Observation: If you look at all the filings on this case you'll see they're coming in at great speed. The judge and the defendant (the Board) have to read them all. All this is preface to this post and the fact that as I finally get this up,
- the judge has already ruled in favor of the plaintiffs on attorney-client privilege
- the Board has requested a stay
- the judge has denied the stay
It's great that the court is posting these documents so quickly - the denial of the stay was signed and posted today. But that means my post on attorney-client privilege is a little behind the times. Nevertheless, it still has general relevance. So here it is:
The Alaska Redistricting Board attorney claimed a very broad interpretation of Attorney-Client Privilege (ACP here).
The Plaintiffs claimed that the Board made decisions out of the view of the public - the Anchorage plaintiffs say this about the Eagle River Senate pairings, the Valdez plaintiffs and Mat-Su plaintiffs say this about the decision to put Valdez in a Mat-Su district - and so they want to know what happened at the lengthy Executive Sessions held the last week of the proclamation process. They also want to see what the attorney told the Board members in emails.
The plaintiffs were not willing to let the Board attorney decide which emails were privileged and which weren't. They wanted the judge to let them have all the emails with the caveat they are all confidential until they are approved to be used.
The Board attorney strongly disagreed. He said this would be a massive abuse of ACP and damage future Redistricting Boards if members can't speak with their attorney in confidence. He's said they've gone through as many as they could, but there are thousands of emails and it takes time they don't have as they do depositions and respond to requests from the judge and the plaintiffs and prepare for trial. Two of the plaintiffs said they got caches of email the morning of the Sunday hearing. But there were still problems and redactions.
Sunday's hearing was about whether the judge should get the emails and review them. It also spilled into what would happen in trial when Board members were asked about how and why they made certain decisions. Anchorage plaintiffs' attorney, Holly Wells, said that when she asked those question in deposition, the Board's attorney, Matt Singer, told them not to answer because of ACP. Wells wanted to know if that was going to happen in trial. Singer responded that the judge will have to decide if they can answer.
A big chunk of Sunrday's pre-trial hearing was devoted to ACP. Board attorney Singer argued for an extreme, no exceptions interpretation - citing a federal case where a man committed suicide not long after talking to an attorney and the US Supreeme Court ruled ACP is still valid after death.
Valdez plaintiffs' attorney Robin Brena, Mat-Su plaintiffs' attorney Stacey Stone, and Anchorage plaintiff's attorney Holly Wells all argued for a much more restricted application, especially when applied to a a public body. Wells has given Open Meetings Act training to state boards and commissions which includes instruction of the limits of the Executive Session for such bodies.
Wells pointed out that with public boards there is even a question of who the client is - the Board, the individual Board member, the State, the Public? With a background in public administration, I had similar thoughts.
The Board's attorney, Singer, called such claims 'laughable'. Wells responded that Singer's claims "were misrepresentations of the law and extremely inaccurate."
The judge tried to referee this as neutrally and diplomatically as he could, not tipping his hand - at least not to this non-lawyer - but he did make sure that Singer had all the emails on a thumb-drive ready for him should he decide he wants to review them. [I shake my head in wonder as consider how the judge is going to find time to review them all. The tradeoff between getting work done, getting sleep, and being awake and sharp in court is vicious in this rushed process.)
My quick review of on-line explanations of ACP suggest that Singer has stretched the concept way beyond what is commonly accepted. His demeanor at the hearing was dismissive, that this was all well trodden legal ground. He laughed and acted as if the plaintiffs' attorneys were just making up legal theory out of thin air.
I did some checking on Attorney-Client Privilege based on that, I'm guessing the Board's attorney Matt Singer's case is not that strong.
Here are some things I found:
Singer argued that ACP was sacred and couldn't be breached.
And this from the same CLE source seems relevant here.
THE ADVICE OF COUNSEL EXCEPTION
The advice of counsel exception is designed to prevent a party in litigation from using the attorney-client privilege as a mechanism "to prejudice his opponent's case or to disclose some selected communications for self- serving purposes"
Attorney-client privilege is a shield not a sword
This Photo by Unknown Author is licensed
A question the judge has to decide on is whether the Board is using Attorney-Client privilege "to prejudice his client's case."
Additional questions I had included:
Does it protect the client or the attorney? From what I can tell online, it clearly protects the client, not the attorney. If that's the case, why did Singer argue that future law firms are going to be wary about working for the Board if their communications are all public. (No one said all, and all parties agreed that confidential information should be redacted.)
