Petition for Writ of Mandamus Conditionally Granted and Opinion filed July
30, 2019.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-18-00466-CV



       IN RE EDWARD ALEXANDER, ADAM JOHNSON, WAYNE
       THOMPSON, JR., LILYNN CUTRER, AND KAREN AUCOIN,
           INDIVIDUALLY AND AS CO-TRUSTEES, Relators


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                             Probate Court No. 4
                            Harris County, Texas
                Trial Court Cause Nos. 365,053 & 365,053-404

                                   OPINION

      Relators Edward Alexander, Adam Johnson, Wayne Thompson, Jr., Lilynn
Cutrer, and Karen Aucoin, Individually and as Co-Trustees filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. By a separate filing, relator Elaine T. Marshall joined in the petition. In
the petition, relators ask this court to compel the Honorable James Horowitz,
presiding judge of Probate Court No. 4 of Harris County, to vacate his May 2, 2019
order granting the motion to compel production filed by real party in interest Preston
Marshall.1 We conditionally grant the petition.

                                      I. BACKGROUND

       E. Pierce Marshall, Sr. created the Harrier Trust, of which Preston Marshall is
the income and principal beneficiary, and the Falcon Trust, of which Preston is the
initial income beneficiary and his children are the successor income and principal
beneficiaries. Elaine T. Marshall was named the original trustee for both the Harrier
Trust and Falcon Trust (the “Trusts”). Elaine appointed relators Alexander, Johnson,
Thompson, Cutrer, and Aucoin as Co-Trustees of the Trusts in December 2016 (the
“Co-Trustees”). On January 11, 2017, Elaine sought a declaratory judgment in the
Fourteenth District Court, Calcasieu Parish, Louisiana (“Louisiana Court”) to
approve the appointment of the Co-Trustees of the Harrier Trust (the “Louisiana
Action”).




       1
         When relators filed this original proceeding, the judge of Probate Court No. 4 of Harris
County was the Honorable Christine Butts. Judge Butts signed a June 5, 2018 order, which was
the subject of this proceeding when filed. Judge Butts ceased to hold office of Judge of Probate
Court No. 4 on January 1, 2019. We abated this original proceeding to permit her successor, Judge
Horwitz, to reconsider Judge Butts’s June 5, 2018 ruling. On May 2, 2019, Judge Horowitz signed
the order, which denied reconsideration and granted the same relief Judge Butts granted in her
June 5, 2018 order. We now consider whether relators are entitled to mandamus relief as to Judge
Horowitz’s order.
                                               2
      On September 29, 2017, Preston filed suit against Elaine and the Co-Trustees
in Probate Court No. 4 of Harris County, alleging that they had breached their
fiduciary duties (the “Texas Action”). In short, Preston alleged that Elaine violated
her fiduciary duties as trustee by executing documents appointing the Co-Trustees
when those documents violated the Trusts’ terms. Further, Preston alleged that the
Co-Trustees violated fiduciary duties because they agreed with Elaine to withhold
distributions from Preston, which increased the trustees’ compensation.

      Preston subsequently took the deposition of Co-Trustee Adam Johnson in the
Louisiana Action. In his deposition, Johnson testified that he understood that Elaine
had sole discretion on some issues for a certain period of time, though he could not
recall which issues or the time period. He thought one of the issues may have been
accumulation of income.      He believed he came to that understanding from a
document he believed he and others signed. Specifically, he stated the following:

      Q. Was it your understanding subsequent to the acceptances that all of
      you did in Exhibit 2, was it your understanding that Mrs. Marshall could
      no longer act alone as a trustee?

      A. No, I don’t think that was my understanding.
      Q. So you thought she could go ahead and act as a trustee on her own
      without any concurrence from the other co-trustees?
                                   *     *      *

      A. My understanding is that she could — she had sole discretion on —
      on some issues.
                                   *     *      *

                                         3
Q. What issues?

A. I recall there being some understanding that there was going to be a
period of time where we were going to be essentially, you know,
learning so that we weren’t . . . . I don’t know whether or not she could
— “discretion” and “act” are two different things, I guess. Could she
act alone? I believe — I recall thinking that we were — trustees as a
group, that decisions would be made as a group.

