outside counsel

At a specially called meeting Monday, the UT System Board of Regents voted to address issues of attorney-client privilege that have arisen during the ongoing investigation of Regent Wallace Hall, including waiving the privilege in an unspecified, limited manner as recommended by
outside counsel.

The motion, filed by Regent Jeffery Hildebrand, recommended the board authorize Chairman Paul Foster to seek the opinion of the attorney general regarding the obligations and preservations of attorney-client privilege during the ongoing impeachment proceedings. Gov. Rick Perry appointed Hildebrand to the board
in February.

The board passed the motion with six supporting votes, while regents Hall, Brenda Pejovich and Alex Cranberg abstained. In the meeting, Hall said he declined to vote because of his involvement in the issues discussed in the motion but said he otherwise would have voted against it. Pejovich and Cranberg did not provide reasons for their
abstentions.

Attorney-client privilege allows certain communications between clients and their attorneys to be confidential and remain private, unless a court forces a
disclosure.

Questions about the limits of attorney-client privilege arose last month when Barry Burgdorf, former UT System vice chancellor and general counsel, said he could not disclose certain information in his testimony in front of the House Select Committee on Transparency in State Agency Operations. The committee is currently investigating Hall for overstepping his duties as a regent and conducting a “witch hunt” against President William Powers Jr.  

In his testimony, Burgdorf said “there is a clear intent to get rid of Bill Powers,” but declined to answer other questions on the basis of attorney-client privilege. 

Burgdorf stepped down in March, several months after his review of a UT School of Law forgivable loan program, which concluded Powers was unaware of the program when it was ongoing. Burgdorf said Hall was displeased the review did not implicate Powers in the $500,000 forgivable loan granted to Larry Sager, former dean of the law school

“It’s my understanding that Regent Hall wanted [the report] to be more of a look at President Powers’ involvement,” Burgdorf said in his testimony.

At a specially called board meeting in October, Foster requested a new examination of the board’s responsibilities and treatment of transparency as a result of the ongoing investigation against Hall.“In light of [the recent focus on best practices for state governing boards], I believe today is the right time to begin a new discussion on the best ways this board should operate going forward,” Foster said in the meeting. “I have spent [a] significant amount of time thinking about how we can fully discharge our responsibility in the most efficient and transparent way … I am sure each member of the board has done the same.”

The House Select Committee on Transparency will resume hearing testimony Tuesday and Wednesday, though Hall is not expected to testify.

At the request of President William Powers Jr., UT has chosen a private legal team with noted experience defending affirmative action to represent the University in Fisher v. University of Texas at Austin.

UT has selected lawyers from the profitable Washington D.C. law firm Latham & Watkins instead of state Attorney General Greg Abbott and his lawyers, who hold the responsibility of representing the University and have defended UT’s position at the district court level through the 5th U.S. Circuit Court of Appeals.

Fisher v. University of Texas was filed in 2008, when two UT students were denied admission. The two contended that the University’s admissions policies, which take race into consideration when not automatically admitted as the top percentile, violated the plaintiff’s right to equal protection of the laws under the 14th Amendment. Rachel Michalewicz has since withdrawn from the suit and Abigail Fisher, now a senior at Lousiana State University, is the only remaining plaintiff.

In a March 29 letter to the state Attorney General’s office requesting the use of outside counsel, Powers stated that the University was at “critical juncture for briefing and argument before the Supreme Court.” Powers also mentioned that such counsel would possess significant experience in higher education and the Supreme Court.

The private legal team includes attorneys Maureen Mahoney and Scott Ballenger, who both successfully defended University of Michigan’s affirmative action program in the landmark 2003 Supreme Court decision Grutter v. Bollinger.

Former U.S. solicitor general Greg Garre, who represented the federal government before the Supreme Court from 2008 to 2009, heads the legal team. Garre has argued a total of 34 cases before the Supreme Court.

The law team was not available for comment on the case since the proceedings are ongoing, Latham & Watkins attorney Scott Ballenger said.

“We’re honored to have been retained by the University in this important case and look forward to presenting our arguments to the Supreme Court,” Ballenger said.

Patricia Ohlendorf, vice president for legal affairs, said the legal team’s experience in successfully briefing and defending Michigan before the Supreme Court in 2003 was “very significant” in their selection.

“UT believes that in order to achieve a diverse student body the admission of those freshmen students not admitted through the percentage plan must be done through a full holistic review that includes consideration of many factors, including race and ethnicity,” Ohlendorf said. “This type of holistic review is based upon the 2003 decision by the Supreme Court in Grutter v. Bollinger.”

UT was “absolutely not” concerned with the previous performance of the state Attorney General’s office in defending the case, Ohlendorf said.

“The Attorney General’s office, specifically Solicitor General Jonathan Mitchell and Assistant Solicitor General Jody Hughes, did excellent work on the case,” Ohelndorf said. “It was agreed that if we could get the team who had briefed and argued Grutter v. Bollinger in the U.S. Supreme Court and their Supreme Court practice leader, that it would bring very special expertise and considerable Supreme Court experience to the case.”

In a response letter to Powers authorizing the use of outside counsel, Daniel Hodge, first assistant Attorney General, said Abbot’s office was “ready, willing and able to continue representing the University of Texas in the Fisher case,” but was still willing to defer this decision to the University.

The Supreme Court is expected to schedule oral arguments in October or early November, and issue a decision in the spring or summer of next year.