroll to promptly inform the University of any requests or subpoenas related to project information "so that [the System] may seek from a court of competent jurisdiction a protective order or other appropriate remedy to limit the disclosure." This provision mirrors the very action taken by the System here—namely, seeking remedies to restrict disclosure in the ongoing PIA suit. The absence of explicit language mentioning the attorney–client privilege is immaterial to the parties' intent to keep the communications confidential, as is required for the privilege to apply.
The Kroll Report further demonstrates that evaluating the university's compliance with applicable law and policy was a significant and inseparable part of the investigation, not, as the dissent asserts, an "incidental" byproduct. Post at 299 n.50 (Devine, J., dissenting). It appears undisputed that Sharphorn's initial internal investigation was for the purpose of evaluating and advising the System about its legal compliance, and no assertions have been made that the communications underlying that investigation are not privileged. When new allegations from a former admissions official exposed potential shortcomings in that investigation, Kroll was engaged to conduct a more thorough review of the admissions process as part of ongoing efforts to ensure legal compliance. The decision to engage an independent firm indicates continuing concern about both the legal and ethical ramifications of the alleged conduct and an effort to ensure a comprehensive investigation was conducted.
Again, Kroll reviewed applicable statutes, rules, and court decisions and ultimately concluded that no law, rule, or policy was violated. That Kroll engaged in this analysis shows that investigating facts underlying UT Austin's compliance—or lack thereof—with laws, rules, and policies was a significant component of what Kroll was hired to do. By gathering truthful and complete information, Kroll played an indispensable role in enabling Sharphorn to provide a proper legal assessment on how to proceed. Moreover, the concern that Sharphorn's initial internal investigation had not uncovered the full extent of the problem underscores Kroll's role as a lawyer's representative.
Franklin and the dissent argue that the affidavits provided by the System are conclusory and thus provide no support for the conclusion that Kroll was hired to assist with the rendition of legal services. For example, Franklin focuses on a paragraph of Ayala's affidavit that largely parrots the privilege by stating that "[t]he communications listed in [the privilege log] were all made for the purpose of facilitating the rendition of professional legal services" and were intended to be kept confidential. We need not rely on such statements to conclude that Kroll acted as a lawyer's representative.
Moreover, in concluding the Ayala affidavit is "conclusory in all material respects," the dissent downplays the specificity and detail present in the affidavit. Post at 300 (Devine, J., dissenting). While not sufficient in and of itself to establish the privilege's applicability, Ayala's affidavit goes beyond a mere repetition of the privilege. It discusses specific numbered documents in the privilege log, including names of individuals involved and the purpose of those documents. It also states that it was the regular practice of the organization to maintain confidentiality and restrict communications to attorneys and their representatives. Such a statement reflects an awareness of established protocols and procedures within the organization.
Expecting the affidavits to provide a comprehensive account of privileged communications would undermine the very essence of the privilege. Affidavits supporting a privilege claim must strike a delicate balance between providing enough information to establish the existence of a privileged communication while preserving confidentiality.
And while the affidavits were prepared after the fact—as are most affidavits prepared in the litigation context—they are still probative to the extent they shed light on the formation of the relationship between the System and Kroll and the purposes for which Kroll was hired. In short, the Agreement, the Kroll Report, and the affidavits all provide facts underlying Kroll's status as a legal representative, including the reasons it was hired and the scope of the investigation, which involved an assessment of legal compliance. See In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 224 (Tex. 2004) (examining whether a corporate representative's affidavit set forth the factual basis for the attorney–client privilege's applicability). The evidence further establishes that Kroll took direction from Sharphorn, who was intended to and did serve as the System's primary contact with Kroll during the investigation, and that the parties intended to keep the materials created and reviewed by Kroll confidential. The evidence thus goes well beyond conclusory legal assertions that Kroll qualified as a lawyer's representative.
The dissent criticizes Sharphorn's affidavit because it "was prepared in connection with other litigation." Id. at 302 n.60. The fact that the affidavit was prepared in the context of another case is immaterial to whether it sheds light on the issue presented.
We therefore hold that the evidence conclusively demonstrates that Kroll was "employed by [the System's] lawyer to assist in the rendition of professional legal services" and that the communications between Kroll and the System in the course of Kroll's investigation were "made for the purpose of facilitating the rendition of professional legal services" to the System. TEX. R. EVID. 503(b)(1)(A). Taken together, the Agreement, privilege log, Kroll Report, and affidavits show that the System, through Sharphorn, sought assistance from Kroll to better assess its legal obligations and potential liabilities—the exact behavior the privilege seeks to encourage. See E.I. DuPont , 136 S.W.3d at 223 ; Paxton , 509 S.W.3d at 260. Accordingly, and for the additional reasons discussed below, the disputed communications involving Kroll fall within the scope of the attorney–client privilege, and disclosure of otherwise privileged communications to Kroll did not result in a waiver of the privilege.
C. Impact of Public Disclosure of the Kroll Report
Franklin also argues that, because the System publicly disclosed the Kroll Report, the underlying documents do not qualify as "confidential communications" protected by the privilege; alternatively, Franklin argues that the System waived the privilege with respect to those documents by disclosing the report. As to the first argument, a communication is not confidential if it was intended to be disclosed to third persons at the time it was made. See TEX. R. EVID. 503(a)(5). Here, the System does not dispute that it planned to publish the final Kroll Report all along. The "Scope of Work" provision in the Agreement envisioned such publication, stating that information "that could be used to identify a student and derived from FERPA Records will be protected accordingly and will not be disclosed as part of the investigators' Final Report." Additionally, the Agreement explicitly stated that the investigation's purpose, in part, was to identify "[a]ny competing evidence or premise as to the basis for admissions ... so it can be openly debated."
However, the record is devoid of any evidence that the System intended to publicly release the underlying documents when it provided them to Kroll or authorized him to create additional records. To the contrary, as discussed, the Agreement required Kroll to maintain the confidentiality of information obtained during the investigation. Disclosure of the Kroll Report itself, even assuming such disclosure was planned from the outset, does not by itself strip all underlying communications of their "confidential" status or amount to a wholesale waiver of the privilege as to those documents.
It is possible, however, that publication of the Kroll Report resulted in a limited waiver with respect to some of the underlying communications. The holder of a privilege waives the privilege if he "voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged." TEX. R. EVID. 511(a)(1) (emphasis added). The System argues that the information published in the Kroll Report relays only the investigators' factual findings, which would not have been privileged to begin with. But the report contains quotes that may or may not have been from emails and interviews that are listed in the privilege log—the only documents still in dispute. And even where the Kroll Report does not directly quote from documents, there may still be disclosure sufficient to trigger a waiver if the report unambiguously refers to and describes any of the documents in dispute.
