Confidential counsel

When government bodies use attorneys to conduct their investigations, the results can often remain secret under recent court decisions.

From the Winter 2007 issue of The News Media & The Law, page 29.

By Nathan Winegar

A public body’s decision to utilize a private lawyer in an internal investigation can determine whether the fruits of the investigation are turned over to the public, a recent Oregon court case illustrates.

The Oregon Supreme Court recently declined to review a case where an intermediate court upheld a school board’s invocation of attorney-client privilege to block the release of an internal investigation into possible financial chicanery.

Now open government advocates must turn to the state Legislature to fix what they believe is a gaping hole in the state public records law.

Critics say this case is the latest example of a public body circumventing open records laws by hiring a lawyer to conduct an investigation a nonlawyer could easily have completed and hiding the results behind the attorney-client privilege.

Bradford Aspell, the attorney who argued in court to have the records released, said the court’s current interpretation of the law creates a significant window of opportunity for local governments to conceal public records with potentially damaging information.

“A public body that has concerns about disclosure resulting from misfeasance, malfeasance or nonfeasance or potentially anything of embarrassment to them can now hire an attorney to do an investigation and hide behind the attorney-client privilege to not disclose information that would be public,” he said.

The dispute dates to a public school board meeting in 2000, when residents of Klamath County, Ore., made allegations of financial mismanagement by district employees. In response, the school board chairman contacted a lawyer who recommended an investigation, which that same lawyer subsequently led.

Following the secret investigation, the school board exonerated itself and district officials in a press release, which stated that “the charges against district administrators are not substantiated and we believe there is clear evidence of no wrongdoing!” (emphasis in original)

In response to this announcement, county resident Bert Teamey, following the procedure set out in state law, asked the local district attorney to order the release of details of the then-completed investigation.

The district attorney stopped short of making the records public, instead ordering the results of the investigation turned over to his office for review. The school board went to court to block this move. A trial judge sided with the school board and overturned the district attorney’s order, citing attorney-client privilege.

The attorney-client privilege is a legal recognition of the need for confidentiality between a lawyer and his client. The privilege is based in part on a theory that open communications with an attorney will ensure adherence to the law, which in turn will benefit society.

A state appeals court agreed with the trial court that a protected attorney-client communication existed.

The court found that the school board’s contract attorney conducted an investigation in the course of eventually providing legal advice on how to handle the alleged financial mismanagement, and thus, all information compiled by the attorney was protected by the attorney-client privilege. The court wrote that the district’s purpose in hiring an attorney “was to seek legal advice” and “the investigation was carried out to facilitate his rendition of legal advice.”

A catchall exception

The ruling demonstrates the difficulty journalists can have extracting information that would be public but for the government’s decision to include a lawyer in the process. These cases raise the issue of how much protection should be afforded to government bodies when they approach lawyers for legal advice.

The Bar-Press-Broadcasters Council, a group of lawyers and journalists in Oregon, weighed in with a friend-of-the-court brief asking the state Supreme Court to review the case. The council advanced a theory that attorney-client privilege can be available to public bodies only when the Legislature has explicitly allowed it.

The council argued it is not enough for a government body to merely hire an attorney and assert attorney-client privilege — a judge must carefully scrutinize whether all of the elements of the privilege are present in a specific case.

One element of the attorney-client privilege is intent by the client to enter into a confidential communication. The council argued the Legislature had not authorized public bodies to enter into confidential communications in a situation like this and thus, the attorney-client privilege cannot apply. Otherwise, it said, a public body could use the privilege as a “catchall” exception to the public records law simply by involving a lawyer in the handling of sensitive information.

“The problem now is any public body that gets accused of wrongdoing can hire an attorney to investigate and then whatever the outcome of the investigation is, it can keep it secret,” said Judson Randall, chairman of the Bar-Press-Broadcasters Council.

Legislative remedy

With the Supreme Court declining to review the case, that theory remains untested, and media groups are left only with the option of asking the state Legislature to curtail the government’s use of attorney-client privilege.

LeRoy Yorgason, executive director of the Oregon Newspaper Publishers Association, said his group has been pushing in the state Legislature for a change in the public records law.

Specifically, the group is asking the Legislature to clarify that when facts about a public body’s dealings are interspersed with legal advice in a series of documents, those portions dealing with the facts must be separated out and released to the public. Oregon open meetings law already limits when a public body can go into executive session to consult with an attorney.

“We’re trying to be as narrow as possible and going in only on the open records issue,” Yorgason said.

Other states have placed stricter limits on when a government body can avail itself of the attorney-client privilege in blocking access to public records or meetings. For example, some states have narrowed the privilege to those instances when the governmental entity is engaged in a lawsuit or facing an imminent threat of one being filed.

The Georgia Supreme Court recently found that questions from a criminal grand jury posed to a government entity are not sufficient evidence of imminent litigation such that a government body may avail itself of the attorney-client privilege under state law.

In that case, Decatur County v. Bainbridge Post Searchlight, the court ordered the release of transcripts of an improperly closed meeting, saying attorney-client privilege was not appropriate because “[a]t issue were merely the proposed grand jury presentments which questioned the propriety of certain actions taken by the Commissioners. Thus, it is clear that the topic of the meeting related to the manner in which the county’s business was being conducted and, as such, the purpose was to fashion a political response, not to prepare a legal defense.”

Looking at context

Whether a protected attorney-client relationship exists can depend heavily on the facts of each case.

Paul R. Reed, a professor at the Washington College of Law at American University, said the strongest argument for the release of documents in the Teamey case was to assert that the investigation was independent of rendering legal advice.

“It is clear that investigations are part of giving legal advice if that is the primary purpose — assessment of primary purpose has to look at context,” Reed said.

“Why did they do this? Is there any reason for doing this audit or examination or investigation outside of getting legal advice?” Reed said. “They might do it because they are subject to an annual audit. The fact you assign a lawyer to do an accountant’s job does not make it legal.”

However, Aspell said that argument was not available to his client because the school board’s assertion of attorney-client privilege blocked discovery of any initial communications between the school board and its attorney to determine the asserted reasons for the investigation.

Perhaps Teamey’s strongest argument was that the school district had waived the protection of the attorney-client privilege by issuing the press release that purported to exonerate school administrators. The intermediate court declined to address this, stating that the issue had not been properly preserved for appellate review at the trial court level.

Whether an assertion of attorney-client privilege can be sustained can depend on many factors, and does not even require a “client” to formally retain a lawyer.

For example, in Indiana, a state appeals court ruled in August that an investigation by two Indiana University trustees into the behavior of then-head men’s basketball coach Bobby Knight was not subject to the state’s public records act because the trustees happened to be attorneys.

In that case, attorney work product, a doctrine closely related to the attorney-client privilege, was invoked to prevent The Indianapolis Star from obtaining documents related to the Knight investigation. Shortly after the investigation, Indiana University President Myles Brand fired Knight for repeated inappropriate behavior.

The Star argued that no attorney-client relationship existed to protect the results of the otherwise public investigation because the university had not employed the trustees in their capacity as lawyers.

The court was convinced otherwise, pointing to Brand’s reliance on the two trustees for legal advice, including the production of a memorandum describing the possible legal implications of Knight’s behavior.