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Will external investigations for your organization be protected? Applying the attorney-client privilege in Texas

9/22/23

By: Lynne Finley

In the recent Texas Supreme Court decision, The Univ. of Tex. Sys. v. The Franklin Ctr. For Gov’t & Pub. Integrity. Supreme Court of Texas. Jun 30, 2023. No. 21-0534 (Tex. Jun. 30, 2023), the court provided the framework for all organizations to consider when seeking to investigate concerns over conduct or policies with a third party.  

In this case, a university hired a consulting firm to do an external investigation which culminated in a 101-page final report published on a public website containing findings, recommendations, and suggestions for future best practices. Under the Texas Public Information Act, a requestor asserted that releasing the final report to the public waived all privilege to all the documents used to issue the report and that the consulting firm was not acting as a “lawyer’s representative.”  

The trial court determined that all the documents were privileged, but the court of appeals reversed, finding the consulting firm was not a “lawyer’s representative,” the report did not contain legal advice, the consulting firm did not provide legal services, the external investigation was not performed to advise of facts that would expose the University to legal liability, and all the privilege-log documents be disclosed.  

Under the Texas Public Information Act, a request for public information requires a governmental body to produce the information unless an exception applies. Important to note in this opinion is that a completed investigation made by or for a governmental body is public information and not exempted from disclosure unless it is expressly made confidential under “other law.” In this case, the Court held that the attorney–client privilege found in the Texas Rules of Evidence served as “other law” for purposes of possibility exempting disclosure.   

Texas only requires that communication between qualified persons be made to facilitate the rendition of legal services even if it is not the primary purpose of the communication. In Texas, the focus of the attorney-client 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. A contract is not required to explicitly say legal advice, legal services or attorney-client privilege. Texas looks at the substance of the work described, confidentiality provisions, a direct report to an attorney such as a general counsel, the creation of a privilege log, and the substance of any final report. In this case, these factors demonstrated that the consulting firm was employed by the General Counsel to assist in the rendition of professional legal services and therefore qualified as a “lawyer’s representative.” 

Because the report was intended to be released to the public, no privilege applied. However, the consulting contract specifically required the consulting firm to maintain confidentiality of the underlying documents and information obtained during the investigation and thus did not lose an applicable privilege by the mere release of the report. The release of the report may have resulted in the waiver of privilege of the underlying documents and investigation notes if any significant part of those documents were disclosed in the report through quotes, paraphrasing or content summaries. The Court instructed the trial court to determine if any significant part of the underlying documents were released in the report to waive privilege as to each document.  

Whether you are a governmental body or private sector organization, this case provides a roadmap to protecting the attorney-client privilege through substantive language within a contract to prevent in depth analysis by a court to determine if the parties intended to create an attorney-client privilege regarding the work performed. Whether seeking an investigation of specific allegations of misconduct or determining that your policies are best practices, using the right language in your contract could eliminate a misinterpretation of your intent.  

For more information, please contact Lynne Finley at lynne.finley@fmglaw.com or your local FMG attorney.