The System concedes that publication of the legal advice would result in a waiver, and we agree.
Category 1 Documents: Internal Attorney–Client Emails Shared with Kroll
The first category of documents in dispute includes emails, dated before the commencement of the Kroll investigation, containing internal communications between UT System and UT Austin lawyers and clients regarding legal matters. These internal communications, which the System maintains are privileged attorney–client communications, were provided to Kroll by the System during the investigation. Franklin does not dispute that these emails were initially privileged and asserts only that the privilege was waived when they were disclosed to Kroll.
The privilege log describes each of these emails as a confidential communication made for the purpose of giving or receiving legal advice. The majority of the emails were authored by or addressed to a UT System or UT Austin attorney. Only four emails—UTS-00120, UTS-00138, UTS-00143, and UTS-00146—were neither authored by nor addressed to a UT attorney. However, those four emails reflect communications between nonlegal management personnel discussing or transmitting the legal advice given by UT's legal counsel. The privilege attaches to "confidential communications made to facilitate the rendition of professional legal services to the client ... between the client's representatives or between the client and the client's representative. " Tex. R. Evid. 503(b)(1)(D) (emphasis added). Thus, to the extent that discussions between management personnel concerned legal advice given by UT's counsel, the privilege attaches. In any event, as noted, Franklin does not dispute that the underlying documents were privileged in the first instance. Instead, it asserts that the sharing of otherwise privileged documents with Kroll waived the attorney–client privilege.
The Kroll Report broadly summarizes the emails that Kroll reviewed, and, in some instances, the report contains quotes or very specific paraphrases of the emails. It is clear that at least some of these quoted or paraphrased emails are not included in the representative sample at issue and thus are not sought by Franklin. For example, the report discusses a 2009 email, but none of the emails in the privilege log are from 2009. The report also discusses a 2010 email from a former admissions official, but the only 2010 emails in the privilege log were authored by Francie Fredrick, a UT attorney.
However, we cannot say definitively that none of the quoted or paraphrased emails are listed in the privilege log. Whether any of those communications were listed in the privilege log and disclosed in "significant part" are matters for the trial court to determine in the first instance on remand.289Category 2 Documents: Kroll's Interview
The second category of documents includes "[t]yped and handwritten notes by Kroll ... summarizing privileged interviews by Kroll of UT System and UT Austin employees, as well as UT System Regents, for the purpose of giving or receiving legal advice by UT System General Counsel." In the course of its investigation, Kroll conducted over sixty interviews of UT officials and employees. The Ayala affidavit describes the interview questions and notes as "captur[ing] confidential communications between Kroll, an attorney representative, and clients."
The System contends that the privilege covers Kroll's notes created during the employee interviews conducted in connection with the investigation. We agree. When a lawyer or lawyer's representative memorializes confidential communications made by the client or client's representative in the course of developing facts that will enable the lawyer to give sound legal advice, those communications are protected by the attorney–client privilege. Upjohn , 449 U.S. at 390–91, 101 S.Ct. 677 ; see also Huie , 922 S.W.2d at 923 (noting that while "a person cannot cloak a material fact with the privilege merely by communicating it to an attorney," the attorney may not reveal the fact if he learned it through a confidential communication from the client). As discussed, Kroll was acting as a lawyer's representative, assisting in the rendition of professional legal services in conducting and memorializing the interviews. Therefore, the privilege covers Kroll's interview notes and questions provided that the privilege was not waived.
Whether the privilege was waived as to Kroll's notes documenting a particular interview again depends on whether the Kroll Report disclosed "any significant part" of the document. TEX. R. EVID. 511(a)(1). Most of the information reported in Section 5 ("Review of Undergraduate Admissions") of the Kroll Report was based on these interviews. Moreover, there are several instances within the report where the content of these documents is revealed, as the report specifically quotes or paraphrases from individuals Kroll interviewed. On remand, the trial court should determine in the first instance whether the report's descriptions of portions of a particular communication in this category amounted to disclosure of a "significant part" of the communication and thus waived the privilege as to that communication. Category 3 Documents: Draft Communications from Sharphorn to UT Employees That Were Shared with Kroll
For example, the report includes the following statements:
• Several UT Austin and UT System officials Kroll interviewed believed that, absent a specific rule or policy prohibiting certain considerations, there is nothing particularly inappropriate with the president of a university essentially overriding preliminary admissions decisions.
• As one high level UT Austin official told Kroll, that there is "outside influence" should come as no surprise, but the president is effectively the CEO of the university and is accountable to many stakeholders. It is his or her job to balance those interests and occasionally make judgment calls on admissions.
• During interviews of key officials, Kroll learned ... [i]n the case of one official at UT System, while the official's son was in the process of applying to the undergraduate program, the official called Nancy Brazzil and said, "I just want you to know my ... son is applying to the university." Brazzil replied, "OK, we'll take care of that." Although this official noted that, in hindsight, this had the appearance of exerting influence, he insisted that there was no such intent to pressure or influence UT Austin in its admissions decision. Nevertheless, the son was admitted.
The last category of documents includes draft correspondence from Sharphorn to UT employees that the Ayala affidavit describes as "drafts of communications that were to be sent to UT clients (employees and/or officials) by UT System General Counsel about cooperation with Kroll during the investigation." The System argues that the privilege extends to draft documents and communications, whereas Franklin asserts that draft communications are not "communications" within the meaning of the privilege. In light of the evidence that Sharphorn in fact communicated with UT employees and officials about cooperating with Kroll, the draft correspondence at least served as an outline of what Sharphorn intended to discuss with his client and thus fits within the scope of the privilege. See United States v. DeFonte , 441 F.3d 92, 96 (2d Cir. 2006) ; Fair Isaac Corp. v. Tex. Mut. Ins. Co. , No. H-05-3007, 2006 WL 3484283, at *2 (S.D. Tex. Nov. 30, 2006) ("The attorney–client privilege also applies to notes that are not themselves communications if disclosure would reveal the substance of any confidential communications between the attorney and client that were made in the course of seeking or giving legal advice." (citation and internal quotation marks omitted)).
Although the Kroll Report acknowledges that UT employees cooperated with Kroll during the investigation, there is no mention of any underlying documents or communications—draft or otherwise—regarding such cooperation. We hold that the privilege was not waived as to these draft communications.