Q. Well, you said there were certain areas that you understood in which
she would have sole discretion. What were those areas?
A. I can’t specifically recall the areas. I think one of them might have
been accumulation.
Q. Whether to accumulate or distribute income?
A. Right.
Q. And how did you come by that understanding that for a period of
time she would have sole discretion on that issue?

A. It was in a — I believe it was in a document.

Q. And so when you met for the first quarterly meeting of the trustees
after you had been appointed, it was your belief that Mrs. Marshall had
sole discretion over whether to make distributions to Preston Marshall?
A. Yes, for a period of time.
Q. What was the period of time?

A. I don’t specifically recall. It might have — I don’t specifically recall
it.

Q. You said it was in a document. Did it require your agreement or
unanimous consent of the trustees that she would have that discretion
for a period of time?
                                    4
      A. I think it required our agreement.

      Q. And do you recall executing a unanimous consent to that effect?

      A. I believe we executed a document related to that effect.

                                     *        *   *

      Q. Did you execute the document?

      A. I think I did. I think I did, yes.

                                     *        *   *
      Q. Do you recall when the period of time would end?
      A. I think — I recall maybe 18 months, maybe. But I can’t recall that
      specifically. I think its 18 months, but I’m not a hundred percent sure.

                                     *        *   *

      Q. Did you retain a copy of the document for your own records?

      A. I believe so, yes.
      According to Preston, Johnson and two other Co-Trustees, Karen Aucoin and
Wayne Thompson, also testified that the Co-Trustees in fact did not vote on whether
to make distributions to Preston. Preston claims the document to which Johnson
referred is relevant to his allegations that relators breached their fiduciary duties.

      In both the Louisiana Action and the Texas Action, Preston served requests
for production, which sought among other things production of the document
Johnson mentioned in his deposition. As relevant here, Preston requested from
Elaine and the Co-Trustees in the Texas Action:

                                              5
      All documents that exist or have ever existed signed by one or more of
      the Co-Trustees any portion of which gives or gave Mrs. Marshall any
      rights, power, or authority regarding distributions of funds or
      accumulation of funds or other assets in the Harrier Trust or Falcon
      Trust for any period of time, or any other special rights concerning the
      Harrier or Falcon Trusts; and
      At his deposition taken on November 21, 2017 in In Re: Harrier Trust,
      Docket No. 2016-3020, Div. F - 14th JDC, Parish of Calcasieu, State
      of Louisiana (attached as Exhibit B), Adam P. Johnson testified to the
      existence of an executed document at Tr. 57:19 - 60:25. Please produce
      that document.
      Elaine and the Co-Trustees objected to the production of the requested
documents because the requests called for information protected by the attorney-
client and work-product privileges. They stated that the requests sought draft
documents and documents that never became effective, as well as attorney-client
communications regarding draft documents.

      Preston filed in the Texas Action a motion to compel, a renewed motion to
compel, and a motion to compel in camera inspection of the documents at issue. The
Co-Trustees filed responses. The Co-Trustees submitted the affidavit of attorney
Edwin F. Hunter, III. Hunter testified that he and his firm Hunter, Hunter, and
Sonnier, LLC (“HHS”), had provided legal services to Elaine from April 8, 2010 to
the present, including in her capacity as Trustee of the Trusts. See Tex. Prop. Code
Ann. § 113.018(a) (“A trustee may employ attorneys . . . reasonably necessary in the
administration of the trust estate.”). Hunter also testified that he and HHS provided
legal services to the Co-Trustees “on various topics” starting in December 2016 to
the present. Hunter stated that “HHS formed mental impressions and opinions

                                         6
regarding various issues on which the trustees requested HHS advise them in their
capacities as trustees.” Hunter further attested that, in HHS’s capacity as counsel
for Elaine and the Co-Trustees, the firm assisted with various tasks and advised them
on several topics related to their duties as trustees of the Trusts. Some of these
discussions, Hunter stated, “may have related to the rights, powers, and authority
regarding distribution of funds or accumulation of funds or other assets in the Harrier
or Falcon Trust. At times, HHS may have prepared for the trustees’ consideration
work product drafts related to their duties as trustees.” Hunter stated that all
documents prepared in connection with providing the legal services described are
work-product and subject to “all applicable privileges.” We quote further from
Hunter’s affidavit:

