Texas Supreme Court to Consider Public Information Act Challenge to Attorney-Client Privilege

Published in Texas Lawyer, October 04, 2022

“UT is really arguing that if they put their general counsel in charge of simply administering the contract with what is plainly an independent contractor tasked with providing an independent report, it can hide the requested information behind a screen of privilege. UT cannot create attorney-client privilege by a general confidentiality provision in a contract; it must put on evidence of the elements of the privilege,” Larsen stated.

– Attorney Joseph Larsen of Gregor Wynne Arney as quoted from his brief filed with the Texas Supreme Court as counsel for respondents Franklin Center and Jon Cassidy.

The Texas Supreme Court agreed to hear a University of Texas System lawsuit that tests the attorney-client privilege shield in the face of a Texas Public Information Act challenge.

The attorney general’s office, in a brief on the university system’s behalf, claims the Third District Court of Appeals “improperly engrafted limitations on the attorney-client privilege which could unjustly limit the scope of the privilege throughout Texas.”

No party in the underlying case was satisfied with the lower appellate court’s December 2020 opinion.

The lawsuit as currently styled, University of Texas System v. The Franklin Center for Government and Public Integrity, began with the UT System suing the state attorney general.

Franklin Center, an open records advocacy organization, intervened.

Prior to the lawsuit, there was pressure on the UT-Austin president about the admissions process. The UT System chancellor responded by hiring an independent firm, Kroll Associates Inc., to conduct an independent review.

When the Kroll report was published, Franklin Center asked, under the state public records act, for all emails, interview transcripts and other documents provided as part of the audit.

The UT System asked the attorney general for an opinion and was told that the documents were shielded from disclosure, but with certain exceptions. The UT System then sued the attorney general to challenge those portions of the opinion that allowed some disclosure.

Franklin Center intervened, arguing that all documents were public and not excepted.

The UT System prevailed at trial court on a summary judgment motion, but the Third District, in its opinion, generally did not accept its attorney-client privilege defense.

“The final report includes no legal advice, and the record does not support the UT System’s assertion that the investigation was conducted for the purpose of rendering legal services to the UT System,” the Third District said.

Franklin Center was opposing the UT System’s petition for review.

“The facts show that Kroll was not UT’s attorney, not UT’s ‘attorney representative,’ and not facilitating the provision of legal services to UT,” attorney Joseph R. Larsen wrote for Franklin Center’s reply to the high court.

Larsen is with the Houston firm Gregor Wynne Arney.

Assistant solicitor general Benjamin Wallace Mendelson, arguing for UT System, claims the Kroll documents are protected because Kroll acted as a lawyer’s representative by assisting the UT System general counsel in rendering legal services.

In addition to the UT System’s objections to the Third District opinion, Mendelson states that Franklin Center’s arguments, if accepted, would limit the attorney-client privilege even more.

“In addition to urging this court to adopt similar limitations on the privilege embraced by the court of appeals, Franklin Center suggests, among other things, that the Public Information Act displaces the burden-shifting framework that otherwise governs assertions of the privilege and that records of attorney-client communications, including notes memorializing client interviews, are not privileged,” the state argues.

Oral argument has been set for Jan. 11, 2023.

October 7, 2022 Back to News