Conditionally Grant and Opinion Filed August 26, 2015 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-00813-CV IN RE TEXAS HEALTH RESOURCES AND TRUMBULL INSURANCE COMPANY, Relators Original Proceeding from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. 15-02252 

### OPINION Before Chief Justice Wright a nd Justices Bridges and Brown Opinion by Chief Justice Wright This petition for writ of mandamus concerns the trial court’s July 1, 2015 order that requires production of a portion of a January 15, 2015 note maintained in the file related to a claim on an insurance policy written by Trumbu ll Insurance Company. After inspecting the document in camera , we conclude the trial court abused it s discretion in ordering portions of the document produced. Factual and Procedural Background This is a lawsuit filed by Nina Pham, a nurse who contracted the E bola virus while caring for a patient at Texas Health Presbyterian Hosp ital Dallas. Shortly after learning Pham had contracted the Ebola virus, Presbyterian filed a firs t report of injury on beha lf of Pham. Pham is presently receiving workers’ compensation benefits.–2– Texas Health Resources is the corporate pare nt of Presbyterian. Pham contends that Texas Health Resources failed to properly prepare its affiliated hos pitals, including Presbyterian, to respond to Ebola and that Texas Health Resour ces, in an attempt to mitigate the economic and reputational damage of the inci dent, improperly invaded Pham’s privacy while she was being treated as a patient at Presbyt erian. She has brought causes of action against Texas Health Resources for negligence, negligen t undertaking, gross negligence, pr emises liability, invasion of privacy, and fraud. Texas Health Resour ces is the only defendant in the case. In conjunction with its answer, Texas Health Resources filed a plea in abatement and plea to the jurisdiction in which it contended that Pham’s claims should be dismissed or abated because the Texas Department of Insurance Di vision of Workers’ Compensation has exclusive jurisdiction over the question wh ether Texas Health Resources was Pham’s employer under the Texas Workers’ Compensation Act at the time she contracted the Ebola vi rus. Around the same time, Trumbull Insurance Company, the insurer who wrote the single insurance policy that provides workers’ compensation and employers’ li ability coverage to Texas Health Resources and to Presbyterian as an addi tional insured under the policy issued to Texas Health Resources, 1 sought a benefit review confer ence with the Division of Wo rkers’ Compensation concerning whether Texas Health Resources and Presbyterian were Pham’s co -employers for purposes of the workers’ compensation act. 2 Pham sought a temporary re straining order and temporary

1 The policy in this case is a “standard po licy,” which is the form of policy approved for use by the Texas Department of Insura nce. T EXAS B ASIC M ANUAL OF R ULES , C LASSIFICATIONS AND E XPERIENCE R ATING P LAN FOR W ORKERS ’ C OMPENSATION AND E MPLOYERS ’ L IABILITY I NSURANCE Rule I(B). Part One of the standard po licy provides coverage for the statutory obliga tion of an employer to provide benefits for employees as required by the workers’ compensation law. Id. Rule II(A)(1). Part Two of the standa rd policy provides employers’ liability coverage for the legal obligation of an employer to pay damages because of bodily injury by accide nt or disease sustained by an employee if the injury arises in the course of employment. Id. Rule II(B)(1), (2). Texas workers’ compensa tion insurance may be provided only by a standard policy or by a certified Texas self-insurance policy. Id. Rule II(A)(2). Purchase of a standard policy allows an employer to receive the protections afforded to workers’ compensation subscribers under the Texas Labor Code. See generally T EX

. L AB

. C ODE A NN . §§ 406.002, 406.003, 406.052 (West 2015). 2 The parties dispute whether Texas Health Re sources and Presbyterian were co-employers of Pham for purposes of the Texas Worker s’ Compensation Act. Under the workers’ compensation act, “[r]ecovery of workers’ compensation benefits is the exclusive remedy o f an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employe e of the employer for the death of or a work-related injury sustained by the employee.” T EX

