IN THE SUPREME COURT OF TEXAS

444444444444

NO. 10-0960

444444444444

IN RE XL SPECIALTY INSURANCE COMPANY AND CAMBRIDGE INTEGRATED

SERVICES GROUP, INC., RELATORS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR WRIT OF MANDAMUS

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Argued November 10, 2011

CHIEF JUSTICE JEFFERSON delivered the opinion of the Court, in which JUSTICE HECHT,

JUSTICEWAINWRIGHT,JUSTICEMEDINA,JUSTICE GREEN,JUSTICE JOHNSON,JUSTICE GUZMAN, and

JUSTICE LEHRMANN joined. 

JUSTICE WILLETT delivered a dissenting opinion. 

We must decide whether, in a bad faith action brought by an injured employee against a

workers’ compensation insurer, the attorney–client privilege protects communications between the

insurer’s lawyer and the employer during the underlying administrative proceedings. We hold that

the privilege does not apply. 

I. Background

XL Specialty Insurance Company is Cintas Corporation’s workers’ compensation insurer. 

XL’s policy included standard provisions requiring Cintas to cooperate in the investigation,

settlement, and defense of a claim. The policy also provided for a one million dollar deductible per

claim. 
Jerome Wagner, a Cintas employee, sought workers’ compensation benefits for a workrelated injury. Melissa Martinez, a claims adjuster with XL’s third party administrator, Cambridge

Integrated Services Group, Inc., denied the claim. In a contested case hearing before the Division

of Workers’ Compensation, the hearing officer determined that Wagner sustained a compensable

injury and was entitled to medical and temporary income benefits. During the course of the

administrative litigation, XL’s outside counsel, Rebecca Strandwitz of Flahive, Ogden & Latson,

P.C., sent communications about the status and the evaluation of the proceedings to Cambridge and

Cintas.

After the workers’ compensation dispute was resolved, Wagner sued XL, Cambridge, and

Martinez for breach of the common law duty of good faith and fair dealing and violations of the

Insurance Code and Texas Deceptive Trade Practices Act. During discovery, Wagner sought the

communications made between Strandwitz and the insured, Cintas, during the administrative

proceedings. XL and Cambridge argued that the attorney–client privilege protected those

communications. After an in-camera inspection, the trial court held that the privilege did not apply.

XL and Cambridge sought mandamus relief from the court of appeals, which denied the

petition. ___ S.W.3d ___, ___. They then petitioned this Court for a writ of mandamus, arguing that

the attorney-client privilege protects the communications.

II. Attorney–Client Privilege in Multi-Party Litigation

Confidential communications between client and counsel made to facilitate legal services are

generally insulated from disclosure. See TEX. R. EVID. 503(b); Huie v. DeShazo, 922 S.W.2d 920,

922 (Tex. 1996). Recognized as “the oldest of the privileges for confidential communications

2
known to the common law,” United States v. Zolin, 491 U.S. 554, 562 (1989) (citation omitted), the

attorney–client privilege promotes free discourse between attorney and client, which advances the

effective administration of justice. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex. 1993). 

But a strict rule of confidentialitymay also suppress relevant evidence. Id. Forthat reason, “[c]ourts

balance this conflict between the desire for openness and the need for confidentiality in

attorney–client relations by restricting the scope of the attorney–client privilege.” Id. The privilege

belongs to the client and must be invoked on its behalf. West v. Solito, 563 S.W.2d 240, 244 n.2

(Tex. 1978).

Texas evidentiary rules define the privilege as follows: 

A client has a privilege to refuse to disclose and to prevent any other person from

disclosing confidential communications made for the purpose of facilitating the

rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client’s lawyer or

a representative of the lawyer; 

(B) between the lawyer and the lawyer’s representative;

(C) by the client or a representative of the client, or the client’s lawyer or a

representative of the lawyer, to a lawyer or a representative of a lawyer

representing another party in a pending action and concerning a matter of

common interest therein;

(D) between representatives of the client or between the client and a

representative of the client; or

(E) among lawyers and their representatives representing the same client. 

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TEX. R. EVID. 503(b). 

