FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

DINA M. COX                                  J. BLAKE HIKE
JANELLE P. KILIES                            LARRY L. BARNARD
Lewis Wagner, LLP                            MARK D. ULMSCHNEIDER
Indianapolis, Indiana                        Carson Boxberger LLP
                                             Fort Wayne, Indiana



                                                                   Mar 24 2014, 9:30 am



                             IN THE
                   COURT OF APPEALS OF INDIANA

PURDUE UNIVERSITY,                           )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 79A02-1304-PL-342
                                             )
MICHAEL A. WARTELL,                          )
                                             )
      Appellee-Plaintiff.                    )


        INTERLOCUTORY APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                    The Honorable Donald L. Daniel, Judge
                        Cause No. 79C01-1205-PL-21



                                   March 24, 2014


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       The question we address today is this: may a party be equitably estopped from

asserting the attorney-client privilege and the work-product doctrine? In this case, Purdue

University promised Chancellor Michael A. Wartell that an independent investigator

acceptable to him, who was preferably (but not necessarily) an attorney, would be appointed

to investigate a complaint that he had filed against Purdue’s president, pursuant to specified

procedures. Purdue then appointed an attorney acceptable to Wartell to investigate his

complaint. In accordance with the specified procedures, the attorney interviewed Wartell, the

president, and others and submitted a report with his determinations and recommendations

regarding Wartell’s complaint to a panel of Purdue’s trustees.

       Wartell requested the report from Purdue’s public records officer, who denied the

request based on the attorney-client privilege and the work-product doctrine. Wartell then

filed a complaint with the state public access counselor, who determined that Purdue could

assert the attorney-client privilege if the attorney “was acting as the University’s attorney” in

investigating Wartell’s complaint, but not if he was “acting solely as an independent

investigator.” Appellant’s App. at 26, 25.

       Wartell then filed a lawsuit to compel Purdue to allow him to inspect or copy the

attorney’s report. He deposed the attorney and the Purdue vice president who hired him.

Both refused to answer certain questions based on the attorney-client privilege and the work-

product doctrine. Wartell asked the trial court to determine as a preliminary matter that “due

to the surreptitious circumstances surrounding Purdue’s hiring of [the attorney], principles of


                                               2
equity estop Purdue from asserting the attorney-client privilege and the work-product

doctrine to prevent disclosure of anything related to [the attorney’s] investigation of Wartell’s

complaint[.]” Id. at 38. He also asked the trial court to compel the attorney and the vice

president to answer the unanswered deposition questions. The trial court ruled that Purdue

was equitably estopped from asserting the attorney-client privilege and the work-product

doctrine and ordered the deposition questions to be answered.

       On appeal, Purdue argues that the trial court’s ruling is erroneous, noting that

confidentiality is a fundamental aspect of the attorney-client relationship and that the

attorney-client privilege and the work-product doctrine have few recognized exceptions.

Based on the record before us, it is not necessary for us to determine whether the attorney

acted as Purdue’s legal counsel, as opposed to an independent investigator who happened to

be an attorney. The attorney conducted his investigation in accordance with the specified

procedures to be followed by the independent investigator, and the attorney did not inform

Wartell that he was acting as Purdue’s legal counsel, as would be required under the Indiana

Rules of Professional Conduct. If the attorney was not acting as Purdue’s legal counsel, then

Purdue may not assert the attorney-client privilege and the work-product doctrine to prevent

disclosure of the information that Wartell seeks.

       But assuming for argument’s sake that the attorney was acting as Purdue’s legal

counsel, we note that evidentiary privileges created “to shield selected information from

discovery … may not be wielded as swords at the will of a party.” Madden v. Ind. Dep’t of

Transp., 832 N.E.2d 1122, 1128 (Ind. Ct. App. 2005). Moreover, it has long been recognized


                                               3
that “[e]quity looks beneath the rigid rules to find substantial justice” and “has the power to

prevent strict legal rules from working injustice.” Wabash Valley Coach Co. v. Turner, 221

Ind. 52, 65, 46 N.E.2d 212, 217 (1943), cert. denied. “Equitable estoppel is available if one

party, through its representations or course of conduct, knowingly misleads or induces

another party to believe and act upon their conduct in good faith and without knowledge of

the facts.” Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234 (Ind. Ct. App. 2004),

trans. denied.