. L AB

. C ODE A NN

. § 408.001(a) (West 2015). The entity with the “right to control” the employee at the time of an accide nt is the “employer” for workers’ compensation purposes. See Archem v. Austin–3– injunction seeking, among ot her things, to prevent Texas Health Resources or Presbyterian from claiming or designating Pham as an employee of Texas Health Resources before any other adjudicative body in a manner that w ould affect the case in the trial court, to restrain the benefit review conference, and to prohibit Texas Hea lth Resources and Presbyterian from submitting any of the matters then pending be fore the trial court for adjudi cation before any other court, tribunal, or administrative agency. Pham also served Texas Health Resources and Trumbull with subpoenas seeking the testimony of corporate repr esentatives of Texas Health Resources and Trumbull at the temporary injunction hearing and requiring the production of documents prior to the date of the temporary injunction hearing. The trial court granted and subsequently extended by agreement of the parties a temporary restraining order prohibiting Texas H ealth Resources and Trumbull from “undertaking any act or attempt to adjudicate whether THR a nd Presbyterian are co-employers of Nina Pham for purposes of application of the Workers’ Compensation Act in front of the Division of Workers Compensation.” The trial court also ordered discovery, incl uding the production of documents, on the issues raised in the plea in ab atement, plea to the juri sdiction, and application for temporary injunction. The trial court orde red that the discovery take place before the expiration of the temporary restraining order. Among the documents responsive to the subpoena was a January 15, 2015 claim note, specifically the 1/15/2015 — 1:17 p.m. entry on pa ges 6–8 of the “Part II —Claim Diary Notes,” that is the subject of this peti tion for writ of mandamus. The not e was written by Lisa Zacchia, a

Indus., Inc. , 804 S.W.2d 268, 269 (Tex. App.—Houston [1st Dist.] 1991, no writ). The concept of joint control shared by dual or co-employe rs has been found applicable in work ers’ compensation insurance cases. See Port Elevator-Brownsville v. Casados , 358 S.W.3d 238, 242 (Tex. 2012) (concluding employee of staffing compan y was covered by both temporary employer’s and staffing company’s workers’ compens ation insurance); Wingfoot Enters. v. Alvarado , 111 S.W.3d 134, 143 (Tex. 2003) (holding that excl usive-remedy provision applied to both temporary staffing company and client company); Brown v. Aztec Rig Equip., Inc. , 921 S.W.2d 835, 844 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (upholding contractual provision in which two companies e xpressly agreed to be co-employe rs for workers’ compensation i nsurance purposes, and extending protection of exclusiv e-remedy provision to both). When two en tities have joint control over an employ ee’s work, they are co-employers. See White v. Liberty Eylau Sch. Dist. , 880 S.W.2d 156, 159 (Tex. App.—Texarkana 1994, writ denied).–4– claims adjustor employed by Th e Hartford. The mandamus reco rd shows that Hartford and Trumbull are affiliated entities and Hartford ad ministers policies and processes claims for Trumbull. The note documents a conversation among Zacchia, Don Collins, associate general counsel for Texas Health Resources, and Liz Spurgeon, risk manager for Texas Health Resources. At least with respect to some porti ons of the note, the note does not reveal whose thoughts are reflected in the note. 3 According to Trumbull, the note was included in a file maintained to document communications and activi ties related to the investigation and defense of claims under the employers’ liability portion of the Texas Health Resources workers’ compensation and employers’ liability policy. All of the notes were made after Pham sent a demand letter outlining her claims to Texas Health Resources and Presbyteri an. The note that is the subject of the petition for wr it of mandamus was made before Pham filed suit against Texas Health Resources. Texas Health Resources and Trumbull objected to the production of the note and certain other notes in the sa me file, asserted the lawyer–c lient privilege and work product privilege, and withheld the documents. Pham argued that the communica tions withheld were discover able and sought to compel their production. Followi ng a hearing and inspection of the w ithheld documents, the trial court signed an order compelling production of only portions 4 of a single note—the January 15, 2015 1:17 p.m. claim note that is the subject of this petition for writ of mandamus. Availability of Mandamus Relief Pham argues that mandamus relief is not appr opriate because interlocutory review of the trial court’s determination of the application for temporary injunction provides an adequate