1

Rule 503(b) protects not only confidential communications between the lawyer and client,

but also the discourse among their representatives. It is an exception to the general principle that the

privilege is waived if the lawyer or client voluntarily discloses privileged communications to a third

party. See TEX. R. EVID. 511(1). 

XL relies primarilyon the privilege defined inRule 503(b)(1)(C)—which has been variously 2

described as the “joint client” privilege, the “joint defense” privilege, and the “common interest”

privilege. Courts sometimes use these terms interchangeably, but theyinvolve distinct doctrines that

serve different purposes. As we explain below, however, none of them accurately describes the

privilege at issue in this case.

Although many of our evidentiary rules mirror their federal counterparts, see, e.g., FED. R. EVID.

1

801; TEX.R.EVID. 801, there is no federal analogue to our Rule 503. In 1972, the Chief Justice of the United

States proposed to Congress the Rules of Evidence for United States Courts and Magistrates. 56 F.R.D. 183

(1972). The Proposed Rules were drafted by the Judicial Conference Advisory Committee on the Rules of

Evidence and approved by the Judicial Conference of the United States and the Supreme Court. Jaffee v.

Redmond, 518 U.S. 1, 8 n.7 (1996). The Proposed Rules defined nine specific testimonial privileges,

including the lawyer–client privilege, which was contained in Proposed Rule 503. See PROPOSED FED. R.

EVID. 503, reprinted in 56 F.R.D. 183, 235-40 (1972). Congress rejected Proposed Rule 503 in favor of

Federal Rule of Evidence 501’s general mandate that “the privilege of a witness . . . shall be governed by the

principles of the common law as they may be interpreted by the courts of the United States in the light of

reason and experience,” although “in civil actions and proceedings, with respect to an element of a claim or

defense as to which State law supplies the rule of decision, the privilege of a witness . . . shall be determined

in accordance with State law.” FED. R. EVID. 501 (1975) (amended 2011). “Although Congress did not

adopt this rule, courts have relied upon [Proposed Rule 503] as an accurate definition of the federal common

law of attorney–client privilege . . . .” United States v. Spector, 793 F.2d 932, 938 (8th Cir. 1986). 

For ease of reference, we refer to relators XL and Cambridge as “XL.” Their legal arguments are

2

identical, and our conclusion that the privilege does not apply here disposes of both of their claims.

4
A. Joint Client Privilege

The joint client or co-client doctrine applies “[w]hen the same attorney simultaneously

represents two or more clients on the same matter.” PAUL R. RICE, ATTORNEY–CLIENT PRIVILEGE

IN THE UNITED STATES § 4:30 (2011). Joint representation is permitted when all clients consent and

there is no substantial risk that the lawyer’s representation of one client would be materially and

adversely affected by the lawyer’s duties to the other. 2 RESTATEMENT (THIRD) OF THE LAW

GOVERNING LAWYERS § 128 (2000). “Where [an] attorney acts as counsel for two parties,

communications made to the attorney for the purpose of facilitating the rendition of legal services

to the clients are privileged, except in a controversy between the clients.” In re JDN Real

Estate–McKinney L.P., 211 S.W.3d 907, 922 (Tex. App.—Dallas 2006, pet. denied); see also TEX.

R. EVID. 503(d)(5) (noting that communications made by two or more clients to a lawyer retained

in common are not privileged “when offered in an action between or among any of the clients”). 

B. Joint Defense and Common Interest Doctrines

Representations involving multiple clients with separate counsel call for the application of

what have been called the joint defense and common interest doctrines. Courts and parties often

confuse the relevant nomenclature. See In re Teleglobe Commc’n Corp., 493 F.3d 345, 363 n.18 (3d

Cir. 2007) (“[M]uch of the caselaw confuses the community-of-interest privilege (which is the same

as the ‘common-interest privilege’ . . . ) with the co-client privilege.”) (citation omitted). Unlike 3

See also 24 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND

3

PROCEDURE § 5493 (1986) (“Federal courts continue to confuse the allied lawyer doctrine, which applies

when parties with separate lawyers consult together, and the joint-client doctrine, which applies when two

clients share the same lawyer, by using the phrase ‘joint defense privilege’ to mangle the two concepts.”). 