III. Conclusion
For the foregoing reasons, we hold that Kroll was a lawyer's representative, that the documents identified in the privilege log were intended to be kept confidential, and that the attorney–client privilege attached to those documents. Further, the publication of the Kroll Report did not constitute a wholesale waiver of the privilege as to all documents reviewed or prepared by Kroll. However, the report's publication may constitute a waiver as to some of those documents to the extent it revealed a "substantial part" of any of them. Because the System's privilege log contains only a "representative sample" of the thousands of documents provided to Kroll, the trial court is the appropriate forum to determine in the first instance whether the Kroll Report is quoting from or describing documents within that sample and, if it is, whether the report discloses a "significant part" of any of those documents. Accordingly, we reverse the court of appeals' judgment and remand to the trial court for further proceedings consistent with this opinion.
Justice Devine filed a dissenting opinion, in which Justice Boyd joined.
Justice Blacklock did not participate in the decision.
Justice Devine, joined by Justice Boyd, dissenting.
"Privileges ‘represent society's desire to protect certain relationships.’ " "[T]he oldest," "most venerated," and "most sacred of all legally recognized privileges" is the attorney–client privilege. By promoting open dialogue between legal counsel and client, the privilege "promote[s] broader public interests in the observance of law and administration of justice." But because the privilege conceals the truth, it carries a significant cost. To balance these conflicting interests, the attorney–client privilege is limited to a defined set of circumstances and construed "narrowly."
Paxton v. City of Dallas , 509 S.W.3d 247, 259 (Tex. 2017) (quoting Republic Ins. Co. v. Davis , 856 S.W.2d 158, 163 (Tex. 1993) ).
Id. (quoting United States v. Edwards , 303 F.3d 606, 618 (5th Cir. 2002), and United States v. Bauer , 132 F.3d 504, 510 (9th Cir. 1997) ).
Id. at 260 (quoting Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ).
In re XL Specialty Ins. Co. , 373 S.W.3d 46, 49, 56 & n.20 (Tex. 2012) (citing and quoting Hyman v. Grant , 102 Tex. 50, 112 S.W. 1042, 1044 (1908), for the proposition that, "[a]s the rule of privilege has a tendency to prevent the full disclosure of the truth, it should be limited to cases which are strictly within the principle of the policy that gave it birth").
Our evidentiary rules extend the privilege only to confidential communications between lawyer and client—or their respective representatives—"made to facilitate the rendition of professional legal services." Merely communicating with a licensed attorney does not suffice because lawyers, especially in-house lawyers, can wear both legal and nonlegal hats. For that reason, even when a client employs a licensed attorney, questions about what communications fall under the privilege's umbrella can be murky. When a client contracts with a nonlawyer to provide services—as in this case —concerns about the privilege's application are at an apex. Due to the increasingly complex legal landscape, nonlawyer consultants can certainly play a critical and significant role in a lawyer's rendition of professional legal services, but the potential for misusing the privilege exists absent a clear nexus between the consultant's services and a lawyer's provision of legal services to the client. Because a nonlawyer cannot provide legal advice, a "significant purpose" for the engagement must be to assist a lawyer in rendering professional legal services, and that purpose must exist contemporaneously with the communications.
Tex. R. Evid. 503(b)(1) ; see generally Tex. R. Evid. 503 (setting the general rule, providing exceptions, and defining the key terms "client," "client's representative," "lawyer," "lawyer's representative," and "confidential").
Restatement (Third) of The Law Governing Lawyers § 73 cmt. i (Am. L. Inst. 2000) (while the privilege applies "without distinction to lawyers who are inside legal counsel or outside legal counsel for an organization," "[c]ommunications predominantly for a purpose other than obtaining or providing legal services for the organization are not within the privilege").
Id. § 72 cmt. c ("A client must consult the lawyer for the purpose of obtaining legal assistance and not predominantly for another purpose.... Whether a purpose is significantly that of obtaining legal assistance or is for a nonlegal purpose depends upon the circumstances .... If a lawyer's services are of a kind performed commonly by both lawyers and nonlawyers or that otherwise include both legal and nonlegal elements, difficult questions of fact may be presented.").
See infra note 22.
Restatement , supra note 6, at § 70 cmt. g ("The privilege also extends to communications to and from the client that are disclosed to independent contractors retained by a lawyer, such as an accountant or physician retained by the lawyer to assist in providing legal services to the client and not for the purpose of testifying.").
See id. §§ 70 cmt. g, 72 cmt. c, 73 cmt. i; see also Tex. Gov't Code §§ 81.101(a), .102(a) (prohibiting nonlawyers from providing legal advice).
Applying that understanding of what it means to be "employed ... to assist in the rendition of professional legal services," I would hold that the attorney–client privilege did not attach to Kroll's investigation or was waived due to insufficient contemporaneous substantiation that Kroll's audit of UT's admissions practices was initiated or conducted to assist UT's attorneys or its general counsel, Daniel Sharphorn, in providing legal advice to UT. At best, the record supports the conclusion that UT sought advice and guidance from Kroll , which was acting independently in advising UT about its admissions practices and policies. The Court's contrary conclusion turns on equivocal contractual clues and post hoc affidavits that are self-serving, conclusory, and—most importantly—provide no factual basis for concluding Kroll was engaged to assist UT's lawyers in the provision of legal services. While the Court adopts the "significant purpose" standard, as I would, the overly generous application here erroneously denies public access to public information. I respectfully dissent because the paltry evidentiary record does not support the conclusion that Kroll was engaged to assist UT's lawyers in providing legal services.
See Tex. R. Evid. 503(a)(4)(A), (b)(1).
Ante at 280–81.
A
Under our representative form of government, the people's delegation of authority to public servants does not include "the right to decide what is good for the people to know and what is not good for them to know." This fundamental principle of open government is embodied in the Public Information Act (PIA), which declares "as the policy of this state," that "each person is entitled ... to complete information about the affairs of government and the official acts of public officials and employees" "at all times" "unless otherwise expressly provided by law."
Id.
But while the PIA comprehensively "promotes and advances the public's interest in governmental transparency and openness," the statute simultaneously recognizes the public's compelling interest in "shielding some information from public disclosure." Within the statute's balancing framework, a "completed report, audit, evaluation, or investigation" made for "a governmental body" is a category of "public information" that may not be secreted from the public unless the information is "made confidential under [the PIA] or other law." "Other law" includes the common-law attorney–client privilege, as memorialized in the Texas Rules of Evidence. When the privilege applies, the right of public access to public information must yield to "the public's equally significant interest in ensuring public officials pursue and obtain legal advice and representation in affairs of governance."
Paxton v. City of Dallas , 509 S.W.3d 247, 249-50, 270 (Tex. 2017).
Tex. Gov't Code § 552.022(a)(1). The final investigative report in this case has already been released to the public, but section 552.022(a)(1) is not limited to a "report," and there appears to be no dispute that the communications Kroll reviewed or drafted in connection with the completed "investigation" or "audit" are "public information."