      10. There has never been a document transferring rights, powers, or
      authority regarding distribution of funds or accumulation of funds or
      other assets in the Harrier or Falcon Trust for any time, or any other
      special rights concerning the Harrier or Falcon Trusts executed by Mrs.
      Marshall and the co-trustees. If such transfer of authority was ever
      contemplated or documents or agreements drafted evidencing any
      contemplated transfer of authority, that information would be
      privileged and undiscoverable as “work product.” No such transfer of
      authority was ever effectuated, and no documents or agreements related
      to any contemplated transfer of authority were ever executed. Again,
      any draft documents are protected “work product” or intended for
      consideration by any of the trustees as an attorney-client
      communication.
      11. At all times Mrs. Marshall and the co-trustees expected that HHS
      would keep all communications, legal advice, work-product, and
      opinions confidential. Mrs. Marshall and the co-trustees entrusted HHS
      with sensitive information that, as I understand it, they wish to refrain
      from making public. HHS’s duty to preserve both applicable privileges
                                          7
      and confidences is absolute, and HHS has not been authorized to
      deviate from its ethical responsibilities to Mrs. Marshall and the co-
      trustees in any capacity, including as a trustee of or donor to any trust
      or foundation.

      At a May 24, 2018 hearing on Preston’s motions, the trial court instructed
Elaine and the Co-Trustees to provide the court copies of the subject documents for
in camera review, which they did. In the meantime, on May 26, 2018, the Co-
Trustees filed a Motion for Protective Order in the Louisiana Action. The Louisiana
Court heard the matter on May 30, 2018, and at the conclusion of the hearing,
requested a copy of the documents. The Louisiana Court reviewed the documents
in camera and, on June 1, 2018, issued a protective order, finding that the documents
are drafts of an agreement and ruling that the preliminary drafts are protected by the
attorney-client privilege. Subsequently, the Co-Trustees provided a copy of the
Louisiana court’s protective order to the judge in the Texas Action. On June 5, 2018,
the trial court in the Texas Action signed an order granting Preston’s renewed motion
to compel and overruling Elaine’s and the Co-Trustee’s objections. The court
specifically ordered Elaine and the Co-Trustees to produce to Preston documents
responsive to the two requests for production quoted above. Respondent’s May 2,
2019 order grants the same relief and specifically orders Elaine and the Co-Trustees
to produce all the documents submitted in camera.

      Relators filed this original proceeding requesting that we order the trial court
to set aside its June 5, 2018—now the May 2, 2019—order directing relators to
produce documents responsive to specific requests for production. Relators assert
that the trial court abused its discretion because the draft documents are protected by
                                          8
attorney-client and attorney work product privileges. Relators also contend that they
do not have an adequate remedy by appeal from the trial court’s order because error
in directing them to produce privileged materials cannot be cured on appeal.

                       II. MANDAMUS STANDARD OF REVIEW

      Ordinarily, to be entitled to a writ of mandamus, relators must show that the
trial court clearly abused its discretion, and that they lack an adequate remedy by
appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per
curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law or if it clearly
fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B.
Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per
curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). The scope of discovery is within the discretion of the trial
court. In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig.
proceeding). Appeal is not an adequate remedy when the trial court has erroneously
ordered the production of privileged documents. In re Silver, 540 S.W.3d 530, 538
(Tex. 2018) (orig. proceeding).

                                     III. ANALYSIS

A.    Abuse of Discretion

      1.     Applicable law

      Confidential communications between client and counsel made to facilitate
legal services are generally insulated from disclosure. See Tex. R. Evid. 503(b); In
                                            9
re XL Specialty Ins. Co., 373 S.W.3d 46, 49 (Tex. 2012) (orig. proceeding). This
rule “promotes free discourse between attorney and client, which advances the
effective administration of justice.” XL Specialty Ins. Co., 373 S.W.3d at 49;
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex. 1993). The Supreme Court
of Texas has discussed the different variations of the privileges protecting
confidential communications applicable in multi-party litigation in Texas.           XL
Specialty Ins. Co., 373 S.W.3d at 49–53. One such privilege, the “joint client” or
“co-client” doctrine, applies in Texas “[w]hen the same attorney simultaneously
represents two or more clients on the same matter.” Id. at 50. “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 adversely affected by the lawyer’s
duties to the other.” Id. (citing 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.’” Id. (quoting In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 922
(Tex. App.—Dallas 2006, [mand. denied])).