5
the joint client rule, the joint defense and common interest rules apply when there has been sharing

of information between or among separately represented parties. See 1 RESTATEMENT (THIRD) OF

THE LAW GOVERNING LAWYERS § 75 cmt. c (“Co-client representations must also be distinguished

from situations in which a lawyer represents a single client, but another person with allied interests

cooperates with the client and the client’s lawyer . . . .”). 

The joint defense rule applies when multiple parties to a lawsuit, each represented by

different attorneys, communicate among themselves for the purpose of forming a common defense

strategy. In re JDN, 211 S.W.3d at 923. Unlike the common interest doctrine, the joint defense

doctrine applies only in the context of litigation. VINCENT S.WALKOWIAK,THEATTORNEY–CLIENT

PRIVILEGE IN CIVIL LITIGATION 18 (4th ed. 2008). 

The common interest rule (also known as the “community of interest,” “pooled interests,”

or “allied lawyer” doctrine) is more expansive than the joint defense doctrine. The parties must 4

share a mutual interest, but unlike the joint defense doctrine, the common interest rule applies to

“two or more separately represented persons whatever their denomination in pleadings and whether

or not involved in litigation.” 1 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 76

reporter’s note cmt. b; see also RICE § 4:35, 474–75 (“The ‘community of interest’ rule is

distinguished from the ‘joint defense’ rule by the fact that the collaboration between the parties need

Thus, the common interest doctrine is different from the joint client doctrine for the very same 4

reason as the joint defense doctrine: unlike the joint client situation, in the common interest arrangement,

each client has her own lawyer—they are not jointly represented by one lawyer. 2 CHRISTOPHER B.

MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 5:20 (3d ed. 2007); see also 1 RESTATEMENT

(THIRD) OF THE LAW GOVERNING LAWYERS § 76 cmt. a (2000) (noting that the common interest rule “differs

from the co-client rule of [privilege] in that the clients are represented by separate lawyers”). 

6
not be related to a pending legal action.”). Thus, plaintiffs and nonlitigating persons with common

interests can assert this exception to the waiver rule. 1 RESTATEMENT (THIRD) OF THE LAW

GOVERNING LAWYERS § 76 reporter’s note cmt. b (noting that common interest is the preferable term

because it includes “both claiming as well as defending parties and nonlitigating as well as litigating

persons”).

5

III. Texas Rule of Evidence 503(b)(1)(C)—The Allied Litigant Doctrine 

Courts of appeals have generally applied Rule 503(b)(1)(C) to joint defense situations where

multiple defendants, represented byseparate counsel, work together in a common defense. Notably,

6

and in contrast to the proposed federal rule, Texas requires that the communications be made in the 7

See also, e.g., In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001) (“Because the 5

privilege sometimes may apply outside the context of actual litigation, what the parties call a ‘joint defense’

privilege is more aptly termed the ‘common interest’ rule.”). 

See, e.g., In re JDN Real Estate—McKinney L.P., 211 S.W.3d 907, 922 (Tex. App.—Dallas 2006,

6

orig. proceeding [mand. denied]) (“[R]ule 503(b)(1)(C) . . . address[es] the joint-defense privilege, which

applies when multiple parties to a lawsuit represented by different attorneys communicate among

themselves.”); In re Dalco, 186 S.W.3d 660, 666 (Tex. App.—Beaumont 2006, orig. proceeding [mand.

denied]) (“ . . . [T]he ‘joint defense privilege,’ found in TEX.R. EVID. 503(b)(1)(C)[,] . . . [w]hen applicable

. . . ‘cloaks communications with confidentiality where “a joint defense effort or strategy has been decided

upon and undertaken by the parties and their respective counsel.”’” (quoting United States v. Gotti, 771 F.

Supp. 535, 545 (E.D.N.Y. 1991)). 

See PROPOSED FED. R. EVID. 503(b)(3), reprinted in 56 F.R.D. 183, 236 (1972) (protecting 7

communications between a client “to a lawyer representing another in a matter of common interest”); see

also, e.g., In re Santa Fe Int’l Corp., 272 S.W.3d 705, 710 (5th Cir. 2001) (noting that the common interest

privilege applies to both communications between co-defendants in actual litigation and their counsel as well

as to “communications between potential co-defendants and their counsel” (emphasis in original)); United

States v. Schwimmer, 892 F.2d 237, 243–44 (2d Cir. 1989) (“‘The need to protect the free flow of

information from client to attorney logically exists whenever multiple clients share a common interest about

a legal matter,’ . . . and it is therefore unnecessary that there be actual litigation in progress for the common

interest rule of the attorney–client privilege to apply . . . .” (citations omitted)).

