Restoring the Attorney-Client and Work Product Privileges for Government Entities
A little more than 20 years ago, government entities in Florida lost the ability to invoke the attorney-client privilege in almost all meetings between the governing body and its government attorney.1 Similarly, a little more than 25 years ago, government entities in Florida and government attorneys lost almost all claims of work product privilege under the public records law.2 State legislation has attempted to partially restore these privileges, but as discussed in this article, the legislation is inadequate. These topics are currently being discussed in two separate forums.
In January 2007, Governor Crist created the Commission on Open Government. The commission is directed to review, evaluate, and make recommendations regarding Florida’s public records and open meeting laws. The commission should make its recommendations in late 2008. This author and the Florida Association of Counties have requested the commission examine the attorney-client and work product privileges in the public sector. As of this writing, the commission has not taken any action on this request.
The immediate past president of The Florida Bar, Henry M. Coxe III created, and the Board of Governors approved, the appointment of the Attorney-Client Task Force. The task force is directed to examine the privilege and its exceptions, identify issues that impact the privilege, and recommend resolutions to those issues. The task force initially examined policies adopted by some federal agencies that infringed on the attorney-client privilege. The task force created subcommittees to examine the status of these privileges and recommend possible revisions to the law or rules. The task force, at the request of this author, has recently agreed to look at the attorney-client and work product privileges in the public sector and recommend revisions. As of the writing of this article, an additional subcommittee is reviewing the status of the privilege and may recommend revisions to the law.
This article will discuss the importance of the attorney-client and work product privileges for government entities, identify the problems with current laws, and recommend specific revisions to restore these well recognized privileges.
Importance of the Attorney-Client Privilege for Government
In a society that honors the rule of law, the full disclosure of all relevant facts to legal counsel, no matter how embarrassing or damaging these facts might be, is essential to enable the attorney to render sound legal advice. In the private sector, clients seek such legal counsel on a regular basis with the confidence and knowledge that these private communications will be held inviolate under the time-honored attorney-client privilege.3
For government, however, elected and appointed officers and employees do not share the attorney-client privilege to the same extent. Not only is the privilege not co-extensive, there is also confusion and uncertainty about the very existence of the privilege in the public sector in Florida. This uncertainty hampers full disclosure and discussion between the attorney who represents the government and the government as client. As one U.S. Supreme Court Justice stated, an uncertain privilege is a little better than no privilege at all.4
The art of governing in the modern world is complex and challenging even to the most seasoned of government officers and employees. They need to regularly consult with their government attorneys to comply with the substantial and procedural laws to avoid trampling on the rights of private parties and to avoid violating the laws they are sworn to uphold. Public officers and employees should be encouraged to be completely candid with their attorneys without fear or inhibition that their communications will be disclosed.
The attorney-client privilege actually promotes the administration of justice of the government. Government attorneys, like all attorneys, are charged with the duty of upholding the law and advising their clients to follow the law.5 Government lawyers can neither further the administration of justice, nor prevent needless litigation, nor ensure government officials’ compliance with the law, if the government lawyers, despite their best efforts, are unable to obtain all the relevant facts from their public clients. Candidly, it is unrealistic to expect anyone to disclose relevant facts and seek legal advice in televised and recorded meetings that are open and available to proponents and opponents alike.
Sunshine Law and Attorney-Client Privilege
The attorney-client privilege for governments in Florida is limited by the Government-in-the-Sunshine Law, commonly referred to as the Sunshine Law.6 Although the Sunshine Law does not specifically mention the attorney-client privilege, the Florida Supreme Court held in Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985), that the privilege was waived by the Florida Legislature by implication. The court declared that the attorney-client privilege could not be claimed for communications made at public meetings. An essential element of the privilege, namely confidentiality, was obviously missing. The Supreme Court declined to find any independent basis for the privilege, like the evidence code or the rules of professional conduct, and deferred to the state legislature to create exemptions for the government.
The Florida Supreme Court is in the minority of state high courts to reject an independent basis for the attorney-client privilege for government. Courts in other states have recognized an independent basis for the privilege, often based on the strong policy considerations that apply to private clients.
A frequently cited case that reconciles the application of the privilege and the open meetings law is Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal. Rptr. 480 (Cal. App. 3 Dist. 1968). The California Court of Appeals held that the attorney-client provisions of the California Evidence Code operated concurrently with the California Open Meetings Law. The court weighed the separate policy objectives of an open meetings requirement against the “value which society places on legal representation by assuring the client full disclosure to the attorney unfettered by fear that others will be informed.”7 The lack of evidence of any legislative intent to abrogate the attorney-client privilege, by implication or otherwise, led the court to conclude that the privilege can operate concurrently with their open meetings law.
