KU Office of the General Counsel

Fall 2025 Newsletter

Asserting and Protecting Attorney-Client Privilege

Steve Allton

The attorney-client privilege is a historical legal principle and rule of evidence that protects communications between a client and their attorney. The purpose of the privilege is to encourage open and honest communication necessary to ensure that an attorney knows all the important information, and thus is able to provide the best advice possible. While the privilege itself is well-known, when the privilege applies and how the privilege can be waived are often sources of confusion. 

The first step in understanding the privilege is to understand what the privilege does and does not cover. As codified in Kansas statutes, the attorney-client privilege only applies to communications made in confidence between an attorney and client in the course of the attorney-client relationship for the purpose of obtaining legal advice. 

When working in a large organization, the question arises as to who, exactly, is the client? The Office of the General Counsel represents the University, which acts through its duly authorized officers, directors, employees, and agents. The OGC does not represent the personal interests of individual employees, and communications about personal interests of individual employees are not covered by the privilege.
 
Notably, not every communication between the OGC and KU employees is covered by the privilege. The privilege does not attach to an email simply because an OGC attorney is copied. Minutes of meetings attended by attorneys are not automatically privileged. The privilege also does not protect underlying facts. For example, in a car accident case, if a client is asked under oath, “What color was the light when you went through the intersection?” a client must answer, as the question seeks facts. However, if the question is instead, “What color did you tell your lawyer the light was when you went through the intersection?” a client cannot be compelled to answer, because that communication is privileged.  

In addition to underlying facts, when an attorney is instead providing a business function, the attorney-client privilege does not apply. Business functions may include negotiating terms of a contract, attending business meetings, soliciting advice from outside professionals, or acting as a general committee member. Legal advice, on the other hand, includes advising the University on existing or proposed law and compliance requirements, analyzing conduct for compliance with law or judgments, and/or advising on risk and litigation.  

It is important to protect the confidentiality of privileged communications. When the substance of a confidential communication with an attorney is disclosed to a third party, the privilege can be waived. The consequences of a waiver can be substantial, losing legal protection not only for the communication that was shared, but also for future communications about the same subject matter. 

As a university employee, the following practices can help minimize any inadvertent waiver of the privilege: 

• Do not forward emails;
• Start a new email instead of replying to all;
• Do not provide copies of privileged communications to others; and
• Do not discuss privileged communications with family, friends, or acquaintances.  

Questions? If you don’t know, don’t disclose! Keep communication confidential until you have an opportunity to consult with the Office of the General Counsel. 

Freedom of Speech

Michael Leitch

At a public university, the freedom of speech is critical to student learning and to achieving our mission of educating future leaders.

But freedom has limits, and speech can have consequences. For university employees, the Supreme Court recognizes that “when public employees make statements pursuant to their official duties, the employees are not speaking as private citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Roughly speaking, this means when an employee is speaking in the course of their official capacity, as a university employee, the First Amendment does not protect the employee from discipline or consequences for that speech. The university also can require or compel certain speech. For example, the KU’s mandatory reporting policy requires most employees to report incidents of harassment and discrimination.

For faculty, certain classroom speech and research remain largely protected by academic freedom. However, courts have recognized that academic freedom does not protect all faculty speech and conduct from discipline. Like staff, faculty remain subject to university policies on harassment and discrimination, as well as other Kansas Board of Regents and KU policies.

To learn more about the freedom of speech at KU, please see KU Law Professor Richard E. Levy’s Summary of Free Speech Law (pdf).

Mandatory Reporting Obligations

Marissa Hotujac

With a new semester upon us, you may find yourself in a situation where a student or co-worker discloses to you that they have experienced an incident of discrimination or harassment. If this occurs, pursuant to KU’s Mandatory Reporting Policy, you must promptly report the incident to the University’s Office of Civil Rights & Title IX (OCRTIX) at 785-864-6414, civilrights@ku.edu, or the OCRTIX online reporting form. This reporting obligation applies to all University employees (subject to few exemptions explained below), including student employees who learn of an incident while acting in their capacity as a KU employee.  

You do not have to be certain that an incident of discrimination or harassment occurred, but only need to have reason to believe that an incident may have occurred. If you are not sure whether an incident is discrimination or harassment, you should still report the incident to OCRTIX to ensure compliance with your Mandatory Reporter obligations.

Additionally, you might take this time to re-review the University’s Nondiscrimination, Sexual Harassment, and Racial and Ethnic Harassment policies to re-familiarize yourself with the potential types of discrimination or harassment that a student or co-worker could disclose to you. Some examples of incidents to report include a student who discloses that they experienced sexual violence or an employee who experiences distress stemming from comments related to their protected class. Please refer to KU’s Office of Civil Rights & Title IX website for more information, reporting forms, and a full listing of protected classes. 

The full list of employees exempted from the reporting obligation can be found in the Mandatory Reporting Policy. Some exempted employees include the University’s CARE Coordinator and CARE Advocate, health care providers, and pastoral and professional counselors who receive knowledge of an incident of discrimination or harassment while acting in their role as a provider or counselor.  

For additional resources and information, please see the OCRTIX Mandatory Reporters webpage.

Did You Know?

The Office of the General Counsel has notaries available to meet your business needs. With notaries on the Lawrence campus, the KU Medical Center campus, and the Edwards campus, a little timely notice will help our staff meet your notary needs.  

Keep in mind that notary requirements do change over time. Below are key changes and reminders:

• Kansas notaries must verify the signor identity – be prepared to present your driver’s license, passport, or other form of government identification.
• Kansas notaries must maintain a journal, including full name and address of each signor.
• Kansas notaries may now be authorized to sign for someone who is physically unable to sign.
• Do not sign a document ahead of time – a notary must witness your signature!