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context of a pending action. See TEX. R. EVID. 503(b)(1)(C) (protecting from disclosure 8

communications between a client “to a lawyer . . . representing another party in a pending action and

concerning a matter of common interest therein”) (emphasis added). Although criticized, the 9 10

pending action requirement limits the privilege “to situations where the benefit and the necessity are

at their highest, and . . . restrict[s] the opportunity for misuse.” United States v. Duke Energy Corp.,

214 F.R.D. 383, 388 (M.D.N.C. 2003). Thus, in jurisdictions like Texas, which have a pending

action requirement, no commonality of interest exists absent actual litigation. Accordingly, our

privilege is not a “common interest” privilege that extends beyond litigation. Nor is it a “joint

defense” privilege, as it applies not just to defendants but to any parties to a pending action. Rule

503(b)(1)(C)’s privilege is more appropriately termed an “allied litigant” privilege.11

A number of other states’ evidentiary rules also require communications to be made in the context 8

of pending litigation in order for the doctrine to apply. See, e.g., HAW. R. EVID. 503(b) (protecting

communications made “by the client . . . to a lawyer . . . representing another party in a pending action and

concerning a matter of common interest”); ME. R. EVID. 502(b)(same); MISS. R. EVID. 502(b)(same); N.H.

R. EVID. 502(b) (same); OKLA. STAT. tit. 12 § 2502 (B)(3) (same); S.D. CODIFIED LAWS § 19-13-3 (same). 

In addition, Uniform Rule of Evidence 502(b)(3) also includes a “pending action” requirement. UNIF. R.

EVID. 502(b)(3). 

See also In re Dalco, 186 S.W.3d at 666–67 (“Rule 503(b)(1)(C) appears to attach the common 9

interest ‘privilege’ to confidential communications disclosed in the course of legal services rendered during

some ‘pending action’ and ‘concerning a matter of common interest therein.’ . . . Here, . . . this contractual

relinquishment of Citibank’s confidential or proprietary information to Universal did not occur during any

‘pending action’ and therefore could not concern ‘a matter of common interest therein.’” (emphasis in

original) (citations omitted)). 

See KatharineTraylor Schaffzin, An Uncertain Privilege: Why theCommon Interest Doctrine Does 10

Not Work and How Uniformity Can Fix It, 15 B.U. PUB. INT. L.J. 49, 77–78 (2005) (noting that the pending

action requirement is redundant of other safeguards and harmful because it fails to protect communications

shared between those with a common legal interest unrelated to litigation). 

A leading federal law treatise suggests that the appropriate moniker isthe “allied lawyer doctrine.” 11

24 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5493

8
The allied litigant doctrine protects communications made between a client, or the client’s

lawyer, to another party’s lawyer, not to the other party itself. See, e.g., Robert Bosch, LLC v. Pylon

Mfg. Corp., 263 F.R.D. 142, 146 (D. Del. 2009) (“[T]o qualify for and to maintain continued

protection [under the common interest privilege], the communication must be shared between

counsel.”); WALKOWIAK, at 18 (noting that the joint defense doctrine “does not apply to . . .

communications [made directly to] other parties themselves”). This attorney-sharing requirement 12

makes clear that the privilege applies only when the parties have separate counsel. See, e.g., In re

Teleglobe, 493 F.3d at 365 (“[T]he [common interest] privilege only applies when clients are

represented by separate counsel.”); Griffith v. Davis, 161 F.R.D. 687, 692 (C.D. Cal. 1995) (“The

(1986). Other sources refer to a “joint litigant” exception. See, e.g., James M. Fischer, The Attorney–Client

Privilege Meets the Common Interest Arrangement: Protecting Confidences While Exchanging Information

for Mutual Gain, 16 REV.LITIG. 631, 633–34 (1997); see also Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D.