      2.     Relators established that the requested documents come within the
             scope of the privilege

      In opposing production of the requested documents on the grounds that they
are protected communications, relators were required to show that the documents
are among those protected by the attorney-client privilege. See id. at 53–55 (stating
relator failed in its burden to make required showing); In re Russo, 550 S.W.3d 782,

                                          10
789 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) (party asserting
privilege has burden of proof). The party asserting the privilege may establish a
prima facie case for the privilege by testimony or affidavit. In re Christus Santa
Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). “The prima
facie standard requires only the minimum quantum of evidence necessary to support
a rational inference that the allegation of fact is true.” In re E.I. DuPont de Nemours
& Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam) (internal
quotation marks & citation omitted). The documents themselves may constitute
sufficient prima facie evidence of attorney-client privilege. Weisel Enters., Inc. v.
Curry, 718 S.W.2d 56, 58 (Tex. 1986) (orig. proceeding) (per curiam).

        Hunter’s affidavit establishes that Hunter and HHS have represented the Co-
Trustees and Elaine in an attorney-client capacity on matters related to relators’
duties concerning the Trusts. The affidavit establishes further that the documents at
issue were created during HHS’s joint representation and for the purpose of
rendering legal services to Elaine and the Co-Trustees in their capacities as trustees.
Hunter states that HHS was never authorized to waive any privileges. There are no
assertions or evidence that any controversies exist among any of the relators. See
XL Specialty Ins. Co., 373 S.W.3d at 50. Because HHS simultaneously represents
all relators on the same matter, we conclude that the joint client doctrine applies
here.

        We next consider whether relators demonstrated that the requested documents
come within the scope of the privilege. Hunter stated in his affidavit that HHS had
discussions with Elaine and the Co-Trustees, which “may have related to the rights,
                                          11
powers, and authority regarding distribution of funds or accumulation of funds or
other assets in the Harrier or Falcon Trust.” Hunter explained that although a transfer
of certain authority to Elaine may have been contemplated, an agreement to that
effect was never signed by all Co-Trustees and Elaine. At times, he said, HHS “may
have prepared for the trustees’ consideration work product drafts related to their
duties as trustees” but any drafts of such a contemplated agreement were
communicated to HHS’s joint clients for the purpose of facilitating the rendition of
legal services and are privileged.

      Generally, matters of strategy discussed between client and counsel are
privileged. See Tex. R. Evid. 503(b)(1); Tex. R. Civ. P. 192.5(a); General Motors
Corp. v. Gayle, 951 S.W.2d 469, 474 (Tex. 1997); In re AEP Tex. Cent. Co., 128
S.W.3d 687, 692 (Tex. App.—San Antonio 2003, orig. proceeding). In this vein,
draft agreements and documents may be protected by the attorney-client privilege.
See Muller v. Walt Disney Prods., 871 F. Supp. 678, 682 (S.D.N.Y. 1994) (holding
that preliminary drafts of agreement were protected by attorney-privilege because
they contained client confidences and legal advice and there was no indication that
they had been disclosed to third parties); In re City of Dickinson, 568 S.W.3d 642,
646 (Tex. 2019) (orig. proceeding) (holding that emails exchanged between attorney
and client’s employee and accompanying drafts of affidavit were privileged); In re
ExxonMobil Corp., 97 S.W.3d 353, 364–65 (Tex. App.—Houston [14th Dist.] 2003,
orig. proceeding) (holding transmittal memos from attorney to client’s employees
discussing draft agreements were privileged); In re Toyota Motor Corp., 94 S.W.3d
819, 826 (Tex. App.—San Antonio 2002, orig. proceeding) (holding that draft

                                          12
reports, which were sent to relator’s attorneys by relator’s representatives for review
and comment, were factual information contained in privileged communications and
were thus privileged); In re Monsanto Co., 998 S.W.2d 917, 931 (Tex. App.—Waco
1999, orig. proceeding) (holding that drafts of patent applications and letters to EPA,
which were sent to attorneys for review and comment, were privileged).