What kinds of communications are protected? Another source says things like legal advice is protected, but not business advice. How do you make those distinctions here? The Board is getting legal advice in the sense that the attorney is interpreting laws and court rulings regarding how districts can be drawn. But he's not giving them legal advice to help them personally avoid legal consequences. If he says one choice for drawing district lines is more likely to pass the Supreme Court's scrutiny, is that business advice or legal advice? It would appear that advising the Board on options based on the attorney's legal knowledge would be covered as legal advice, at least according to this decision:
"It is hoped that legal considerations will play a role in governmental policymaking. When a lawyer has been asked to assess compliance with a legal obligation, the lawyer’s recommendation of a policy that complies (or better complies) with the legal obligation– or that advocates and promotes compliance, or oversees implementation of compliance measures–is legal advice. Public officials who craft policies that may directly implicate the legal rights or responsibilities of the public should be encouraged to seek out and receive fully informed legal advice in the course of formulating such policies....26"
But this trial is about whether the Board's Proclamation plan was prepared legally and whether the outcome is legal. None of the Board members is threatened personally with consequences other than having to go back and redo the plan based on the court's instructions.
Singer rejected the Alaska Open Meeting Law as pretty much irrelevant here.
Here's the part about Executive Sessions.
Alaska Public Meetings Law https://codes.findlaw.com/ak/title-44-state-government/ak-st-sect-44-62-310.html
(b) If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body. The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. Subjects may not be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question. Action may not be taken at an executive session, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations.
(c) The following subjects may be considered in an executive session:
(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;
(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3) matters which by law, municipal charter, or ordinance are required to be confidential;
(4) matters involving consideration of government records that by law are not subject to public disclosure.
(d) This section does not apply to [None of these are relevant, but you can go to the link to double check.]
From a guide to the Alaska Open Meetings Law by Gordon Tans, specifically on the question of Attorney-Client Privilege:
6. Attorney-client privilege
Under limited circumstances communications between a governmental body and its attorney qualify for executive session treatment, according to Cool Homes, Inc. v. Fairbanks North Star Borough.92 This exception is based on the attorney-client privilege, but for Open Meetings Act purposes, the privilege is defined narrowly.
This executive session exception is not available for general legal advice or opinion. It applies only when the revelation of the communication will injure the public interest or there is some other recognized purpose in keeping the communication confidential. It is not even enough that the public body is involved in pending litigation.93 Rather, the specific communication must be one that the confidentiality rationale for the privilege deems worthy of protection. The court cited a number of examples of attorney-client communications that might qualify for executive sessions: candid discussions of facts and litigation strategies; a conference on a decision to appeal; a conference about settlement; and advice about how a body and its members might avoid legal liability. A discussion generally about the "ins and outs and status" of litigation, and "what has happened in the year . . . as to court findings" did not qualify for executive session.94
Other opinions
1. For public boards - especially school boards.
"Confidentiality is the cornerstone of the lawyer-client relationship. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.1 Its availability to public sector clients has been widely assumed, but only recently have courts and scholars begun to focus squarely on whether the privilege exists, and the special obligations placed on government lawyers."
2, For split boards - particularly school boards https://cdn-files.nsba.org/s3fs-public/Legal_Ethics_Rubin_Bennett.pdf
Attorney-Client Privilege
"A board attorney’s allegiance to a majority faction also implicates the attorney-client privilege, when the board majority pressures the attorney not to share their communications with the minority. Although the case law remains sparse, the weight of authority holds that public entities do enjoy an attorney-client privilege,13 which may be asserted or waived only by the entity itself through those authorized to do so on its behalf.14 Since the board attorney’s client is certainly not the majority faction but the board as a whole, there is no legal authority that would permit the attorney to deny the board minority access to this information."
In a Sixth Circuit case,15 a city and its former police director were defendants in a § 1983 failure-to-promote case. When the police director asserted qualified immunity, relying on legal advice he had received from the city’s attorneys, the city objected to the attorneys’ depositions on the ground that there was an attorney-client privilege that only the city could waive. The court found that the police director had no standing to waive the city’s attorney-client privilege, even if revealing those communications was essential to his defense.
A Washington federal court rejected a federal agency officer’s claim of attorney-client privilege, in a challenge to an indictment based on the testimony of two agency lawyers who revealed communications he had with them concerning the behavior giving rise to the charges.16 The court rejected the official’s claim of privilege because he was not the “true client,” even though he was communicating with the attorneys with the expectation of confidentiality. The agency was the client and, as such, the only party with standing to invoke or waive the privilege.
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