In Short

The Situation: A Texas trial court held that certain documents referenced in a report authored by a non-lawyer consultant hired by the University of Texas System (the "System") were privileged because the consultant acted as a "lawyer's representative" as provided in Rule 503 of the Texas Rules of Evidence ("TRE 503"). The court of appeals reached the opposite conclusion and reversed, and the Supreme Court of Texas granted the System's petition for review.

The Result: In a 6–2 decision, the Court held that the non-lawyer consultant was acting as a "lawyer's representative" under Texas law and therefore privilege attached to the documents at issue. Further, while publication of the report on the University of Texas at Austin ("UT Austin") website did not "constitute a wholesale waiver of the privilege," privilege might have been waived as to any documents about which the report revealed a "substantial part." The Court remanded to the trial court for further proceedings on that issue.

Looking Ahead: As noted, the Texas Supreme Court remanded the question of whether the published final report waived privilege as to specific documents. Beyond those specific determinations, this opinion clarifies the standard for determining when a non-lawyer is acting as a "lawyer's representative" for purposes of TRE 503, and provides helpful guidance for protecting the privilege when conducting investigations under Texas law

In a case with potential ramifications for internal...

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