3 Based on questions asked by the trial judge at the hearing on the motion to compel production, Pham suggests that Ken Kramer, also assistant general counsel for Texas Health Resources, and Dean Butler, an underwriting specialist for Hartford Fire, were also parties to the conversation. No evidence in the manda mus record supports this assertion. 4 Texas Health Resources and Trumbull argue that if a court conc ludes that a document is covered by the lawyer–client privilege the entire document is subject to the privilege and a court may not order portions of the document produced even if the portions ordered p roduced do not reference privileged matters. Because of our disposition of the remainder of Texas Health Resources’ points, we do not reach t his argument.–5– appellate remedy for the harm that relators contend they will suffer if the trial court’s order is allowed to stand. We reject th is argument. Mandamus may issue when a trial court erroneously orders the production of privileged information, and no other adequate remedy at law exists. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding). An order that erroneously compels disclosure of privileged information, such as documents covered by the attorney–client privilege, that materially affects the rights of the aggrieved party cannot be cured by reversal on appeal. Walker , 827 S.W.2d at 843. As our sister court ha s noted, “Clearly, once privileged information is disclose d, there is no way to retrieve it; therefore, mandamus is an appropriate remedy to prevent the public ation of confidential documents.” Pittsburgh Corning Corp. v. Caldwell , 861 S.W.2d 423, 424 (Tex. App.—Houston [14th Dist.] 1993, no writ). And the supreme court has pointed out that a party a sserting privilege who is forced to disclose documents and await appellate revi ew “would lose the benefit of the privilege if the documents at issue are disclosed, even if its assertions of privilege were later upheld on appeal.” In re E.I. DuPont de Nemours , 136 S.W.3d 218, 222–23 (Tex. 2004) (orig. proceeding). Nothing in the mandamus record indicates that th e trial court or the parties have agreed to stay the effect of the trial cour t’s order pending determination of any interlocutor y appeal that may be filed from the ultimate order on the appli cation for temporary injunction. In fact, to the contrary, the petition for writ of mandamus states that because the trial j udge believed that the requested discovery was relevant to Pham’s request for injunctive relief, the trial court stayed the implementation of the order compelling disclosure only on the condition that relators agree to the extension of the temporary restraining order. For that reason, we cannot conclude that the interlocutory appeal of the tria l court’s order with respect to the temporary injunction will provide an adequate opportunity fo r appellate review of the order.–6– We also reject Pham’s suggestion that to the extent that the note discusses strategic considerations with respect to the issue of co-employment, that strategy has already been revealed in this litigation and thus Texas Health Resources will not be harmed by the revelation of any privileged conversations surrounding those strategic de cisions. The argument could provide an equally compelling basis for arguing th at Pham’s communications with her attorneys should be revealed to the extent that they concern matte rs of litigation strategy that have already been implemented by Pham in this case. Lawyer–Client Privilege Pham contends the lawyer–client privilege is inapplicable to th e January 15, 2015 claim note because the note was written by a third party, insurance claims adjustor Lisa Zacchia, and was not between attorneys and clients. Ther e is no general privilege between insurance companies and their insureds. In re XL Specialty Ins. Co. , 373 S.W.3d 46, 53 (Tex. 2012). The absence of a general insurer–in sured privilege does not preclud e the applicability of other recognized privileges that arise in the course of the insurer– insured relationship, however. Confidential communications between an attorn ey and client “promote effective legal services,” which “in turn promote[ ] the broader societal interest of the effective administration of justice.” In re Southpak Container Corp. , 418 S.W.3d 360, 364 (Tex. App.—Dallas 2013, orig. proceeding) (quoting Republic Ins. Co. v. Davis , 856 S.W.2d 158, 160 (Tex. 1993) (orig. proceeding)). Rule 503 of the Texas Rules of Evidence provides that a client may refuse to disclose and prevent any other person from disc losing “confidential communications to facilitate the rendition of professiona l legal services to the client: . . . between the client’s representatives or between the client and the cl ients’ representative.” T EX
. R. E VID . 503(b)(1)(D). 5 A