Tex. R. Evid. 503 (attorney–client privilege); In re City of Georgetown , 53 S.W.3d 328, 336 (Tex. 2001) (holding that the Texas Rules of Evidence are "other law" for purposes of determining whether public information is confidential and exempted from disclosure under PIA section 552.022(a) ).
Paxton , 509 S.W.3d at 270.
The inherent—and irreconcilable—tension between public access and the need for confidentiality is amplified in open-government disputes because "[f]ull and frank legal discourse" between attorneys and their governmental clients "directly and significantly serves the public interest," but at the same time, the information being withheld from the public belongs to the public. The "conflict between the desire for openness and the need for confidentiality in attorney–client relations" requires courts to "restrict[ ] the scope of the attorney–client privilege" by construing the privilege "narrowly."
Id. at 250, 260.
In re XL Specialty Ins. Co. , 373 S.W.3d 46, 49 (Tex. 2012) (quoting Republic Ins. Co. v. Davis , 856 S.W.2d 158, 160 (Tex. 1993) ).
Id. at 56 ; see Hyman v. Grant , 102 Tex. 50, 112 S.W. 1042, 1044 (1908).
The issue here is the proper scope of the attorney–client privilege in a nonlitigation case that does not involve communications with a lawyer, an employee of a lawyer, or even someone working under a lawyer's supervision and control. The nub of this dispute is whether the attorney–client privilege applies to communications UT officials, employees, and legal counsel shared with a nonlawyer consultant that UT itself retained to conduct an "independent" audit or investigation of UT's admission practices. The question is not whether the communications themselves were intended to be confidential or were made to "facilitate the rendition of legal services," but whether Kroll was a privileged person when the communications were made or shared. If not, Kroll's interview questions and notes are not privileged from disclosure in the first instance, and any privilege otherwise attaching to documents shared with Kroll during its investigation has been waived by voluntary disclosure to a third party.
The contract is between "The University of Texas System" as the "Client" and "Kroll Associates, Inc." as the "Contractor." No attorney is named or identified as a party or signatory to either the contract or Kroll's final report. UT has never asserted that Kroll, an incorporated entity, is "authorized ... to practice law in any state or nation" or that Kroll employed lawyers to provide legal services to UT. See Tex. R. Evid. 503(a)(3) (defining "lawyer" for the attorney–client privilege). If Kroll were actually engaged to provide services as an attorney, the contract would be unlawful. By law, state agencies (including university systems) "may not retain or select any Outside Counsel without first receiving authorization and approval from the Office of the Attorney General," which will sign the contract and "indicate [its] approval on the contract." 1 Tex. Admin. Code §§ 57.1(1), .3(a), .5(a), (g) ; see Tex. Gov't Code § 402.0212(a). Kroll's engagement contract does not meet these requirements.
In addition, the consulting agreement between UT and Kroll expressly states that "[Kroll] is an independent contractor" and "not a state employee, partner, joint venturer, or agent of University." These circumstances distinguish the facts here from UT's primary authority, Upjohn Co. v. United States , in which communications were made by company employees to company attorneys during an attorney-led internal investigation that was undertaken to ensure the company's "compliance with the law," 449 U.S. 383, 386-87, 392, 394, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), and In re Kellogg Brown & Root, Inc. , 756 F.3d 754, 757 (D.C. Cir. 2014), in which a business client initiated an internal investigation by its in-house legal department, acting in its legal capacity, after being informed of potential misconduct.
See In re Grand Jury Proceedings , 727 F.2d 1352, 1357 (4th Cir. 1984) ("It is [ ] the essence of the attorney–client privilege that it is limited to those communications which are intended to be confidential. ‘The moment confidence ceases, ... privilege ceases.’ " (quoting United States v. Tellier , 255 F.2d 441, 447 (2d Cir. 1958) )).
Because UT does not contend Kroll or its investigators were lawyers performing legal services, the critical inquiry is whether Kroll qualifies as "a lawyer's representative" under Rule 503, which sets out the basic parameters of the attorney–client privilege. Rule 503 defines "lawyer's representative" as "one employed by the lawyer to assist in the rendition of professional legal services." As the party claiming the privilege, UT bears the burden of proving Kroll satisfies Rule 503's requirements.
See Tex. R. Evid. 503(a)(3) ("A ‘lawyer’ is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.").
Tex. R. Evid. 503(a)(4)(A). A different standard applies to accountants, who will qualify as a "lawyer's representative" if their services are "reasonably necessary for the lawyer's rendition of professional legal services." Tex. R. Evid. 503(a)(4)(B).
In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 223 (Tex. 2004) ; see City of Garland v. Dall. Morning News , 22 S.W.3d 351, 364 (Tex. 2000) (the governmental entity seeking to avoid a request for disclosure bears the burden of proving the requested information is not subject to the PIA or is exempt from its disclosure requirements).
The contract here was between two nonlawyers: UT and Kroll. But even if Kroll had been directly employed by or on behalf of a lawyer, mere employment by a lawyer is not enough to qualify as a "lawyer's representative"; rather the engagement must be to assist a lawyer in acting as a lawyer. But how does one determine if the employment meets that standard? As all seem to agree, being "employed" "to assist" means the engagement serves the purpose of helping the lawyer provide professional legal services to the client. A "purpose" is "something set up as an object or end to be attained." Here, the parties agree that, to qualify as a "lawyer's representative" under Rule 503, rendition of legal services by a lawyer to a client must be an objective of Kroll's engagement; however, they disagree about whether it must be the "primary" end game or merely one objective. In my book, one could not actually be "employed" "to assist" a lawyer in the relevant way unless helping a lawyer to provide legal services to a client is, at minimum, a significant purpose for the consulting engagement. It also seems inarguable that "employed ... to assist" requires something more than being incidentally helpful to legal counsel or useful in rendering legal services as a matter of fact or after the fact. Were it otherwise, Rule 503's lawyer-representative definition would be impossibly broad. By holding that "assisting in the rendition of professional legal services must be a significant purpose for which the representative was hired in the first instance," the Court construes the rule as encompassing an appropriate constraint on its potential breadth. The problem, as I see it, is not the standard, but the Court's loose application of it to the record on appeal, which renders the narrow-construction mandate essentially tokenistic.
See supra note 22.
Merriam-Webster's Collegiate Dictionary , at 947 (10th edition 2000); see Webster's Third New International Dictionary , at 1847 (2002) (defining "purpose" as "something that one sets before himself as an object to be attained: an end or aim to be kept in view in any plan, measure, exertion, or operation").