      Although Johnson testified that he believed he signed a document that he
recalled purported to give Elaine sole discretion over accumulation and distribution
of funds to Preston, the Co-Trustees contend that no binding agreement exists
because Elaine never executed any such agreement. The Co-Trustees maintain that
no agreements materialized between them and Elaine for Elaine to have sole
authority over income accumulation or distribution to Preston. The record supports
this argument. We have reviewed copies of the responsive documents, which were
submitted to the trial court and to this court in camera. Based on our review, we
conclude they constitute attorney-client communications between HHS and the Co-
Trustees and come within the scope of the joint client privilege doctrine. Moreover,
Co-Trustee Edward Alexander testified that, from the time that he was appointed as
Co-Trustee until he was sued in this case, Elaine never asked him to allow her to
make decisions regarding distributions to Preston. Thompson further testified that
he never delegated authority to Elaine to make decisions concerning distributions to
Preston. Relators have met their burden in showing that the responsive documents
are privileged.

      Preston contends that the attorney-client privilege does not protect the
requested documents here, even though communications between a trustee and a
                                          13
lawyer can be protected by the attorney-client privilege. See Huie v. DeShazo, 922
S.W.2d 920, 923 (Tex. 1996). Preston cites Huie for its statements that “a trustee’s
duty of full disclosure extends to all material facts affecting the beneficiaries’ rights”
and that “[a]pplying the attorney-client privilege does not limit this duty.” Id.
Preston argues that the material fact that the Co-Trustees delegated authority to
Elaine cannot be privileged, even if the Co-Trustees and Elaine took this action while
litigation was pending and on legal advice. Preston concludes that Elaine and the
Co-Trustees had a duty to disclose the delegation of authority because the duty of
disclosure exists independently of the rules of discovery, and applies even if no
litigation exists between the trustees and the beneficiary. See id.

      We reject this argument for two reasons. First, the record does not support
Preston’s proposition that that the Co-Trustees and Elaine had an agreement to
delegate authority as Preston alleges. Second, Huie is distinguishable, as we discuss
below. On the first point, Preston argues the documents are discoverable because
the contemplated agreements, drafts or not, became effective. Preston asserts that a
contract signed by only one party may still be effective, if one party signs and the
other party accepts by her acts, conduct, or acquiescence in the terms of the contract.
See DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 44–45 (Tex.
App.—Houston [1st Dist.] 2008, no pet.) (holding that promissory note between the
appellant and the appellee was a valid contract even though appellee did not sign it
where appellee took possession of the note, acted on it, and did not object to any part
of it). Preston claims that the Co-Trustees did not vote on distributions because they
did not have the authority to vote but instead had ceded that authority to Elaine.

                                           14
Preston argues that, because it is undisputed that he did not receive his distributions,
the evidence that the Co-Trustees did not participate in any decision with regard to
distribution establishes that Elaine exercised sole authority. Therefore, according to
Preston, it is irrelevant that Elaine did not sign the documents.

      Contracts require mutual assent to be enforceable.             Baylor Univ. v.
Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (per curiam). Evidence of mutual
assent in written contracts generally consists of signatures of the parties and delivery
with the intent to bind. Id. Although signatures and delivery are evidence of mutual
assent required for a contract, they are not necessarily essential. Phillips v. Carlton
Energy Grp. LLC, 475 S.W.3d 265, 277 (Tex. 2015). “[A] contract need not be
signed to be ‘executed’ unless the parties explicitly require signatures as a condition
of mutual assent. If a written draft of an agreement is prepared, submitted to both
parties, and each of them expresses his unconditional assent thereto, there is a written
contract.” Id. (internal quotations marks and citations omitted).