Since the Florida Supreme Court decision in Neu, the Florida Legislature created a unique type of private “attorney-client” session, sometimes referred to as a shade session.8 Under the current statutory law, a government lawyer can meet in a private session with a board or commission to discuss pending litigation. The discussion is limited to “settlement negotiations, or strategy sessions related to litigation expenditures.” Only specifically designated persons may attend the session. Finally, and most significantly, these sessions must be transcribed by a certified court reporter, and the record is then made public after the conclusion of the litigation.
These artificial limitations have severely limited the usefulness of these sessions. No matter how significant or imminent the threatened litigation, an attorney-client session cannot be held to discuss the claim or related strategies to avoid a lawsuit. Essential information may not be available during the sessions because necessary individuals, who are not specifically authorized by statute, are prohibited from attending these sessions. Making the transcript public at the conclusion of the litigation means that other litigants, present or future, can use this information to their own personal advantage in other lawsuits. Even worse, a party who is the subject of the lawsuit, can dismiss the case, obtain a copy of the transcript, and then refile the case utilizing the information obtained in the attorney-client session.
Due to these constraints and restrictions, governments are understandably reluctant to hold these sessions. The result is elected officials do not obtain the type of legal advice that is essential to good government and its citizens. As the court aptly stated in attempting to reconcile the open meetings law and the attorney-client privilege: “Public agencies face the same hard realities as other civil litigants. An attorney who cannot confer with his client outside his opponent’s presence may be under insurmountable handicaps.”9
Public Records Law and the Attorney-Client and Work Product Privileges
Early in the history of Florida’s Public Records Act, the Florida Supreme Court declined to recognize any exemption for a government attorney’s work product or attorney-client privileged documents. In Wait v. Florida Power and Light Company, 372 So. 2d 420 (Fla. 1979), the Supreme Court of Florida found that the legislature intended to exempt only those public records that were made confidential by statute. According to the Court, documents that were confidential or privileged as a result of judicial creation — such as those protected by the attorney-client and work product privileges — were not exempt. Any exemption, the Court noted, must come from the legislature and not from the courts.
In response to the court’s holding in Wait, the Florida Legislature created a limited and temporary exemption for certain documents of a government attorney.10 First, the exemption protects only “opinion work product,” not the “fact work product” of the government attorney. Second, the litigation or adversarial proceeding must be “imminent” as opposed to “substantially likely.” Finally, and most significantly, the exemption terminates at the conclusion of the litigation.
As a result of these limitations, government lawyers are reluctant to offer legal advice in writing to the public client. Some government lawyers do not take notes of meetings. Government lawyers are reluctant to create records and work product that are subject to disclosure under the public records. They are often placed in ethical dilemmas trying to maintain the confidentiality of information while abiding by the public records law. Inefficiency, unfairness, and sharp practices develop when offering legal advice or preparing for trial.
Further, demands for a government attorney’s work product or attorney-client documents are often made by a litigant or their attorney in the form of a public records request. When the time period for obtaining documents through the normal discovery process of litigation expires, a party or his or her attorney will then file a request to inspect the public records. Government attorneys are at a disadvantage because they can no longer engage in discovery themselves, yet are required to respond to requests for public records while preparing their case for trial. To prevent their trial notes and research from being disclosed as public records, government attorneys have been forced to file actions in court, all while preparing for trial.11
In contrast to Florida, the courts of other states have found that public records laws do not abrogate the attorney-client privilege because the two can co-exist while protecting the fundamental purpose of each. Most recently, the Massachusetts Supreme Court recognized the attorney-client privilege of public entities as a fundamental component of the administration of justice. In Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 870 N.E.2d 33 (Mass. 2007), the Court held that the government’s attorney-client privilege still existed after the passage of the public records law. “It would also severely inhibit the ability of government officials,” the opinion states,
to obtain quality legal advice essential to the faithful discharge of their duties, place public entities at an unfair disadvantage vis-à-vis private parties with whom they transact business and for whom the attorney-client privilege is all but inviolable, and impede the public’s strong interest in the fair and effective administration of justice.12
Revisions to the law are necessary to remove the legislative or judicial barriers that impede the government attorney’s ability to provide effective legal counsel to the government. The government should be able to invoke the attorney-client privilege when the government actor seeks legal advice in the performance of public duties. The governor and the Florida cabinet, city and county commissions, special districts, and authorities should be allowed to meet with their attorney in private to discuss all aspects of threatened or pending litigation, and these discussions should remain private. Disclosing attorney-client documents or work product to opposing counsel during litigation serves no public purpose.
