The University of Texas System v. the Franklin Center for Government and Public Integrity and Jon Cassidy

Supreme Court of Texas
══════════
No. 21-0534
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The University of Texas System,
Petitioner,

v.

The Franklin Center for Government and Public Integrity
and Jon Cassidy,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

Argued January 11, 2023

JUSTICE LEHRMANN delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Busby, Justice Bland, Justice Huddle, and
Justice Young joined.

JUSTICE DEVINE filed a dissenting opinion, in which Justice Boyd
joined.

Justice Blacklock did not participate in the decision.

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

2
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

3
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

4
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; 1
(2) Interview questions and notes created by Kroll during Kroll’s
interviews of UT System and UT Austin employees and
officials; 2 and
(3) Draft redlined communications from General Counsel
Sharphorn to interviewees that were shared with Kroll. 3
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

1The 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.
2The 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.
3The last category consists of the documents labeled UTS-00723
through UTS-00726.

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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).

6
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. 4
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

Franklin asks the Court to reconsider whether the privilege should
4

apply with special force in the governmental context. We decline this
invitation.

7
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. 5 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

5 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).

8
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).
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 (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—

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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, 6 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.
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

6 To the extent Franklin argues that Kroll’s interview notes do not
qualify as “communications,” we disagree. See Upjohn, 449 U.S. at 386
(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”).

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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.” 7 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

7 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.”

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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.
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

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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

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[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

14
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

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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

16
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

17
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

18
compliance, ethical responsibility, and professional accountability. 8 In
the context of admissions practices, the phrase “beyond reproach”
embodies the notion of legal compliance as a necessary component. 9
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. 10 See Paxton, 509 S.W.3d at 260; Tex. Att’y Gen. Op. No. JC–

8 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”).
9The 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.
10 Although the dissent acknowledges that “magic words aren’t
required,” post at 25 (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 12–
13. The dissent further faults the Agreement’s confidentiality provisions as
being essentially limited to maintaining student privacy. Id. Such a narrow

19
0233, at 6 (2000). By striving to be “beyond reproach,” the System states
a goal that incorporates and also goes beyond legal compliance.
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 18 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

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.

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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. 11

11 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 21 (Devine, J., dissenting). While not sufficient in and of
itself to establish the privilege’s applicability, Ayala’s affidavit goes beyond a

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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 12 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

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.
12 The dissent criticizes Sharphorn’s affidavit because it “was prepared
in connection with other litigation.” Id. at 22 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.

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Kroll confidential. The evidence thus goes well beyond conclusory legal
assertions that Kroll qualified as a lawyer’s representative.
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

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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’

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factual findings, which would not have been privileged to begin with. 13
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.

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. 14

13The System concedes that publication of the legal advice would result
in a waiver, and we agree.
14The 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

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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.

Category 2 Documents: Kroll’s Interview Notes

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

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.

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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; 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

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or paraphrases from individuals Kroll interviewed. 15 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

The last category of documents includes draft correspondence
from Sharphorn to UT employees that the Ayala affidavit describes as

15 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.

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“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

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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.

Debra H. Lehrmann
Justice

OPINION DELIVERED: June 30, 2023

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