342, 347 (N.D. Ohio 1999) (“Where several parties, though represented by separate counsel, are on the same

side of a legal dispute and share information for their mutual benefit in that dispute, the ‘joint litigant’

privilege protects ‘attorney–client privileged matters when they are shared with co-parties, even though those

parties are represented by separate counsel.’”)(emphasis added) (citation omitted); In re Sandwich Islands

Distilling Corp., No. 07-01029, 2009 WL 3055199, at *2 (Bankr. D. Haw. Sept. 21, 2009) (“Under Hawaii

law, contrary to federal common law, the joint litigant common interest privilege islimited to co-parties and

their counsel in pending litigation.”). Because the Texas rule has both a pending action and a common

interest requirement, however, the “allied litigant” doctrine more accurately describes our law. 

See also In re Teleglobe Commc’ns Corp., 493 F.3d 345, 364–65 (3d Cir. 2007) (“[T]o be eligible

12

for continued protection, the communication must be shared with the attorney of the member of the

community of interest. . . . The attorney-sharing requirement helps prevent abuse by ensuring that the

common-interest privilege only supplants the disclosure rule when attorneys, not clients, decide to share

information in orderto coordinate legal strategies.” (citation omitted)); United States v. Schwimmer, 892 F.2d

237, 243 (2d Cir. 1989)(“[The joint defense privilege] serves to protect the confidentiality of

communications passing from one party to the attorney for another party where a joint defense effort or

strategy has been decided upon and undertaken by the parties and their respective counsel.”)(emphasis

added). 

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[joint defense] doctrine applies where parties are represented by separate counsel but engage in a

common legal enterprise.”). 

IV. XL has failed to show that the communications between Strandwitz and Cintas are

privileged. 

XL argues that the communications between Strandwitz and Cintas are protected by the

attorney–client privilege, and more generally, the insurer–insured relationship. We have not

recognized a general insurer–insured privilege. Nevertheless, we agree that, under certain 13

circumstances, communications between an insurer and its insured may be shielded from discovery

by the attorney–client privilege. That appears to be the majority rule. See, e.g., 17A LEE R. RUSS

ET AL., COUCH ON INSURANCE § 250:19 (3d ed. 2005) (noting that majority view is that the

attorney–client privilege applies to communications between an insured and its liability insurer when

they concern a potential suit and communications are predominantly intended to be transmitted to

the attorney hired by insurer to defend insured). But for us to reach that conclusion here, XL must

show that its lawyer’s communications are among those protected byRule 503, and it has not done 14

so. 

A. Rule 503(b)(1)(C)’s allied litigant doctrine is inapplicable.

See, e.g., In re Ford Motor Co., 988 S.W.2d 714, 719 (Tex. 1998) (declining to extend the 13

attorney–client privilege to communications between an insured and liability insurer where “at the time [the

insured] made her statements, there was no attorney–client relationship” between her and her insurer); see

also In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 341 (Tex. App.—Texarkana 1999, pet. denied) (holding

that if counsel retained by an insurer acts as an “investigator,” and not as an attorney, then the

communications between the insured and insurer are not privileged). 

Our evidentiary rules have the force and effect of statutes and should be construed accordingly. 14

See In re City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001).

10
Here, XL is the client, and the communications were between XL’s lawyer and a third party,

Cintas, who was not represented by XL’s lawyer (or any other lawyer) and was not a party to the

litigation or any other related pending action. We recognize that Cintas, having contracted for a

substantial deductible, may have shared a joint interest with XL during the administrative

proceedings in the outcome of the claim. But no matter how common XL’s and Cintas’s interests

might have been, our rule requires that the communication be made to a lawyer or her representative

representing another party in a pending action. TEX. R. EVID. 503(b)(1)(C) (protecting certain

communications “by . . . the client’s lawyer . . . to a lawyer or a representative of a lawyer

representing another partyin a pending action and concerning a matter of common interest therein”). 

Those requirements were not met here. 