Accord In re Kellogg Brown & Root, Inc. , 756 F.3d 754, 758-60 (D.C. Cir. 2014) (holding in-house counsel's internal investigation was covered by the attorney–client privilege "[s]o long as obtaining or providing legal advice was one of the significant purposes of the internal investigation ... even if there were also other purposes for the investigation" and observing that this standard is essentially a "primary purpose test" without "draw[ing] a rigid distinction between a legal purpose on the one hand and a business purpose on the other"); Restatement , supra note 6, at § 72 cmt. c & illus. 2 ("A client must consult the lawyer for the purpose of obtaining legal assistance and not predominantly for another purpose.... Whether a purpose is significantly that of obtaining legal assistance or is for a nonlegal purpose depends upon the circumstances[.]"), Rptrs. note on cmt. c ("In general, American decisions agree that the privilege applies if one of the significant purposes of a client in communicating with a lawyer is that of obtaining legal assistance.").
Surely the Uber driver who takes counsel from office to courthouse every day of a jury trial is—in the literal words of Rule 503 —"employed by the lawyer to assist in the rendition of professional legal services." See Tex. R. Evid. 503(4)(a). Just as surely, however, confidential communications in the presence of said driver would waive the privilege because provision of professional legal services is not a significant purpose of transportation.
Ante at 280–81.
What is most concerning about the Court's analysis is (1) the reliance on backward-looking, conclusory, and nonprobative affidavits from Sharphorn, former UT Chancellor William H. McRaven, and Assistant General Counsel Ana Vieira Ayala; and (2) the need to scavenge for clues in Kroll's 20-page engagement contract and 101-page final report to justify applying the privilege. The Court is forced to elevate unremarkable contract provisions to more significant status because the party claiming the privilege on the back-end failed to clarify on the front-end that assisting a lawyer in the rendition of professional legal services was an objective of the consultant's services, let alone a significant one.
When a client hires a lawyer or a lawyer hires a consultant, one could argue that at least a patina of privilege arises. But to extend the attorney–client privilege to an independent investigation by a nonlawyer independent contractor under a contract made directly with the client rather than with legal counsel, I would require much more clarity and certainty at the engagement level than the Court does.
B
As an independent contractor, Kroll was not an employee or agent of UT's general counsel nor under his control, so to invoke the privilege, some sort of contemporaneous substantiation of Kroll's role in the attorney–client relationship is vital. Requiring reasonably clear evidence that a nonlawyer consultant is conducting an internal audit or investigation to enable a legal professional to provide legal advice to a client is not an onerous standard. But here, there is neither competent nor contemporaneous evidence that assisting UT's lawyers in the rendition of legal services was a purpose for Kroll's audit at all.
From my perspective, the minimum evidence that should be required to cloak such an internal investigation with attorney–client privilege is akin to the circumstances in Harlandale Independent School District v. Cornyn , a PIA case involving an attorney hired by a school district's general counsel to independently investigate a campus police officer's grievance. The question was whether the attorney was acting as an attorney or in a different, nonlegal capacity. In concluding that the attorney–client privilege applied to the investigation, the court of appeals noted that (1) the school district's general counsel informed the attorney at the time of hiring that she had been selected to analyze legal liability related to the grievance; (2) the attorney's retention letter not only charged her with a fact-finding mission but also specifically asked her to provide "legal analysis of the matters investigated," including "the legal liabilities and consequences facing the School District and Board of Trustees"; (3) the school district's superintendent testified that, at the time of hiring, both the attorney and the district's general counsel informed the superintendent that the attorney would be representing the school district "as an attorney"; and (4) consistent with what the engagement letter required, the attorney informed witnesses that she was acting as the school district's attorney.
25 S.W.3d 328, 330, 333-34 (Tex. App.—Austin 2000, pet. denied).
Id. at 332. UT's main cases—Upjohn Co. v. United States , 449 U.S. 383, 386-87, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), and Kellogg Brown & Root , 756 F.3d at 756 —similarly involve attorney-led internal investigations.
Harlandale Indep. Sch. Dist. , 25 S.W.3d at 333.
In stark contrast, UT's lengthy contract with Kroll doesn't even make a pretense of connecting Kroll's services with assisting with the rendition of professional legal services. The contract does not mention legal services, let alone require Kroll to provide or assist with the rendition of such services. The contract does not identify any lawyers who would be rendering legal services to UT nor any laws or regulations to help Kroll identify the facts relevant to the rendition of legal services. The contract also does not mention the attorney–client or work-product confidentiality privileges nor advise or require Kroll to inform witnesses that it would be working for, with, or on behalf of UT's legal counsel. And there is no evidence that witnesses Kroll interviewed were ever informed that the external investigators were representing or assisting UT's legal department. Likewise, although the "Scope of Work" mentions protecting student privacy, the immediately following paragraph discussing witness interviews says nothing about confidentiality. The contract doesn't even take the simple step of parroting Rule 503's definition of a lawyer's representative. Nor has UT taken the basic step of producing evidence from the contract signatories—UT's Executive Vice Chancellor for Business Affairs (Dr. Scott C. Kelley) and a Senior Managing Director for Kroll (William C. Nugent)—about the contracting parties' understanding of Kroll's role. Kroll's final report is no better on these fronts.
No competent lawyer would interview a witness or conduct a deposition without first determining what law governs compliance issues or the elements of a claim or defense. The only way to ensure that the facts necessary to formulate fruitful legal advice are developed by a nonlawyer consultant is to identify the facts that have to be proved or disproved.
Cf. Upjohn , 449 U.S. at 394, 101 S.Ct. 677 (the Chairman of the Board gave "explicit instructions" that the "communications were ‘highly confidential,’ " and the employee questionnaire identified the investigator as "the company's General Counsel," "referred in its opening sentence to the possible illegality of payments such as the ones on which information was sought," and included a "statement of policy" that "clearly indicated the legal implications of the investigation"); Kellogg Brown & Root , 756 F.3d at 758 ("[H]ere as in Upjohn employees knew that the company's legal department was conducting an investigation of a sensitive nature and that the information they disclosed would be protected ... [and were] told not to discuss their interviews ‘without the specific advance authorization of KBR General Counsel.’ ").
"Student privacy must be fully protected.... Information provided to investigators in the course of the Work that could be used to identify a student and derived from FERPA Records will be protected accordingly, and will not be disclosed as part of the investigators' Final Report without the consent of the U.T. Austin General Counsel."
"Interviews are to be conducted with relevant officials and staff from U.T. Austin, U.T. System Administration, the Board of Regents and others as deemed necessary. Current and former admissions staff who participated in the admissions process for the 2004 to 2013 entering classes will be included."