5 Because we conclude that the parties to the note that is the subject of this petition were all either clients or client repres entatives as those terms are defined in the Texas Rules of Evidence, we do not reach Texas Health Resources and Tr umbull’s alternate arguments tha t the joint client or the allied litigant doctrin es apply to the communication. See T EX

. R. E VID . 503(b)(1)(C).–7– communication is “confidential” if it is not intended to be disclosed to th ird persons other than those to whom disclosure is made “in furtheran ce of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” T EX
. R.
E VID . 503(a)(5). “A ‘client’ is a person, public offi cer, or corporation, association, or other organization or entity—whether public or priv ate—that: (A) is render ed professional legal services by a lawyer; or (B) consults a lawyer with a view to obtaining professional legal services from the lawyer.” T EX
. R. E VID . 503(a)(1). A “client’s repr esentative” includes “(A) a person who has authority to obtain professional legal se rvices for the client or to act for the client on the legal advice rendered; or (B) any othe r person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.” T EX
. R. E VID . 503(a)(2). Subpart A of section 503(a)(2) adopts what is known as the “control group” test for determining who falls within the coverage of the privilege afforded to communicati ons with client representatives, while subpart B adopts the “subject matter” test. In re Sea Mar Mgmt., Inc. , No. 14-98-01095-CV, 1999 WL 33219365, at *3 (Tex. App.—Houston [14th Dist.] Jan. 28, 1999, orig. proceeding) (not designated for publication). The subject–matter te st protects a broader ra nge of communications than the control–group test, including communi cations made by indi viduals outside the corporation’s control group. In re Avantel, S.A. , 343 F.3d 311, 318 (5th Cir. 2003) (applying Texas law). The lawyer–client privilege “protects not only confidential communi cations between the lawyer and client, but also the disc ourse among their representatives.” In re XL Specialty Ins.
Co. , 373 S.W.3d at 49–50. Under Rule 503(a)(2), if a pers on is authorized by the client to obtain legal services or act on legal a dvice on behalf of the client or to make or receive confidential communications with respect to legal services, that person is a client’s repr esentative even if the–8– person is not an employee of the client. See, e.g. , In re Segner , 441 S.W.3d 409, 412 (Tex. App.—Dallas 2013, no pet.) (“[A]lthough Carter is not an employee of the trustee’s accounting firm, he was hired by the trustee and given authority to obtain and act on legal advice on behalf of the trustee.”). Insurance companies typically have the duty to conduct the defense of the insured under a liability policy, including the authority to select, employ, and pay the attorney. See Nat’l Tank Co. v. Brotherton , 851 S.W.2d 193, 199 (Tex. 1993) (orig. proceeding) (“[L]iability policies typically vest the insurer with authority to hire counsel and conduct the de fense of the insured.”); Emp’rs Cas. Co. v. Tilley , 496 S.W.2d 552, 558 (Tex. 1973). Such liability policies “typically give the insurer ‘complete and excl usive’ control of that defense,” Unauthorized Practice of Law
Comm. v. Am. Home Assur. Co. , 261 S.W.3d 24, 27 (Tex. 2008), incl uding the ability to obtain professional legal services on behalf of th e insured. For that reason, under the proper circumstances, communications between an in surer and its insured may be shielded from discovery by the lawyer–client privilege. See In re XL Specialty Ins. Co., 373 S.W.3d at 53; In