       Here, Purdue represented to Wartell that it would appoint an independent investigator

to investigate his complaint, but then concealed from Wartell that it hired an attorney it

intended to serve as its legal counsel; thus, Wartell never had an opportunity to object to the

attorney’s appointment on that basis. Relying on Purdue’s representation, Wartell allowed

the attorney to interview him, the president, and others and submit an investigative report

with determinations and recommendations regarding his complaint to a panel of Purdue’s

trustees. Based on these facts and circumstances, we cannot say that the trial court erred in

ruling that Purdue should be equitably estopped from invoking the attorney-client privilege

and the work-product doctrine as to Wartell. Therefore, we affirm.

                                  Facts and Procedural History1

       Purdue, a public university, employed Wartell as chancellor of the Indiana University-

Purdue University Fort Wayne campus. On September 12, 2011, Wartell filed a formal

complaint alleging harassment and discrimination against France Córdova, Purdue’s


       1
           We held oral argument on December 17, 2013. We thank the parties for their presentations.

                                                    4
president at the time, pursuant to Purdue’s internal complaint process. Typically, a formal

complaint is investigated by a Purdue employee, who submits a report to a university official,

who then submits the report to and meets with a three-member panel selected by the official

from the Advisory Committee on Equity. Upon request, the complainant and the respondent

may meet with the official and the panel. Within ten days after meeting with the panel, the

official must make a written determination whether a violation of university policy occurred.

Wartell expressed concern to Purdue’s vice president for ethics and compliance, Alysa

Rollock, that “those involved in the process report to the president of the University.”

Appellant’s App. at 167.

       On September 21, 2011, Rollock sent a letter to Wartell and Córdova that reads in

pertinent part as follows:

       Following consultation with the Board of Trustees, I have been authorized to
       communicate with you regarding the process to be followed in connection with
       the formal complaint (the “Complaint”) filed by Chancellor Wartell on
       September 12, 2011.

       In light of concerns expressed regarding the appropriateness of the process
       outlined in Purdue University’s Procedures for Resolving Complaints of
       Discrimination and Harassment (the “Procedures”) as applied to you in this
       matter, the University offers to proceed as follows:

       1.     An independent investigator (preferably an Indiana attorney with a
              practice in the area of higher education) (the “Investigator”) acceptable
              to each of you will be appointed by me to conduct a thorough
              investigation of the Complaint, including interviews with each of you
              and others as the Investigator may deem appropriate. The Investigator
              will be asked to work expeditiously with a goal of concluding the
              investigation within 45 days.

       2.     As in the Procedures, the first undertaking of the Investigator will be to
              interview Chancellor Wartell and make a determination as to whether

                                              5
             any of the allegations, if substantiated, would constitute a violation of
             the University’s Anti-Harassment and Equal Opportunity policies (the
             “Policies”). In the event that the Investigator determines that any of the
             allegations, if substantiated by a preponderance of the evidence, would
             constitute a violation of the Policies, he/she will conduct an
             investigation into such allegations. Upon the completion of the
             investigation, the Investigator will determine whether: (a) any of the
             investigated allegations have been substantiated by a preponderance of
             the evidence, whether there has been a violation of the Policies, and a
             recommendation of sanctions, if any; and (b) the Complaint was
             knowingly false or malicious, and a recommendation of sanctions, if
             any.