No lawyer for UT signed the original engagement agreement. The agreement was later amended, in limited (and nonrelevant) part, four times during the course of the investigation. The original signatories, Dr. Kelley and Mr. Nugent signed each amendment. Three out of four of the amendments also bear the signature of a UT lawyer approving the particular amendment "as to content." The first amendment did not bear any UT lawyer's signature or include any such notation.
It's not enough that UT's legal counsel was tapped to help facilitate the investigation because in-house lawyers are routinely designated as contact persons for myriad nonlegal business activities and are routinely looped into or copied on nonlegal communications, contracts, and notices. Nor is it sufficient that Kroll was generally admonished to keep all "Work Material" and "University Records" "confidential." Both legal and nonlegal reasons exist for maintaining confidentiality during an audit—especially when the information is subject to the Family Educational Rights and Privacy Act (FERPA). Notably, the only confidentiality concerns specifically mentioned in Kroll's engagement contract had nothing whatsoever to do with the rendition of legal services.
See United States v. Ruehle , 583 F.3d 600, 608 n.8 (9th Cir. 2009) (noting that business advice does not fall within the purview of attorney–client privilege even if the advisor is a lawyer); cf. Tex. Att'y Gen. Op. No. JC-0233, at 3, 6 (2000) (opining that a closed-door executive session of a governmental body to discuss policy unrelated to legal matters was not permitted under the open-meetings statute's language merely because an attorney was present); see also Peter Tipps, Confidentiality and Nondisclosure Agreements , Practical Law Commercial Transactions: Practice Note at 4 (June 24, 2022) (noting that a company's legal department often plays a critical role in securing company-wide information and data protection).
20 U.S.C. § 1232g.
See infra note 45.
While the Court finds the contract's standard confidentiality provisions revelatory of Kroll's supposed role in assisting UT's lawyers, I do not. Paragraph 7 of the contract simply admonishes the contractor to "treat all Work Material as confidential." Paragraph 12.11, which the Court seems to find particularly compelling, is relegated to the "Miscellaneous" provisions section of the contract and is equally banal in its imposition of confidentiality requirements. I doubt anyone would genuinely view these provisions as anything other than ordinary confidentiality provisions typical of consulting contracts of any nature. As a matter of fact, even UT's "Contract Management Handbook" describes the contract terms in Paragraphs 7 and 12.11 to be "routine," "standard," "generally accepted," "recommended," and "essential." The question here is not whether the parties expected information to be kept confidential, but whether Kroll was a privileged person under the Texas Rules of Evidence when confidences were shared. Nothing in the confidentiality provisions speaks to that matter one way or the other. But not a single word in these provisions speaks to the performance of legal services, attorney–client confidences, or privileges as one might expect if assisting in the rendition of legal services was a significant purpose of the engagement.
See ante at 281–82 & 285–86 n.10.
Paragraph 7, titled "Ownership and Use of Work Materials ," provides:
All data, tapes, publications, statements, accounts, reports, studies, and other materials prepared by Contractor [Kroll] in connection with the Work (collectively, "Work Material "), whether or not accepted or rejected by University, will be maintained as Confidential by Contractor.... The Work Material will not be used or published by Contractor or any other party unless expressly authorized by University in writing. Contractor [Kroll] will treat all Work Material as confidential.
Paragraph 12.11, entitled "Confidentiality and Safeguarding of University Records; Press Releases; Public Information ," states:
Under this Agreement, Contractor [Kroll] may (1) create, (2) receive from or on behalf of University, or (3) have access to, records or record systems (collectively, ‘University Records ’). Among other things, University Records may contain social security numbers, credit card numbers, or data protected or made confidential or sensitive by Applicable Laws. Contractor ... will use reasonable and appropriate measures to: (1) hold University Records in confidence and will not use or disclose University Records except as (a) permitted or required by this Agreement, (b) required by Applicable Laws, or (c) otherwise authorized by the University in writing; (2) safeguard University Records according to reasonable administrative, physical and technical standards that comply with each of the following requirements:
12.11.1 Notice of Impermissible Use. [Requiring Contractor to give "prompt and reasonable" notice if an impermissible use or disclosure of University Records occurs].
12.11.2 Return of University Records. [Generally requiring Contractor to return University Records if requested by the University].
12.11.3 Disclosure. [Requiring Contractor to "require any subcontractor or agent to comply with the same restrictions" and prohibiting disclosure of University Records to a subcontractor without the University's permission].
12.11.4 Press Releases. [Prohibiting Contractor from making any public statements about the project or engagement without the University's prior written approval].
12.11.5 Public Information. [Requiring Contractor to make any information created or exchanged with the University available to the University on request and as needed to enable the University to comply with the PIA].
12.11.6 Termination. [Authorizing the University to terminate the Contract if this paragraph is breached].
12.11.7 Duration. [Stating Paragraph 12 survives expiration or termination of the Agreement].
Unlike Paragraph 7, this provision specifies certain categories of information as implicating confidentiality concerns. Given that specificity, the failure to include any reference to attorney–client confidences or privileges is edifying.
The University of Texas at Austin, Contract Management Handbook , at 62-63 (October 13, 2017), https://utexas.app.box.com/v/ut-austin-cont-mgmt-hdbk (last visited June 21, 2023) (including provisions governing "Ownership and Use of Work Material" and "Confidentiality and Safeguarding of University Records; Press Releases; Public Information" as among those that are "routine," "standard," and may be "essential" depending on the contract's subject matter).
The Court also highlights a contract provision requiring Kroll "to promptly inform the University of any requests or subpoenas related to project information ‘so that [UT] may seek from a court of competent jurisdiction a protective order or other appropriate remedy to limit the disclosure.’ " Again, this is a typical contract provision one might find when a consultant has access to or possession of information belonging to either the client or to someone to whom the client owes a duty of confidentiality. Given Kroll's access to FERPA-protected information, it's unsurprising that this provision imposes a notification obligation on UT's contractor that enables UT to comply with its corresponding notification obligation under the university's FERPA policy. Such provisions are so typical that similar notification provisions are also found in other UT contract templates that have nothing to do with legal services.
Ante at 285–86 n.10 (quoting Paragraph 9 of the Kroll Contract, titled "Information Requests or Subpoenas ").
UT's FERPA policy states that "[i]nformation concerning a Student shall be released in response to a judicial order or lawfully issued subpoena" but UT must "make reasonable efforts to notify the Student of an order or subpoena before complying with it[.]" The University of Texas System, General Counsel Documents, https://www.utsystem.edu/offices/general-counsel/document-library (FERPA Policy, at paragraph C(2)(b)(x)) (last visited June 21, 2023).
See, e.g., id. (various nondisclosure agreements); see also Tipps, supra note 40 ("Confidentiality agreements usually allow the recipient to disclose confidential information if required by court order or other legal process. The recipient usually has to notify the disclosing party of this order (if legally permitted to do so) and cooperate with the disclosing party to obtain a protective order.").