      Without agreeing or disagreeing with Preston’s premise that the documents
are discoverable—in the context of the present fiduciary litigation—if they became
effective agreements, Preston’s assertion that the Co-Trustees and Elaine entered
valid agreements without Elaine’s signature is not supported by the evidence. The
testimony of Johnson, Aucoin, and Thompson do not establish that valid, binding
agreements on the accumulation and distribution of funds exist. Johnson may have
signed a proposed document, but the record and the documents we have reviewed in
camera do not reflect that all parties to any purported agreement expressed their
unconditional assent to a proposal by means of a signature or otherwise. The
                                          15
testimony of the Co-Trustees cited by Preston shows only that no vote was taken.
Their testimony does not suggest beyond speculation that Elaine had sole discretion
to make decisions on the accumulation and distribution of funds, much less that the
Co-Trustees and Elaine had entered into any such agreement. There is nothing in
the record to indicate that Elaine acted on the purported agreements such that she
assented to the terms without her signature.

      Separately, Huie does not support piercing the privilege in this case. In Huie,
the court considered whether the attorney-client privilege protects communications
between a trustee and his or her attorney relating to the administration of a trust from
discovery by a trust beneficiary. Huie, 922 S.W.2d at 921. There, a trust beneficiary
sued the trustee, alleging that he had mismanaged the trust, engaged in self-dealing,
diverted business opportunities from the trust, and commingled and converted trust
property. Id. at 922. The beneficiary noticed the deposition of the trustee’s attorney,
who appeared but refused to answer questions about the management and business
dealings of the trust. Id. After an evidentiary hearing, the trial court held that the
attorney-client privilege did not prevent the beneficiary from discovering the
attorney’s pre-lawsuit communications. Id.

      The court in Huie observed that trustees “owe beneficiaries ‘a fiduciary duty
of full disclosure of all material facts known to them that might affect [the
beneficiaries’] rights.’” Id. at 923. (quoting Montgomery v. Kennedy, 669 S.W.2d
309, 313 (Tex. 1984)). Furthermore, this duty exists independently of the rules of
discovery and applies even if no litigious dispute exists between the trustee and
beneficiaries.   Id.   While the attorney-client privilege protects confidential
                                          16
communications between a client and the attorney made for the purpose of
facilitating the rendition of professional legal services to the client, a person cannot
cloak a material fact with the attorney-client privilege merely by communicating it
to an attorney.    Id.   The Huie court illustrated the point with the following
hypothetical:

      Assume that a trustee who has misappropriated money from a trust
      confidentially reveals this fact to his or her attorney for the purpose of
      obtaining legal advice. The trustee, when asked at trial whether he or
      she misappropriated money, cannot claim the attorney-client privilege.
      The act of misappropriation is a material fact of which the trustee has
      knowledge independently of the communication. The trustee must
      therefore disclose the fact (assuming no other privilege applies), even
      though the trustee confidentially conveyed the fact to the attorney.
      However, because the attorney’s only knowledge of the
      misappropriation is through the confidential communication, the
      attorney cannot be called on to reveal this information.
Id.

      Nonetheless, the court flatly rejected the beneficiary’s argument that a
trustee’s duty of disclosure extends to any and every communication between the
trustee and his attorney. Id. The court explained that (1) its holding did not affect
the trustee’s duty to disclose all material facts and to provide a trust accounting to
the beneficiary, even as to information conveyed to the attorney; (2) the beneficiary
could depose the attorney and question him about his handling of trust property and
other factual matters involving the trust; and (3) the attorney-client privilege did not
bar the attorney from testifying about factual matters involving the trust, so long as
he was not called on to reveal confidential attorney-client communications. Id.

                                          17
      Although a trustee owes a duty to a trust beneficiary, the trustee in Huie did
not retain the attorney to represent the beneficiary but to represent himself in
carrying out his fiduciary duties. Id. at 925. Contrary to Preston’s point, the Huie
court recognized that communications between a trustee and the trustee’s attorney
made confidentially and for the purpose of facilitating legal services remain
protected.   Id. at 923-24.     The hypothetical in Huie involved the trustee’s
misappropriation of trust funds, which he revealed to his attorney for purpose of
obtaining legal advice. Id. at 923. The trustee’s misappropriation was a material
fact of which the trustee knew independent of the communication. Id.

