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

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

The Texas Rules of Evidence broadly defines an attorney’s representative as a person employed by the attorney to assist in the “distribution of professional legal advice.” However, the appeals court “wrongly” required a higher standard of proof to show that independent non-attorney advisers qualify as representing an attorney, UT Austin said in its review motion.

UT Austin’s General Counsel hired Kroll Associates to investigate allegations of improper admissions practices at the school. The 2015 Kroll report contained evidence that former UT Austin President Bill Powers ordered the admissions of certain college applicants over the admissions board’s objections. Kroll concluded that this did not violate any law, rule or policy as he found no evidence of improper quid pro quo by UT officers.

Following the report, the Franklin Center for Government and Public Integrity filed a request under the Texas Public Information Act for documents underlying Kroll’s investigation. UT Austin resisted disclosure, arguing that attorney-client privilege applied because Kroll was acting as attorney-at-law, and the Family Educational Rights and Privacy Act.

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

The case merits review because “it concerns the confidentiality of communications underlying a major government investigation,” the university said. UT Austin stressed that although the report was released, no one was given access to the “hundreds of thousands” of pages of student records and staff interviews that Kroll reviewed to create the report.

The Franklin Center alleges that the university could not prove that the primary purpose of Kroll’s investigation was to provide legal advice to UT’s General Counsel. “It is UT’s onus to prove each element of the claimed privilege and it is not entitled to any presumptions,” the center said.

The case is scheduled for oral hearing on January 11th.

UT Austin is represented by the Attorney General. The Franklin Center is represented by Gregor Wynne Arney PLLC.

The case is Franklin Ctr. for government. & Pub. integrity vs. university of Tex. Sys., Tex., No. 21-0534, 9/30/22.