Vaguely charging Kroll with ascertaining whether UT's admission's process is "beyond reproach" is no better because that is an ideal, not a legal standard. The Court does a deep dive into dictionary definitions to assure us that legal compliance falls within the broad ambit of actions that are "beyond reproach." But if assisting a lawyer in the rendition of legal services were actually a significant purpose of a nonlawyer's consulting agreement, a "greater includes the lesser" analysis would not be required to make that deduction. Such important objectives are rarely accomplished through vague terms and subtle devices. In fact, lawyers and law firms engaging consultants to help with legal matters routinely make the nature of such engagements abundantly clear in letters of a few pages. It's not that hard. But to guard against abuse of the privilege, it is that important.
In defining "beyond reproach," Kroll's contract says: "Specifically, the investigation should determine if U.T. Austin admissions decisions are made for any reason other than an applicant's individual merit as measured by academic achievement and officially established personal holistic attributes, and if not, why not." No legal authority was identified as bearing on this inquiry. To the contrary, "[t]his charge" was based solely on the aspirational "premise that applicants should only be admitted to a public university based on their individual merit, i.e., academic achievement and officially established personal holistic factors" and "should not gain advantage only because they are recommended outside the prescribed admissions process by an influential individual." Kroll was asked to "identif[y]" "[a]ny competing evidence or premise as to the basis for admissions," not so that UT's legal counsel could provide legal advice, but "so it can be openly debated."
The "Scope of Work" appended to the engagement contract further advised that Kroll "should" "promptly convey[ ] to the U.T. System General Counsel" any "serious concern" "about a particular recommendation or other conduct of an individual outside U.T. [that] is brought to light ... such as evidence of a quid pro quo or a threat from a recommender[.]" While the Court finds this statement particularly illuminating, see ante at 284, I do not. This is a run-of-the-mill request to an auditor to alert the client's legal representative of any concerns; it can hardly be characterized as supporting the conclusion that assisting legal counsel was a significant, as opposed to incidental, objective of the engagement.
Id. at 284–86 & n.8.
UT officials are sophisticated enough that they would have known about the importance of safeguarding the privilege if that had been their intent. This point is amply demonstrated by the "Outside Counsel Contract" template the Attorney General mandates for state agencies, including university systems. This template, which is readily available on the UT General Counsel website, includes recitations like:
Interestingly, a PowerPoint presentation prepared by UT's Office of General Counsel addressing "Scope of Work Issues" states that, in drafting the scope of work for a contract, it should be made " absolutely clear what contractor is supposed to provide or perform." UT General Counsel Documents, https://www.utsystem.edu/offices/general-counsel/document-library (Scope of Work Issues) (emphasis in original) (last visited June 21, 2023).
Whereas , Agency requires the assistance of outside legal counsel in carrying out its responsibilities; and
Whereas , Agency has received prior approval from the [Office of the Attorney
General] to contract for outside legal services; and
Whereas , Outside Counsel desires to provide legal services to Agency ....
UT General Counsel Documents, https://www.utsystem.edu/offices/general-counsel/document-library (Outside Counsel Contract Example FY22-FY23) (last visited June 21, 2023); accord Memorandum from Off. of the Att'y Gen.–Gen. Couns. Div. to State Agencies, at 20-21, Univ. Sys., & Insts. of Higher Educ., at 20 (April 2, 2012), https://www2.texasattorneygeneral.gov/files/agency/agency_packet.pdf (Outside Counsel Contract Template) (last visited June 21, 2023).
The template also goes beyond generalized "confidentiality" mandates and specifically requires outside counsel to:
exercise professional judgment and care when creating documents or other media intended to be confidential or privileged attorney–client communications that may be subject to disclosure under the [PIA] ... [and] mark confidential or privileged attorney–client communications as confidential.
UT is required to include these provisions in its engagement contract when hiring a lawyer. It should not be too much to ask for something—anything—in a contract between a client and a nonlawyer consultant that at least hints at a connection with the provision of legal services. Indeed, one might expect that a lay person assisting legal counsel would need to be contemporaneously advised about applicable privileges, especially one as important as the attorney–client privilege. While UT undoubtedly wanted to keep information about its admissions practices confidential—and was legally obligated to keep its students' information confidential—mere imposition of "confidentiality" obligations on a nonlawyer consultant is, at best, equivocal with respect to the nature of the consultant's role.
By the same token, Kroll's investigation may have been useful, or subsequently used, in securing or facilitating legal advice from UT's lawyers. But because the requisite relationship must exist when the communications are made or shared, the privilege inquiry cannot be backward-looking. In that regard, the affidavits the Court views as "confirming" Kroll's status as a "lawyer's representative" are facially inadequate to support that conclusion.
See ante at 283–84, 286–87.
Ayala's affidavit does not speak to the nature of Kroll's representation and is otherwise conclusory in all material respects. With regard to Kroll, Ayala's affidavit merely repeats what Kroll's contract and report say. The Court implies there is more substance to the affidavit by charging this opinion with "downplay[ing] [its] specificity and detail." Yet the Court conspicuously fails to identify anything at all in Ayala's affidavit that substantiates UT's claim that Kroll was employed to assist UT's legal counsel in providing professional legal services. In lieu of doing so, the Court complains that it would "undermine the very essence of the privilege" to expect the party with the burden of proof to provide facts relevant to the nature of the engagement. I beg to differ. As the Court concedes, the inquiry here is not whether confidential information was exchanged but whether Kroll fell within the scope of the privilege when it was. I fail to see how facts bearing on that inquiry would "undermine the very essence of the privilege." What undermines the privilege is sharing confidential information with someone who is not covered by the privilege.
See id. at 286 n.11. The Court finds sufficient specificity in Ayala's affidavit because it "discusses specific numbered documents in the privilege log, including names of individuals involved and the purpose of those documents." Id. While it's true that the privilege log names many individuals, it does not identify a single Kroll employee by name, so it's difficult to see how the naming of individuals adds any material substance to Ayala's affidavit. Though the Court implies otherwise, "Kroll" barely even makes an appearance in the privilege log. Indeed, there are only two categories of documents of "[u]nknown" or "[v]arious" date that are broadly labeled as having been authored by "Kroll": one with documents described as "[t]yped and handwritten notes of interviews by Kroll" and the other with documents described as "[q]uestions asked of UT Austin clients during interviews." Whether those documents are, in fact, privileged is the ultimate legal issue in dispute.
See id. at 280–81 (observing that the privilege is either waived or does not attach to confidential information shared with Kroll unless Kroll qualifies as a "lawyer's representative"); id. at 283 (citing "the formation of the relationship and the purpose of Kroll's engagement at the time of employment" as the focus of the inquiry into the relationship between UT and Kroll).