Part of XL’s difficulty in proving a privilege stems from the fact that, in Texas, workers’

compensation claims are brought directly against a workers’ compensation carrier, with limited

involvement of the employer in the adjudication of the rights to benefits. The insurer, not the

employer, is directly responsible for paying benefits. See TEX.LAB.CODE § 406.031(a) (making the

insurance carrier and not the employer directly “liable for compensation for an employee’s injury

without regard to fault or negligence”). Thus, the insurer, not the insured, is the client and party 15

Under the insurance policy, XL is primarily responsible for the payment of benefits as well as legal 15

fees that arise out of any claim or suit it defends, while Cintas reimburses it for such expenses:

In consideration of a reduced premium, you have agreed to reimburse us up to the deductible

amounts stated in the Schedule at the end of this endorsement for all payments legally

required, including Allocated Loss Adjustment Expense(s), where you have elected to

include such expense as indicated in the Schedule, which arises out of any claim or suit we

defend. 

11
to the pending action, and it retains counsel on its own behalf. In contrast, in a lawsuit involving a

standard liability insurance policy, only the insured is a party to the case, and the insurer typically

retains counsel on its insured’s behalf. Often, as outlined below, those communications fall within 16

one of Rule 503(b)’s subsections. But in a case in which the communications were not made to the

insured’s lawyer, and the insured is not a party to a pending action, as required by the rule, the allied

litigant privilege does not apply. 

B. XL and Cintas were not joint clients.

Forsimilar reasons, the joint client rule of privilege is inapplicable. XL, and XL alone, was

Strandwitz’s client. XL does not argue, nor is there any evidence, that Strandwitz also represented

Cintas. We do not exclude the possibility that an insured and insurer may have a common lawyer

in the workers’ compensation context. “[W]e have never held that an insurance defense lawyer

cannot represent both the insurer and the insured, only that the lawyer must represent the insured and

protect his interests from compromise by the insurer.” Unauthorized Practice of Law Comm. v. Am.

We will remain responsible for the full payment of all claims under this policy without

regard to your ability or intention to reimburse us for the deductible amount, provided that

this does not release you from your obligation to reimburse us. 

See, e.g., Raymond v. N.C. Police Benevolent Ass’n, Inc., 721 S.E.2d 923, 926 (N.C. 2011) (“The 16

most common scenario involving a tripartite attorney–client relationship occurs when an insurance company

employs counsel to defend its insured against a claim. . . . In the insurance context, courts find that the

attorney defending the insured and receiving payment from the insurance company represents both the

insured and the insurer, providing joint representation to both clients. . . . Under these circumstances,

notwithstanding that usually only the insured has been sued, a tripartite attorney-client relationship exists

because the interests of both the insured and the insurer in prevailing against the plaintiff’s claim are closely

aligned.” (citations omitted)); see also Metroflight, Inc. v. Argonaut Ins. Co., 403 F. Supp. 1195, 1197 (N.D.

Tex. 1975) (“Liability insurance policies . . . commonly obligate the insurer to defend actions against the

insured within the policy coverage.”). 

12
Home Assurance Co., 261 S.W.3d 24, 42 (Tex. 2008) (emphasis in original); see also id.(noting that

“[w]hether defense counsel also represents the insurer is a matter of contract between them”); TEX.

DISCIPLINARY RULES PROF’LCONDUCT R. 1.06 (allowing a lawyer to represent more than one client

in a matter if not precluded by conflicts between them), reprinted in TEX.GOV’T CODE, tit. 2,subtit.

G, app. A. We recognize that Texas law assumes that workers’ compensation insurers and

employers will converse about workers’ compensation claims. See TEX. LAB. CODE § 415.002(b)

(providing that an insurance carrier does not commit an administrative violation by allowing an

employer to freely discuss a claim, assist in the investigation and evaluation of a claim, or attend and

participate in a division proceeding); TEX. ADMIN. CODE § 65.10 (same). But before those

communications are privileged, parties must show that the communications come within the ambit

of Rule 503, and XL has failed to make such a showing here. 

Nor do we rule out the possibility that an insurer can be a representative of the insured under

Rule 503, making some of its communications privileged. See Unauthorized Practice of Law, 261

S.W.3d at 43 (noting that “‘an insurer’s right of control generally includes the authority to make

defense decisions as if it were the client “where no conflict of interest exists”’” (emphasis in

original)(citation omitted)); see also TEX. R. EVID. 503(a)(2), 503(b)(1)(A),(C),(D). But XL has

neither pleaded nor proved that this is the case. 