      3.     The Investigator will prepare and deliver to a three-member panel (the
             “Panel”) a report that indicates his/her determinations as described in
             paragraph 2. The Panel will then meet and members of the Panel shall
             consider: (a) the Investigator’s report; (b) the Complaint and the
             Respondent’s response; and (c) in the event the Panel requests
             additional information from the Investigator or either party, the written
             submissions provided to the Panel in response to such requests. The
             parties will not meet with the Panel.

      4.     The Panel will be selected by me from members of the Board of
             Trustees (excluding the student Trustee). Before the selection, each of
             you will have an opportunity to provide me with the names of up to two
             Trustees to be stricken from consideration for the Panel. I will select
             the Panel from the remaining Trustees.

      5.     The decision of the Panel, which will be in writing and provided to me
             and to each of you, will constitute the University’s final action on the
             matter.

      If this process is acceptable to you, please sign and return the attached letter to
      me by the close of business on September 26, 2011.

Id. at 192-93. Wartell objected to a waiver provision in the attached letter but otherwise

accepted the process outlined above. Apparently, Córdova also accepted the process.

      Rollock presented Wartell and Córdova “with a list of attorneys to which they could

indicate their objections.” Id. at 166. Rollock received their responses and contacted

                                              6
attorney John Trimble on November 2, 2011, to ask him “whether he was available and

would be able to take on the process” of investigating Wartell’s complaint. Id. at 174.

Trimble indicated that he would. On November 7, 2011, Rollock spoke with Trimble about

the terms of his engagement and sent him a follow-up email outlining those terms, which

essentially mirror the investigator’s responsibilities mentioned in paragraphs 2 and 3 of her

letter to Wartell and Córdova. Id. at 187. Rollock’s email further stated, “The parties will be

notified of your appointment. They and any persons whom you wish to interview will be

expected to cooperate fully with you, including making themselves available for interviews

and providing any emails or other documents that you may require.” Id. A few days later,

Trimble sent Rollock a letter confirming his engagement. Trimble interviewed Wartell and

Córdova and ten to twelve other witnesses he learned about from Wartell. He then prepared

a report and sent a copy to each of the Panel members on February 1, 2012.2

        In March 2012, Wartell requested Trimble’s report “and any other document”

prepared by Trimble regarding his complaint from Purdue’s public records officer, Lucia

Anderson. Id. at 21.3 Indiana Code Section 5-14-3-3(a) of Indiana’s Access to Public

Records Act (“APRA”) provides that “[a]ny person may inspect and copy the public records

of any public agency during the regular business hours of the agency, except as provided in


        2
           According to Purdue, “[t]he panel then met to consider Attorney Trimble’s Report, Wartell’s
complaint, and Córdova’s response. Following this meeting, the panel rendered a decision, in writing, which
was delivered to both Wartell and Córdova and which constituted Purdue’s final action in the matter.”
Appellant’s Br. at 4 (citation to appendix omitted). The decision is not in the record before us.

        3
           Wartell claims that he made his request “because Trimble and Rollock represented to several
interviewees that the report would be subject to disclosure under public records laws[.]” Appellee’s Br. at 4.
Wartell cites no evidence to support this claim.

                                                      7
section 4 of this chapter.” Anderson denied Wartell’s request in a letter that reads in

pertinent part as follows:

        •   Indiana Code 5-14-3-4(a)(8) provides an exception for records that are
            “declared confidential by or under the rules adopted by the supreme court
            of Indiana.” These provisions have been interpreted as creating a
            mandatory exception to the disclosure requirement of Section 3 for public
            records that are communications between public agency and its legal
            counsel.

        •   In addition, it is also denied under IC 5-14-3-4(b)(2) that provides that a
            public agency has discretion to except from disclosure: The work product
            of an attorney representing, pursuant to … an appointment by a public
            agency [sic]. The Report is therefore exempted from disclosure because it
            is the work product of an attorney representing a public agency.