re Fontenot , 13 S.W.3d 111, 114 (Tex. App.—F ort Worth 2000, no pet.); Caldwell , 861 S.W.2d at 424–25. The supreme court has held that with rega rd to workers’ compensation policies the insurer is not a representati ve of the insured, however. See In re XL Specialty Ins. Co. , 373 S.W.3d at 54. The supreme court reasoned that under Texas law, in a workers’ compensation case, “the insurer, not the insured, is the clie nt and party to the pe nding 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.” Id. Pham argues that the reasoning of In re XL Specialty applies equally to this case.–9– As the supreme court explained, the outcome in In re XL Specialty was based on the unique nature of workers’ compensation claims. In Texas, a claim for workers’ compensation is against the insurance carrier, not against the employer. Id. Thus, in defending a workers’ compensation claim, the insurance carrier is not defending the employer, but rather is defending itself. Id. For that reason, in the circumstances presented by In re XL Specialty , the communications among the insurer and th e employer were not privileged. Id. Here, the mandamus record establishes that the insurer kept two different files of notes. The first file included notes regarding the adju stment of the workers’ compensation claim. Those notes are not at issue. The note that is at issue here was—according to the affidavit evidence presented by Texas Health Resour ces and Trumbull—made in the course of investigating Texas Health Resource’s claim unde r the employers’ liability portion of the policy and included in the file opened for documenting ac tivities related to that claim. Trumbull and Texas Health Resources argue that because the note ordered produced was made in the course of investigating the employers’ liability claim, in which Trumbull represents the employer rather than itself as insurer, the holding in In re XL Specialty is not applicable to the note. Employers’ liability insurance provides coverage for an em ployers’ legal obligation to pay damages because of bodily injury by accident or disease sustained by an employee if the injury arises out of or in the course of employment. T EXAS B ASIC M ANUAL OF R ULES , C LASSIFICATIONS AND E XPERIENCE R ATING P LAN FOR W ORKERS ’ C OMPENSATION AND E MPLOYERS ’ L IABILITY I NSURANCE Rule II(B)(1), (2). A noted treatise explains: Employers’ liability insurance is trad itionally written in conjunction with workers’ compensation insurance and is intended to fill gaps by providing protection in those situations in which [t he] employee has [the] right to bring [a] tort action despite provisions of [the] workers’ compensation statute, or [the] employee is not subject to workers’ compensation law, and generally these two types of coverage are mutually exclusive. 9A C OUCH ON I NS . § 132:57 n.34.–10– We agree that the reasoning of In re XL Specialty does not apply to cases involving employers’ liability insurance coverage. Because a workers’ compensation claim is brought directly against the insurance carrier, the insurer, not the employer, is di rectly responsible for paying the benefits. In re XL Specialty Ins. Co. , 373 S.W.3d at 54. In c ontrast, with regard to the claims in this case that may be subject to employers’ liability coverage , “only the insured is a party to the case, and the in surer typically retain s counsel on its insured’s behalf.” Id. The evidence before the trial court show ed that the January 15, 2015 claim note was a communication between Texas Hea lth Resources and its insurer. The affidavit of Brian Corrigan, who is the director of claims for Trumbull 6 and who is Zacchia’s supervisor, established that Trumbull issued a workers’ co mpensation and employers’ liability policy to Texas Health Resources and Pres byterian. According to Corriga n, the policy provided that Trumbull would defend claims that fell within the coverage provided by the employers’ policy, which included claims for bodily injury by diseas e that arose out of and in the course of the injured employee’s employment by the insured. Corrigan further testifie d that upon receiving Pham’s demand letter on December 9, 2014, a clai m file was opened for th e employers’ liability policy to maintain claim diary notes that in cluded communications a nd documentation of the activities associated with the investigation and evaluation of Pham’s claims and the defense of Texas Health Resources pursuant to the duty to defend under the employers’ liability policy. Nothing in the mandamus reco rd refutes this testimony. 7 The January 2015 claim note shows on