An amendment to the Sunshine Law should be enacted that would allow government attorneys to meet in a private attorney-client session with their government client, including boards, commission, agencies, and authorities, concerning threatened or pending litigation without the requirements of making a transcript of the proceeding. Necessary persons should be permitted to attend these sessions as designated by the government attorney.
A model for this already exists in regard to collective bargaining matters.13 Under Florida’s laws, private meetings are permitted between the city and county commissions and other legislative bodies and their chief executive officers (e.g., city managers and their employees) in collective bargaining matters. There is no requirement for a transcript or limitation on the persons who can attend this private meeting. There are no reported abuses of this exemption.
An amendment to the Public Records Law should be enacted that would exempt from disclosure a government attorney’s opinion work product and fact work product, including documents containing attorney-client information. This amendment for a government attorney’s work product would provide protection equivalent to the work product privilege enjoyed by private attorneys. There is authority for protecting the work product of government attorneys. The Restatement (Third) of the Law Governing Lawyers, §74, Comment b, states “The objectives of the attorney-client privilege…, including the special objectives relevant to organizational clients…, apply in general to governmental clients. The [attorney-client] privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture.” A court’s private inspection of the documents could resolve any perceived abuse of the exemption.
The law should also be amended to prevent the abuse of utilizing the public records law to obtain the discovery documents relating to a pending lawsuit. A party in litigation, or the party’s attorney, should obtain the records through the discovery process like any private party. A model solution exists under federal law that exempts from disclosure a United States government attorney’s work product. Like Florida’s Public Records Act, the federal government’s counterpart, the Freedom of Information Act, is intended to provide for full agency disclosure of documents unless they are exempt under specific statutory language. Exemption five of the Freedom of Information Act provides that “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” are exempt form the obligation to disclose.14
Courts have interpreted this exemption to mean that documents, which would be privileged in the civil context for discovery purposes, are not discoverable under the Freedom of Information Act, including those documents containing attorney-client information and attorney-client work product.15 As the United States Supreme Court has noted, with respect to the federal government, while access to public documents should not be less or greater for a litigant than for other citizens, the public records law was designed to inform the public about government action and “not to benefit private litigants.”16
After 25 years of experience under Florida’s unique Sunshine Law and public records law, it is time to examine the application of the attorney-client and work product privileges. Government appointed and elected officials and employees should be encouraged to seek legal advice, and disclose to their attorneys all relevant facts, no matter how embarrassing or damaging. Government attorneys should render legal opinions and offer advice based upon full knowledge of the facts. Florida’s citizens would be well served by restoring the time-honored attorney-client privilege and work product doctrine. Likewise, the work product of government attorneys should be afforded the same protections and privileges as attorneys representing private clients. Quoting from one appellate court: “Government should have no advantage in legal strife; neither should it be a second-class citizen.”
1 Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1983).
2 Wait v. Florida Power and Light Co., 372 So. 2d 420 (Fla. 1979).
3 See Marion J. Radson & Elizabeth A. Waratuke, Attorney-Client and Work Product Privileges of Government Entities, 30 Stetson L. Rev. 799 (2001).
4 Justice Rehnquist in Jaffee v. Redmond, 518 U.S. 1, 17-18 (1996), quoting from Justice Stevens in Upjohn Co. v. U.S., 449 U.S. 383, 393 (1981).
5 Upjohn Co. v. U.S., 449 U.S. at 389 (1981).
6 Fla. Stat. §119.01 (2007).
7 Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal. Rptr. 480, 489 (Cal. App. 3 Dist. 1968).
8 Fla. Stat. §286.011 (2007).
9 Sacramento, 69 Cal. Rptr. at 490.
10 Fla. Stat. §119.071(1)(d)(1) (2007).
11 In Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998), the Florida Supreme Court found that the government attorney’s notes made in preparation for trial were not public records. Because they were not public records, these notes were not subject to inspection even after the conclusion of the litigation.
12 Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 870 N.E.2d 33, 36 (Mass. 2007).
13 Fla. Stat. §447.605 (2007).
14 5 U.S.C. §552(b)(5) (1994).
15 N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975).
16 Id. at 143. n. 10.
Marion J. Radson is the city attorney of Gainesville. He received his J.D. from the University of Florida, College of Law. He is board certified by The Florida Bar in city, county and local government law. He currently serves on The Florida Bar’s Attorney-Client Task Force. The author thanks Elizabeth A. Waratuke who provided valuable assistance in writing this article.
This column is submitted on behalf of the City, County and Local Government Law Section, Elizabeth M. Hernandez, chair, and Jewel W. Cole, editor.