Id. According to Wartell, this is the first time that he had been made aware that “Purdue

engaged Trimble as its attorney,” and he “would not have agreed to the alternative process or

spoken with Trimble had [he] known Purdue engaged him as its attorney and not the

promised independent investigator.” Id. at 94-95 (affidavit).

        Wartell then filed a complaint with the state public access counselor, Joseph B.

Hoage, who issued an advisory opinion that reads in relevant part as follows:

               The University has provided that certain records were deemed to be
        confidential pursuant to state law regarding attorney-client communication or
        were the work product of an attorney pursuant to I.C. § 5-14-3-4(b)(2). One
        category of nondisclosable public records consists of records declared
        confidential by a state statute. See I.C. § 5-14-3-4(a)(1). I.C. § 34-46-3-1
        provides a statutory privilege regarding attorney and client communications.[4]
        Indiana courts have also recognized the confidentiality of such
        communications ….


        4
           Indiana Code Section 34-46-3-1 provides in pertinent part, “Except as otherwise provided by statute,
the following persons shall not be required to testify regarding the following communications: (1) Attorneys,
as to confidential communications made to them in the course of their professional business, and as to advice
given in such cases.”

                                                      8
        Pursuant to I.C. § 5-14-3-4(b)(2) a public agency has the discretion to
withhold a record that is the work product of an attorney representing, pursuant
to state employment or an appointment by a public agency: a public agency;
the state; or an individual.

       “Work product of an attorney” means information compiled by
       an attorney in reasonable anticipation of litigation and includes
       the attorney’s:
       (1) notes and statements taken during interviews of prospective
       witnesses; and
       (2) legal research or records, correspondence, reports, or
       memoranda to the extent that each contains the attorney’s
       opinions, theories, or conclusions.
       I.C. § 5-14-3-2(p) [now (r)].

       There is no dispute that the University is subject to the APRA. Once
the investigative report and materials were created and/or received by the
University they became a public record. See I.C. § 5-14-3-2(n) [now (o)]. It is
immaterial what was alleged to have been communicated between the parties
during the pendency of the investigation regarding whether the records would
be subject to disclosure. Once the University received your request for records
pursuant to the APRA, it would have been required to either provide or cite to
an applicable specific exception found in state or federal law that either
prohibited disclosure or granted discretion to the University to produce the
record.

       The key inquiry whether the University may cite to I.C. § 5-14-3-4(b)(2)
or the attorney client privilege to deny your request is whether Mr. Trimble
was acting as the University’s attorney during the investigation. You allege
that Mr. Trimble was acting as an independent investigator, relying on
University correspondence provided to you and after being informed by the
University that the report and supporting materials would be available for
inspection. The University and Mr. Trimble deny that you were informed that
the records would be subject to disclosure and that Mr. Trimble was acting in
his capacity as an attorney in creating the report and the supporting materials
on behalf of the University.

       The University in its September 20, 2011 correspondence provided that
“an independent investigator (preferably an Indiana attorney with a practice in
the area of higher investigation [sic]) acceptable to each of you will be
appointed by me to conduct a thorough investigation of the Complaint …”
(emphasis added). Further, Ms. Anderson provided in her response to your

                                       9
formal complaint that “… the work performed by Mr. Trimble was done in his
capacity as an attorney and that his investigative report and materials are
privileged.” (emphasis added). In order for the University to cite to the above
referenced attorney exceptions, Mr. Trimble would be required to acting [sic]
as an attorney on behalf of the University, not just acting as “an attorney”.