Both sides argue forcefully that sound policy favors their position. Whether recognizing a

privilege here is good policy is another matter; we conclude only that the communications here are

not within the allied litigant or joint client privileges. 

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C. The communications are not privileged under subsections (A), (B), (D), or (E). 

XL also argues that the communications are privileged under Rule 503(b)(1)(A), which

protects communications “between the client or a representative of the client and the client’s lawyer

or a representative of the lawyer.” TEX. R. EVID. 503(b)(1)(A). According to XL, the insurer and

insured are “representatives” of each other. Texas Rule of Evidence 503(a)(2) defines

“representative of the client” as:

(A) a person having authority to obtain professional legal services, or to act on

advice thereby rendered, on behalf of the client, or

(B) any other person who, for the purpose of effectuating legal representation for

the client, makes or receives a confidential communication while acting in the

scope of employment for the client.

TEX. R. EVID. 503(a)(2). 

Cintas could not have been a “representative of the client,” as it did not have the authority

to obtain legal services for its insurer, XL. For the same reason, Cintas could not act, on XL’s

behalf, on any advice “thereby rendered”—that is, rendered as a result of it having obtained counsel

for XL. XL does not contend, nor is there any proof, that Strandwitz represented both XL and

Cintas, so Cintas does not qualify as a “client,” either. Thus, neither subsections (A) nor (D) protects

the communications. See TEX. R. EVID. 503(b)(1)(D) (shielding communications “between

representatives of the client or between the client and a representative of the client”). XL does not

contend that any other provision applies. Subsection B, which involves communications between

14
the lawyer and the lawyer’s representative, is inapposite, as is subsection E, which pertains to 17

multiple lawyers representing the same client. 

18

D. XL’s affidavit does not support a privilege for communications to Cintas.

To support its privilege claim, XL submitted the claims adjuster’s affidavit. Martinez stated

that Cambridge retained Strandwitz on XL’s behalf and that Strandwitz would: 

[P]rovide communication to Cambridge relating to their professional services, their

opinions associated with those professional services and also provide information

necessary to the proper rendition of those services. . . . [T]he records are not

disclosed to anyone who is not an employee of Cambridge, XL or in furtherance of

the provision of the professional legal services. 

(emphasis added). This affidavit speaks only to communications between XL’s law firm and its

clients, not to communications between XL’s law firm and the employer Cintas. Furthermore, the

affidavit does not purport to establish any privilege extending to the communications between

Strandwitz and Cintas. The trial court noted this and ordered production of only those documents.19

We conclude that the trial court acted within its discretion.

See TEX.R.EVID.503(a)(4) (defining “representative of the lawyer” as either a lawyer’s employee 17

or an accountant).

See id. R. 503(b)(1)(E) (protecting communications “among lawyers and their representatives 18

representing the same client”).

After reviewing the documents in camera, the trial court stated that it had determined some were 19

not privileged “mainly because they are communications with a Kelli Green who is the representative for

Cintas, which I believe was the employer.” The court continued: “And they do not appear to be documents

as described by Ms. Martinez in the affidavit . . . I think there is no evidence to support that communications

with Ms. Green from Cintas are privileged, and so I’m going to order those produced but only those

produced.” 

15
V. Conclusion 

The attorney–client privilege shields otherwise relevant information from discovery. As a

result, we construe it narrowly to “encourage full and frank communication between attorneys and 20

their clients and therebypromote broader public interests in the observance of law and administration

of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). While XL asserts that the

attorney–client privilege protects communications between an insurer and its insured, it has not

brought the relevant communications within Rule 503’s parameters. Because the documents are not

protected from discovery under the allied litigant doctrine or any other part of Rule 503, we deny

relief. TEX. R. APP. P. 52.8(a).

____________________________________

Wallace B. Jefferson

Chief Justice

OPINION DELIVERED: June 29, 2012

See Hyman v. Grant, 112 S.W. 1042, 1044 (Tex. 1908)(“As the rule of privilege has a tendency

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to prevent the full disclosure of the truth, it should be limited to cases which are strictly within the principle

of the policy that gave it birth.”). 

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