Sharphorn's affidavit also adds nothing from an evidentiary perspective because it merely quotes from and paraphrases the "Scope of Work" appended to Kroll's contract. More notable is the affidavit's utter silence about having retained Kroll "to assist" UT's lawyers. Instead, the affidavit states that after Sharphorn's own investigation proved ineffective, Kroll was hired "to conduct an independent investigation." The absence of any evidence that Kroll ever provided its report to Sharphorn or to the UT Office of General Counsel is just as noteworthy.
Sharphorn's affidavit was prepared in connection with other litigation that arose after Kroll issued its report. That dispute did not concern the nature of Kroll's engagement, so it's unsurprising that Sharphorn's affidavit was not focused on the material inquiry here: whether Kroll was employed to assist UT lawyers in the rendition of professional legal services. The affidavit regurgitates some of the engagement-contract provisions but provides no facts to corroborate that Kroll was employed as a lawyer's representative when the communications at issue were made. Sharphorn's affidavit shows that legal counsel found the report useful in other litigation, but hindsight is not the relevant inquiry. In erroneously describing this opinion as "criticiz[ing] Sharphorn's affidavit because it ‘was prepared in connection with other litigation,’ " id. at 287 n.12, the Court misses the point. It's true, as the Court says, that affidavits are often prepared after the fact for purposes of litigation, and it's true that affidavit testimony is still testimony even if given in other litigation. But it's not the source of the testimony that's problematic here; it's that Sharphorn's affidavit lacks probative value beyond reciting portions of Kroll's contract.
Most puzzling is the Court's suggestion that McRaven's affidavit is probative of the relevant inquiry. McRaven's affidavit doesn't attest to any facts that corroborate the purpose of Kroll's independent audit contemporaneous with the communications at issue. And it couldn't because, as the affidavit affirmatively establishes, McRaven was not employed at UT until long after Kroll was hired and mere weeks before Kroll submitted its final report to him. If McRaven's affidavit is probative of anything, it's that Kroll was assisting and advising UT, not Sharphorn. To that point, McRaven's affidavit states that (1) Kroll presented its report to McRaven, not Sharphorn; (2) after reading the report several times, McRaven contacted Sharphorn for legal advice, not the other way around; and (3) McRaven acted on Kroll's conclusions and advice, not Sharphorn's.
Id. at 283–84 & 286–87.
McRaven averred:
On February 6, 2015, Kroll presented me its final report .... After receiving it, I read the Kroll report several times. In addition, I spoke with Vice Chancellor and General Counsel Dan Sharphorn, from whom I sought legal advice.... After careful review and consideration, on February 9, 2015, I sent a letter to the Board of Regents rendering my decision that then-UT Austin President Bill Powers would not be subject to disciplinary action because Kroll reported that there was no violation of law, rule, or policy, and I, therefore, determined that his conduct did not rise to the level of willful misconduct or criminal activity.
Sharphorn's affidavit confirms the same:
On February 6, 2015, Kroll presented its Final Report to the Office of the Chancellor of the University of Texas[.] ... William H. McRaven, who began his service as Chancellor of the UT System in January 2015[,] received and reviewed the results of the Kroll Report. On February 9, 2015, Chancellor McRaven sent a letter to the Board of Regents for the UT System rendering his decision that then-UT Austin President Bill Powers would not be subject to disciplinary action because Kroll reported there was no violation of law, rule, or policy, and the Chancellor determined that his conduct did not rise to the level of willful misconduct or criminal activity.
None of these affidavits sheds any light on the issue presented: whether Kroll was employed to assist UT's lawyers in the rendition of legal advice.
Indeed, nothing in the Kroll Report, the engagement contract, or the affidavits supports the Court's conclusion that Kroll was engaged to provide information to Sharphorn or any other UT lawyer so that those lawyers could provide legal advice to UT. To the contrary, the Kroll Report on its face—and as it was actually used—shows it to be an end in itself, not a means to an end.
Even aggregating the equivocal clues the Court finds sufficient, the connection between Kroll's audit and the rendition of legal services by UT's legal counsel is too tenuous to be rationally inferable. None of the language in Kroll's engagement contract with UT even remotely distinguishes it from any other that a client might make with a nonlawyer consultant. While magic words aren't required, the absence of any that might reasonably be expected if assisting the rendition of legal services was a significant purpose of the audit is telling.
See In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 223 (Tex. 2004) (holding that if a party asserting privilege tenders documents to the trial court and makes a prima facie showing of privilege—meaning "the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true"—the trial court must conduct an in camera inspection of those documents to determine whether that party has met its burden of proof (quoting Tex. Tech Univ. Health Scis. Ctr. v. Apodaca , 876 S.W.2d 402, 407 (Tex. App.—El Paso 1994, writ denied) )).
One could easily envision a contract between UT and an information-technology consultant auditing the university's data-processing systems that:
• admonishes the consultant to maintain its Work Materials as confidential;
• admonishes the consultant to maintain University Records as confidential;
• requires the consultant to notify the university if it receives a subpoena or other judicial process seeking information belonging to the University or its students;
• charges the consultant with determining if university systems are operating "beyond reproach"; and
• asking the consultant to notify counsel if it has any "serious concerns."
The Court's insistence on imbuing such common contract provisions with more significant meaning sets a troubling precedent.
By selectively quoting from this opinion, the Court incorrectly portrays it as requiring consulting agreements to use certain language or "magic words." See ante at 285–86 n.10.
* * * * * *
A proper constraint on the scope of the attorney–client privilege requires courts to distinguish between a consultant engaged to assist a lawyer and a consultant engaged to assist the client. From my perspective, the Court's application of the attorney–client privilege overextends the privilege and, in doing so, practically invites misuse. Bearing in mind the opposing—but equally compelling—interests at stake, I would take a more restricted view of what it means to be "employed ... to assist in the rendition of professional legal services." While I fully appreciate that the complexities of modern business and legal practices often necessitate consulting with third-party experts to properly advise a legal client or prepare for litigation, when an engagement contract is between the client and an independent nonlawyer consultant, the connection between the consultant's services and the rendition of legal advice should not be left to the imagination or open to debate.
Placing the burden of proof where it properly lies, I would hold that the attorney–client privilege does not apply to documents Kroll created or reviewed in connection with its audit of UT's admission processes because UT failed to show that Kroll—a nonlawyer independent contractor—was "employed ... to assist [UT's attorneys] in the rendition of professional legal services." Because the Court allows UT to conceal documents that must be disclosed under the PIA, I respectfully dissent.
See id.