      In contrast to the circumstances in Huie, and as explained above, HHS and all
the Co-Trustees had an attorney-client relationship at the relevant time, and any
communications among HHS and their joint clients regarding the contents of the
draft documents were made for the purpose of obtaining legal services from HHS,
and the Co-Trustees’ knowledge of the draft documents was not gained independent
of receiving legal advice. Accepting Preston’s view of the discoverability of the
subject documents would strip the attorney-client privilege and joint-client doctrine
of their core purpose and meaning. Therefore, relators had no duty under Huie to
disclose the draft documents to Preston.

      3.     The joint clients did not waive the attorney-client privilege

      Preston asserts that Johnson waived any privilege by testifying about the draft
documents at deposition without objection. Discovery privileges are waived by
voluntary disclosure by the holder of the privilege. In re Ford Motor Co., 211
S.W.3d 295, 301 (Tex. 2006) (orig. proceeding) (per curiam). A person waives his
                                       18
privilege if he voluntarily discloses any significant part of the privileged matter
unless such disclosure is privileged. Tex. R. Evid. 511(a)(1). In other words, Rule
511(a) “allows a partial disclosure of privileged material to result in an implied
waiver of the privilege as to additional material that has not been disclosed.” Berger
v. Lang, 976 S.W.2d 833, 837 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)
(quoting Terrell State Hosp. of Tex. Dep’t of Mental Health & Mental Retardation
v. Ashworth, 794 S.W.2d 937, 940 (Tex. App.—Dallas 1990, orig. proceeding)).
“This implied waiver occurs only if the disclosure is of any significant part of the
privileged material.” Id. (internal quotation marks & citation omitted).

      Preston relies on the Dallas Court of Appeals’ opinion in Ashworth in support
of his position that any privilege was waived by Johnson’s testimony. Preston’s
reliance on that case is misplaced. In Ashworth, the staff of a state hospital met
following a suicide by a young patient to determine if anything could be learned to
prevent similar events in the future. See Ashworth, 794 S.W.2d at 939. The meeting
resulted in a “psychological autopsy,” which consisted of a verbatim transcript of
the meeting and a summary conclusion. Id. The hospital committee privilege
protects information generated by a hospital committee in its investigation and
review process and extends to committee meeting minutes and recommendations.
Id.

      A state senator sent a list of questions to the hospital’s superintendent, who
responded to the questions in a letter. Id. The superintendent’s response to the
senator included information and conclusions in the psychological autopsy, and the
trial court could have concluded that the superintendent reviewed the psychological
                                         19
autopsy in responding to the senator’s questions and thereby disclosed significant
portions of the report. Id. at 940–41.

      Here, Johnson’s testimony shows that he was not certain about the purported
agreement to allow Elaine to make decisions about the accumulation and distribution
of trust funds. Johnson testified that (1) one of the areas in which Elaine had sole
discretion “might have been accumulation”; (2) he believed that Elaine had sole
discretion on that issue “for a period of time”; (3) he “believe[d] [that information]
was in a document”; and (4) he “believed we executed a document related to that
effect[.]” There was no definitive testimony by Johnson on the issue. Johnson’s
equivocal testimony did not disclose details of the purported agreement or rise to the
level of the disclosure of the report in Ashworth. The privilege was not waived by
Johnson’s testimony.

      For the above reasons, we conclude that the trial court abused its discretion
by overruling relators’ privilege objections and compelling them to produce
privileged documents responsive to the quoted requests for production, including the
documents submitted in camera.

B.    No Adequate Remedy on Ordinary Appeal

      Having concluded that relators established the trial court’s abuse of discretion,
we must determine whether they have an adequate remedy by ordinary appeal. A
relator does not have an adequate remedy by appeal when the trial court erroneously
orders the production of privileged documents. Silver, 540 S.W.3d at 538. We hold
that relators do not have an adequate remedy by appeal because the error in ordering

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the production of privileged documents cannot be cured on appeal. Therefore,
conditional issuance of the writ of mandamus is appropriate.

                                   IV. Conclusion

      We conditionally grant relators’ petition for writ of mandamus and order the
trial court to vacate its May 2, 2019 order. The writ will issue only if the trial court
fails to act in accordance with this opinion. We lift the stay issued on June 22, 2018.




                                        /s/    Frances Bourliot
                                               Justice



Panel consists of Justices Wise, Jewell, and Bourliot.




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