        The public access counselor is not a finder of fact. Advisory opinions
are issued based upon the facts presented. If the facts are in dispute, the public
access counselor opines based on both potential outcomes. A court would be
empowered to make factual determinations regarding Mr. Trimble[’s] status
and the University’s denial pursuant to I.C. § 5-14-3-9(e)-(i).[5] As applicable
here, if in investigating the complaint, Mr. Trimble was acting solely as an
independent investigator, the University may not cite to I.C. § 5-14-3-4(b)(2)

5
    Indiana Code Section 5-14-3-9 reads in relevant part,

(e) A person who has been denied the right to inspect or copy a public record by a public
agency may file an action in the circuit or superior court of the county in which the denial
occurred to compel the public agency to permit the person to inspect and copy the public
record…

(f) The court shall determine the matter de novo, with the burden of proof on the public
agency to sustain its denial.…

(g) If the issue in a de novo review under this section is whether a public agency properly
denied access to a public record because the record is exempted under section 4(b) of this
chapter:
         (1) the public agency meets its burden of proof under this subsection by:
                  (A) proving that the record falls within any one (1) of the categories of
                  exempted records under section 4(b) of this chapter; and
                  (B) establishing the content of the record with adequate specificity and not
                  by relying on a conclusory statement or affidavit; and
         (2) a person requesting access to a public record meets the person’s burden of proof
         under this subsection by proving that the denial of access is arbitrary or capricious.

(h) The court may review the public record in camera to determine whether any part of it may
be withheld under this chapter.…

(i) In any action filed under this section, a court shall award reasonable attorney’s fees, court
costs, and other reasonable expenses of litigation to the prevailing party if:
         (1) the plaintiff substantially prevails; or
         (2) the defendant substantially prevails and the court finds the action was frivolous or
         vexatious.
The plaintiff is not eligible for the awarding of attorney’s fees, court costs, and other
reasonable expenses if the plaintiff filed the action without first seeking and receiving an
informal inquiry response or advisory opinion from the public access counselor, [with an
exception not relevant here].

                                               10
       or the attorney-client privilege in denying your request. However, if Mr.
       Trimble was acting as the University’s attorney during the investigation, the
       University may cite to I.C. § 5-14-3-4(b)(2) and the attorney-client privilege to
       deny the request.

                                      CONCLUSION

               For the foregoing reasons, it is my opinion that the University did not
       violate the APRA and would be allowed to cite to the attorney-client privilege
       or I.C. § 5-14-3-4(b)(2) in denying your request for records if Mr. Trimble was
       acting as the University’s attorney in conducting the investigation into your
       complaint.

Id. at 23-26 (citation omitted).

       Pursuant to Indiana Code Section 5-14-3-9, Wartell filed the instant lawsuit to compel

Purdue to allow him to “inspect or copy Trimble’s investigation report.” Id. at 11. Wartell

deposed Trimble and Rollock, who refused to answer certain questions based on the attorney-

client privilege and the work-product doctrine. Wartell filed a motion for the court to

determine as preliminary matters that Purdue engaged Trimble as its attorney to investigate

“and to advise Purdue and/or its Board of Trustees on the merits of Wartell’s complaint” and

that “due to the surreptitious circumstances surrounding Purdue’s hiring of Trimble,

principles of equity estop Purdue from asserting the attorney-client privilege and work

product doctrine to prevent disclosure of anything related to Trimble’s investigation of

Wartell’s complaint[.]” Id. at 38. Wartell also asked the trial court to compel Trimble and

Rollock, pursuant to Indiana Trial Rule 37, “to answer all of the unanswered certified

questions asked during their depositions and any additional questions Wartell’s counsel




                                              11
otherwise would have asked, and compelling them to submit to further deposition

testimony.”6 Id. Wartell also requested attorney’s fees.

        After a hearing, the trial court issued the following order:

                The Court having had under advisement the Plaintiff’s Motion for
        Preliminary Determination and Motion to Compel now determines that the
        princip[les] of equity estop Purdue University from asserting the attorney-
        client privilege and work product doctrine to prevent disclosure of anything
        related to Trimble’s investigation of Wartell’s Complaint. Accordingly,
        Defendant Purdue University is ordered to answer the unanswered certified
        questions asked during the depositions of Trimble and Rollock.

                  The Plaintiff’s request for attorney’s fees is denied.