6 Pham attempts to paint this statement as a fabrication because other evidence in the mandamus r ecord shows that Hartford write s insurance policies through various affiliate d entities including Trumbull and that Trumbull has no employees of its own. Corri gan did not swear he was employed as director of claims “by” Trumbull, but rather that he was employed as director of claims “for” Trumbull. His statement is consistent with the business model described. We also reject Ph am’s assertion that the involvement of Hartford employees in di scussions concerning the case waived privilege because Hartford is a third-party to the insurer– insured relationship. The mandamus recor d refutes that contention. 7 Pham argues that Texas Health Resources’ insistence that it is Ph am’s co-employer and that the claims asserted in her lawsuit with respect to her illness are covered by workers’ comp ensation insurance is inconsistent with th e position that the note was made in conne ction with the investigation of a potential claim under th e employers’ liability portion of the policy. We disagree. Pham’s demand letter ra ised the possibility that claims would be asserted that would ultimately be found to fall within both asp ects of the coverage under the policy. The fact that Texas Health Resources has chosen to pursue a strategy which, if su ccessful, would implicate coverage only under the workers’ compens ation aspect of–11– its face that it involved representatives of Texas Health Resources, including a lawyer, who were involved in the decision-making process regarding the defense of the claim and the adjustor who was working on the employers’ liability claim. The claim note shows on its face that the note documented discussions of issues related to the defense of the claim. Taken together, this evidence established that the communication re flected in the claim note was a confidential communication protected by the lawyer–client privilege. Crime–Fraud Exception Pham argues that the only confidence that could arguably be revealed by the January 2015 claim note is that Texas Health Resources knows her real employer was Presbyterian, not Texas Health Resources. She contends that the trial court’s order was appropriate because the trial court could have reasonably concluded that the crime–fraud exception applies to the claim note because Texas Health Resources’ adopti on of that position amounted to fraud. The crime–fraud exception to the lawyer–cli ent privilege renders the lawyer–client privilege inapplicable “[i]f the la wyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client kn ew or reasonably should have known to be a crime or fraud.” T EX
. R. E VID . 503(d)(1). The apparent reason for the existence of the exception is an intention to avoid permitting an attorney to aid a client’s fraudulent conduct by the attorney’s silence. In re Gen. Agents Ins. Co. of Am., Inc. , 224 S.W.3d 806, 820 (Tex. App.— Houston [14th Dist.] 2007, orig. proceeding). A party who asserts the crime–fraud exception must first establish a prima facie case of fraud, showing a violation sufficiently serious to defeat the privilege. Freeman v. Bianchi , 820 S.W.2d 853, 861 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding), mand. denied sub