Id. at 200. Purdue now brings this discretionary interlocutory appeal.7

                                         Discussion and Decision

        Generally, we review a challenge to a discovery order for an abuse of discretion. State

v. Int’l Bus. Mach. Corp., 964 N.E.2d 206, 209 (Ind. 2012). We note that “[t]he attorney-

client privilege is one of the oldest recognized privileges for confidential communications.

The privilege is intended to encourage full and frank communication between attorneys and

their clients and thereby promote broader public interests in the observance of law and the

administration of justice.” Gast v. Hall, 858 N.E.2d 154, 163 (Ind. Ct. App. 2006), trans.


        6
         Trial Rule 37(A)(2) provides that “if a deponent fails to answer a question propounded or submitted
under Rule 30 or 31, … the discovering party may move for an order compelling an answer ….” Trial Rule
37(A)(4) provides that if the motion is granted, the trial court

        shall, after opportunity for hearing, require the party or deponent whose conduct necessitated
        the motion or the party or attorney advising such conduct or both of them to pay to the
        moving party the reasonable expenses incurred in obtaining the order, including attorney’s
        fees, unless the court finds that the opposition to the motion was substantially justified or that
        other circumstances make an award of expenses unjust.

        7
            Wartell does not appeal the denial of his request for attorney’s fees.

                                                       12
denied (2007). “The privilege applies to all communications between the client and his

attorney for the purpose of obtaining professional legal advice or aid regarding the client’s

rights and liabilities.” Corll v. Edward D. Jones & Co., 646 N.E.2d 721, 724 (Ind. Ct. App.

1995).

         The attorney-client privilege protects against judicially compelled disclosure of
         confidential information regardless of whether the information is to be
         disclosed by way of testimony or by court-ordered compliance with a
         discovery request which a party has attempted to resist. The harm to be
         prevented is not the manner in which the confidence is revealed, but the
         revelation itself.

P.T. Buntin, M.D., P.C. v. Becker, 727 N.E.2d 734, 740 (Ind. Ct. App. 2000).

         The work-product doctrine was first established by the U.S. Supreme Court in

Hickman v. Taylor, 329 U.S. 495 (1947). “The work-product doctrine prohibits a party in

litigation from obtaining from another party its ‘attorney’s notes and memoranda reflecting

the attorney’s theories and mental impressions about the case.’” Penn. Cent. Corp. v.

Buchanan, 712 N.E.2d 508, 516 (Ind. Ct. App. 1999) (quoting Hayworth v. Schilli Leasing,

Inc., 669 N.E.2d 165, 169 n.7 (Ind. 1996)), trans. denied. Indiana Trial Rule 26(B)(3)

governs the work-product doctrine. Id.

         The rule provides that a party may obtain discovery of documents and tangible
         items prepared by another party’s attorney in anticipation of litigation or for
         trial but “only upon a showing that the party seeking discovery has substantial
         need of the materials in the preparation of his case and that he is unable
         without undue hardship to obtain the substantial equivalent of the materials by
         other means.”

Id. (quoting Ind. Trial Rule 26(B)(3)).

         Although a party may obtain discovery of ordinary work product materials by
         making a special showing, a party seeking discovery is never entitled to the

                                                13
       mental impressions, conclusions, opinions, or legal theories of an attorney or
       other representative of the party concerning the litigation. Such material, often
       called opinion work product, is entitled to absolute protection from discovery.

Nat’l Eng’g & Contracting Co. v. C & P Eng’g & Mfg. Co., 676 N.E.2d 372, 376 (Ind. Ct.

App. 1997) (citation omitted).

       It is true, as Purdue observes, that the attorney-client privilege and the work-product

doctrine have few recognized exceptions, and that equitable estoppel is not one of them. See,

e.g., Lahr v. State, 731 N.E.2d 479, 483 (Ind. Ct. App. 2000) (recognizing crime-fraud

exception to attorney-client privilege); Becker, 727 N.E.2d at 740 (recognizing that client

may waive privilege by disclosing or consenting to disclosure of privileged matter); Ind. Trial

Rule 26(B)(3) (establishing undue hardship exception to work-product doctrine). It is also

true, however, that evidentiary privileges created “to shield selected information from

discovery … may not be wielded as swords at the will of a party.” Madden, 832 N.E.2d at

1128. Moreover, it has long been recognized that “[e]quity looks beneath the rigid rules to

find substantial justice” and “has the power to prevent strict legal rules from working

injustice.” Wabash Valley Coach Co., 221 Ind. at 65, 46 N.E.2d at 217. “Equitable estoppel

is available if one party, through its representations or course of conduct, knowingly misleads

or induces another party to believe and act upon their conduct in good faith and without

knowledge of the facts.” Am. Family Mut. Ins. Co., 803 N.E.2d at 234.

       The elements of equitable estoppel are: (1) a representation or concealment of
       a material fact, (2) made by a person with knowledge of the fact and with the
       intention that the other party act upon it, (3) to a party ignorant of the fact, and
       (4) which induces the other party to rely or act upon it to his detriment.

Id.

                                               14
        Based on the record before us, it is not necessary for us to determine whether Trimble

was hired as Purdue’s legal counsel, rather than simply as an independent investigator who

happened to be an attorney.8 In her deposition, Rollock stated that Trimble was hired as

Purdue’s legal counsel. See Appellant’s App. at 172 (“Q. Was [Trimble] counsel for Purdue

University investigating the complaint? A. Yes, he was.”). Trimble gave a similar response

in his deposition. See id. at 133 (“Q. And at the time that you sent this engagement letter on

November 9, 2011, did you believe that an attorney-client relationship had been formed

between you and Purdue University? A. Yes.”). But Trimble later acknowledged that “[t]his

was not a case where [his] engagement required [him] to be an advocate on behalf of Purdue

University” and that he “owed it to everyone involved to do a thorough, competent and fair

investigation[.]” Id. at 136. And Trimble conducted his investigation in accordance with the

specified procedures to be followed by the independent investigator, as described in

Rollock’s letter to Wartell.

        Moreover, Trimble stated that he did not inform Wartell that he was representing

Purdue when he interviewed him during the investigation. Id. at 140. This is telling,

inasmuch as the Indiana Rules of Professional Conduct clearly indicate that if Trimble had

been acting as an advocate for Purdue, he would have had a duty to disclose this fact to


        8
          As stated above, Purdue indicated to Wartell that the investigator did not have to be an attorney. See
Appellant’s App. at 192 (providing for appointment of “[a]n independent investigator (preferably an Indiana
attorney with a practice in the area of higher education)”) (emphasis added). Purdue does not assert that only a
lawyer could have investigated Wartell’s complaint and made recommendations to the Panel. In fact, Rollock
acknowledged that nonlawyers had investigated internal complaints and made recommendations before. Id. at
171-72. She also stated that a majority “of the investigations had been conducted by persons who are
attorneys, although not counsel for the university.” Id. at 172 (emphasis added).


                                                      15
Wartell. See Ind. Professional Conduct Rule 1.13(f) (“In dealing with an organization’s

directors, officers, employees, members, shareholders or other constituents, a lawyer shall

explain the identity of the client when the lawyer knows or reasonably should know that the

organization’s interests are adverse to those of the constituents with whom the lawyer is

dealing.”).9     To the contrary, Trimble conducted the investigation by interviewing

individuals, drafting a report, and submitting it to the Panel without disclosing an advocate


        9
           A recent law review article explores the ethical issues that often arise during corporate internal
investigations, in which the corporation’s lawyer is required to “interview employees, officers, directors, or
other individuals related to the entity.” Grace M. Giesel, Upjohn Warnings, the Attorney-Client Privilege, and
Principles of Lawyer Ethics: Achieving Harmony, 65 U. MIAMI L. REV. 109, 110 (Fall 2010). The Upjohn
referred to here is Upjohn Co. v. United States, 449 U.S. 383 (1981), “in which the United States Supreme
Court affirmed that an entity, such as a corporation, can have an attorney-client privilege.” Id. at 110 n.2. In
Upjohn, “the Court clarified that the corporation’s privilege rightly could attach to communications between a
lawyer and a variety of constituents of the entity and was not simply limited to communications between a
lawyer for the entity and the control-group individuals.” Id. The article goes on to say,

                 The lawyer, seeking to render the best possible representation to the entity client,
        wishes to obtain complete and unfettered disclosure by the individuals with whom the lawyer
        communicates. The more complete the disclosure, the better counsel the lawyer can give to
        his or her client, the entity.

                  The individual in this tripartite situation may be inclined to disclose all to the lawyer
        because the individual does not truly understand where the loyalties of the lawyer and the
        entity lie. The individual may view the entity, the lawyer, and the individual as on the same
        team, just as they are with regard to the typical day-to-day happenings involving the entity.
        The individual may not understand that the attorney does not view the individual as a client.
        The individual may not understand that the attorney places the entity’s interest well above that
        of the individual. The individual may not realize that he or she has no right to block
        disclosure of his or her own communications with the attorney. The individual may not
        realize that statements made to the attorney ultimately might be used against the individual by
        the entity or other parties, such as the government in a criminal prosecution.

                 The lawyer could eliminate any confusion of roles by clearly explaining, in writing or
        otherwise, the situation to the individuals with whom the lawyer talks. A lawyer’s
        explanation to the individual in the tripartite situation has been referred to as a corporate
        Miranda warning or an Upjohn warning. In fact, the rules of professional responsibility
        governing lawyer conduct require the lawyer in the tripartite situation to be honest and
        forthright.

Id. at 110-11 (footnotes omitted). The “confusion of roles” is even more apparent in this case, where it is not
altogether clear whether Trimble was acting as Purdue’s attorney.

                                                       16
role. In other words, Trimble conducted the investigation as an independent investigator.10

Like the old adage, Trimble’s actions speak louder than words, or, in this case, the assertions

made by Purdue. If Trimble was acting solely as an independent investigator and not as

Purdue’s legal counsel, then Purdue may not assert the attorney-client privilege or the work-

product doctrine to prevent disclosure of the information that Wartell seeks.

        But assuming for argument’s sake that Trimble was acting as Purdue’s legal counsel,

several observations are in order. First, Purdue represented to Wartell that it would appoint

Trimble as an independent investigator, but then concealed from Wartell that it intended to

retain Trimble as its legal counsel; thus, Wartell never had an opportunity to object to

Trimble’s appointment on that basis. Relying on Purdue’s representation that Trimble was an

independent investigator, Wartell allowed Trimble to interview him, Córdova, and

approximately a dozen others and submit an investigative report with determinations and

recommendations regarding his complaint to the Panel.                       Based on these facts and

circumstances, we cannot say that the trial court abused its discretion in ruling that Purdue

should be equitably estopped from invoking the attorney-client privilege and the work-

product doctrine as to Wartell.11 Therefore, we affirm.




        10
            Consequently, we are unpersuaded by Purdue’s reliance on Sandra T.E. v. South Berwyn School
District, 600 F.3d 612 (7th Cir. 2009).

        11
            We are not asked to determine whether the matters at issue would be privileged on any other basis
or as to anyone other than Wartell. Purdue frets that recognizing equitable estoppel as an exception to the
attorney-client privilege and the work-product doctrine “would have a chilling effect on the very principles on
which [they] were founded.” Appellant’s Br. at 7. On the contrary, one would hope that it would have a
chilling effect on the tactics used by Purdue in this case.

                                                      17
      Affirmed.

BAKER, J., and BARNES, J., concur.




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