the policy for the claims related to Pham’s illness does not prev ent Texas Health Resources from discussing the possibility of alternate outcomes and the legal issues pertinent to su ch a possibility with its insurer.–12– nom. Granada Corp. v. Hon. First Court of Appeals , 844 S.W.2d 223 (Tex. 1992). The prima facie case requirement is met when the party as serting the exception offers evidence establishing the elements of fraud and establishing that th e fraud was ongoing or about to be committed when the privileged communication occurred. In re Gen. Agents Ins. Co. of Am , 224 S.W.3d at 820. Once a prima facie case of crime or fraud is es tablished, the court must then find some valid relationship between the document in questi on and the prima facie crime or fraud. Cigna Corp. v. Spears, 838 S.W.2d 561, 569 (Tex. App.—San Antonio 1992, orig. proceeding). Although Texas Health Resources and Trumbu ll argue that the trial court may not consider the documents themselves in determin ing whether the party seeking discovery has met the requirements of the crime–fraud exception, th e majority of case law is to the contrary. See In re Gen. Agents Ins. Co. of Am. , 224 S.W.3d at 819 (“A court may look to the document itself to determine whether a prima facie case has been established.”); Cigna Corp. , 838 S.W.2d at 569 (same); Freeman , 820 S.W.2d at 861 (“The documents themselv es may be utilized to establish a prima facie case.”). Indeed, as the supreme court has pointed out, when the documents themselves are the only evidence of fered to establish an exception to a privilege, it is proper for a reviewing court to review the documents to de termine if they clearly support the exception. Granada Corp. v. Hon. First Court of Appeals , 844 S.W.2d 223, 225 (Tex. 1992) (orig. proceeding). Thus we cannot conc lude that the trial court abused its discretion in reviewing the documents in camera in this case. The rules of evidence do not further define “t o enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” The El Paso Court of Appeals has taken a broad view of the crime–fraud exception, concluding that it extends not only to crimes and ac tionable common-law fraud, but also to attempts to perpetuate a fraud on the court. See Volcanic Gardens Mgmt. Co. v. Paxson , 847 S.W.2d 343, 347 (Tex.–13– App.—El Paso 1993, orig. proceeding) (concluding docum ents establishing an effort to attribute prior injuries to accident which formed basis of suit fell within crime–fraud exception). The El Paso court described the exception as enco mpassing, “all multifarious means which human ingenuity can devise and which are resorted to . . . to get advantage over another by false suggestions or by suppression of truth, and incl udes all surprise, trick, cunning dissembling, and any unfair way by which another is cheated.” Volcanic Gardens , 847 S.W.2d at 347 (citation and internal quotation omitted); accord In re Nat. Gas Pipeline Co. of Am. , No. 07-00-0375-CV, 2000 WL 1644361, at *2 (Tex. App.—Amarillo Nov. 2, 2000, orig. proceeding) (not designated for publication) (concluding documen ts which showed client believ ed leases to be invalid yet sought to collect royalties fell w ithin crime–fraud exception). On that basis the court reasoned, “[t]he crime/fraud exception comes into play when a prospective client seeks the assistance of an attorney in order to make a false statement or stat ements of material fact or law to a third person or the court for personal advantage.” Volcanic Gardens , 847 S.W.2d at 348. The lawyer–client privilege is intended to allow “unrestrained communication and contact between the lawyer and client in all matters in which the lawyer’s professional advice or services are sought, without fear that these confidential communications will be disclosed, voluntarily or invol untarily, in any le gal proceeding.” Huie v. DeShazo , 922 S.W.2d 920, 922 (Tex. 1996) (orig. proceeding) (quoting West v. Solito , 563 S.W.2d 240, 245 (Tex. 1978)). We need not determine at this junc ture whether the crime–fraud exception has a reach as broad as the expansive language of Volcanic Gardens might suggest. It is impor tant to focus on the conduct that was at issue in Volcanic Gardens —the deliberate misrepresent ation of the facts concerning the plaintiff’s injury. Here, in contrast, whethe r Texas Health Resources is Pham’s co-employer is ultimately a legal question. There is no suggesti on in this case that Texas Health Resources is falsifying any factual matters related to Pham’s employment. Rather, the dispute centers on–14– whether those facts can be cons trued to render Texas Health Re sources a co-employer of Pham under the workers’ compensation statute. T hus, the allegedly wrongful conduct that Pham argues merits application of the crime–fraud excep tion relates solely to the advocacy of a legal position. While certainly we could not condone the conduct of an attorney who would attempt to mislead a court into reaching an erroneous legal conclusion by taking a position inconsistent with the attorney’s understand ing of the law, our in camera review of the claim note the trial court ordered disclosed does not reveal the existence of an attempt to make a false statement of the law to the court. Therefore, we cannot conclude th e crime–fraud exception supports the trial court’s order. Conclusion Because we conclude that the trial court a bused its discretion in ordering production of the excerpts of the January 15, 2015 claim note iden tified in its July 1, 2 015 Amended Order, we conditionally grant relators’ peti tion for writ of mandamus and order the trial court to vacate the portion of the July 1, 2015 Amended Order that re quires the production of th e first three lines of the “1/15/2015 — 1:17 p.m.” entry on pages 6–8 of the “Part II —Claim Diary Notes,” up through the term “7184,” that requires production of the portion of the second paragraph starting with the term “Pltf’s” and ending with the term “D allas,” and that require s production of the last full paragraph, which starts with the term “I” a nd ends with the term “affected.” A writ will issue only if the trial court fails to comply.

150813F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE