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It's Time to Amend the Public Records Act
One of the more controversial Washington Supreme Court decisions of the past five years is the 2004 Hangartner v. City of Seattle ruling. There, the Court, among other rulings, determined that the Washington Public Records Act (“PRA”) exempted attorney-client communications between government entities and its lawyers (i.e. state, county, city attorneys) from public disclosure. The Court examined the words of the PRA and concluded that the exemption for documents protected from disclosure by “other statutes” included the statutory attorney-client privilege.
The decision caused an immediate outcry with critics of the decision arguing that (1) the decision circumvents the purpose of the PRA to require broad public disclosure of government documents and (2) government lawyers represent the people, those who pay their salaries, and the people have a right to documents from their attorneys. Despite the outcry, the State legislature has declined efforts to amend the PRA to require disclosure of government attorney-client documents.
The controversy will not go away. For example, the Seattle Times almost single-mindedly bases judicial and elected public attorney endorsements on PRA issues including the attorney-client issue. More telling, recently-elected (by a dominating 64 percent) Seattle City Attorney Pete Holmes ran in part on the issues of “transparency and accountability” arguing that he will bring a “real commitment to Open Government, honoring the public’s right to know” and that “the current interpretation of the attorney-client privilege in the City Attorney's Office has closed the door of public disclosure in Seattle.” He asserted that “as your city attorney, I will remember that you, the citizens of Seattle, are my most important clients. . . .” His opponent, incumbent Tom Carr, was the Seattle city attorney in the Hangartner decision.
The attorney-client privilege dates back to at least the 16th Century English Common law and finds in roots in the Fourth (privacy), Fifth (due process) and Fourteenth Amendment (privacy, everything). But the scope of the privilege is not absolute. For example, the privilege does not protect against the obligation of an attorney to disclose the client’s potential commission of a crime or fraud. In Washington, the scope of the privilege exists as a matter of state statute and rules of professional responsibility applicable to lawyers. Thus, the State legislature (or the people through the initiative process) could choose to limit the privilege as applied to public attorneys or amend the PRA. The question is: Should the law be changed. Moreover, what can and should Mr. Holmes do as city attorney in regard to attorney-client communications as part of his effort to make the city attorney’s office more transparent and accountable.
The purpose of the privilege is to promote candid and open discussions between clients and their attorneys which is deemed necessary to allow the attorney to give the best legal advice to his or her client. The client knows that it can share facts and concerns with its attorney without fear that the communication will be disclosed to the client’s detriment. And the privilege allows the attorneys to elicit all facts that are necessary for her or him to render full legal advice. The privilege is for the benefit of the client and therefore the client owns the right to assert or waive the privilege.
To argue that government entities simply are not entitled to claim an attorney-client privilege seems contrary both to constitutional and legal ethical norms and to common sense. The State, cities and counties and their taxpayers deserve the best legal advice just as do individuals and corporations. And often disclosure of attorney-client discussions about legal controversies will harm government entities and their taxpayers such as disclosing communications about legal strategies to potential litigants against the government entity.
On the other hand, government accountability is undisputedly advanced by full disclosure of government activities. Government officials should not be able to hide improper, incompetent, or embarrassing actions behind the guise of the attorney-client privilege. The public interest in government accountability distinguishes the application of the attorney-client in the context of government entities.
Balancing these interests suggests that government entities should be entitled to rely on the attorney-client privilege to withhold disclosure of certain documents pursuant to the PRA but that the scope of the privilege should be more limited than as applied to private individuals or corporations. Currently, neither the PRA nor the statutory attorney client privilege makes such a distinction. That suggests a need for a legislative solution. A guidepost to that legislative solution may already exist in the State’s Open Public Meetings Act (‘OPMA”).
The OPMA generally requires that government meetings be open to the public. The OPMA provides for executive sessions that are closed to the public in certain circumstances. Executive sessions are permitted for discussions with legal counsel relating to agency enforcement actions, to agency litigation or potential litigation, and to litigation or legal risks of a proposed action or current practice when public discussion of the litigation or legal risks are likely to result in an adverse legal or financial consequence to the agency. Adding a provision of the PRA that permits withholding of government attorney-client documents only in circumstances that mirror the OPMA, i.e. where disclosure is likely to result in an adverse legal or financial consequence, seems to strike the right balance of public interests by protecting certain governmental attorney-client communications but not all.
As to Mr. Holmes, he should be careful about respecting that his client often will be the executive (mayor’s office) or legislative branches of city government and therefore he does not have the unilateral right to waive the attorney-client privilege. He should push for leguslative clarification of the scope of the privilege instead.
Editor's Note: Law Nerd and his/her law firm represent individuals seeking public records and government entities who have withheld public records in public records act cases including Hangartner.
The decision caused an immediate outcry with critics of the decision arguing that (1) the decision circumvents the purpose of the PRA to require broad public disclosure of government documents and (2) government lawyers represent the people, those who pay their salaries, and the people have a right to documents from their attorneys. Despite the outcry, the State legislature has declined efforts to amend the PRA to require disclosure of government attorney-client documents.
The controversy will not go away. For example, the Seattle Times almost single-mindedly bases judicial and elected public attorney endorsements on PRA issues including the attorney-client issue. More telling, recently-elected (by a dominating 64 percent) Seattle City Attorney Pete Holmes ran in part on the issues of “transparency and accountability” arguing that he will bring a “real commitment to Open Government, honoring the public’s right to know” and that “the current interpretation of the attorney-client privilege in the City Attorney's Office has closed the door of public disclosure in Seattle.” He asserted that “as your city attorney, I will remember that you, the citizens of Seattle, are my most important clients. . . .” His opponent, incumbent Tom Carr, was the Seattle city attorney in the Hangartner decision.
The attorney-client privilege dates back to at least the 16th Century English Common law and finds in roots in the Fourth (privacy), Fifth (due process) and Fourteenth Amendment (privacy, everything). But the scope of the privilege is not absolute. For example, the privilege does not protect against the obligation of an attorney to disclose the client’s potential commission of a crime or fraud. In Washington, the scope of the privilege exists as a matter of state statute and rules of professional responsibility applicable to lawyers. Thus, the State legislature (or the people through the initiative process) could choose to limit the privilege as applied to public attorneys or amend the PRA. The question is: Should the law be changed. Moreover, what can and should Mr. Holmes do as city attorney in regard to attorney-client communications as part of his effort to make the city attorney’s office more transparent and accountable.
The purpose of the privilege is to promote candid and open discussions between clients and their attorneys which is deemed necessary to allow the attorney to give the best legal advice to his or her client. The client knows that it can share facts and concerns with its attorney without fear that the communication will be disclosed to the client’s detriment. And the privilege allows the attorneys to elicit all facts that are necessary for her or him to render full legal advice. The privilege is for the benefit of the client and therefore the client owns the right to assert or waive the privilege.
To argue that government entities simply are not entitled to claim an attorney-client privilege seems contrary both to constitutional and legal ethical norms and to common sense. The State, cities and counties and their taxpayers deserve the best legal advice just as do individuals and corporations. And often disclosure of attorney-client discussions about legal controversies will harm government entities and their taxpayers such as disclosing communications about legal strategies to potential litigants against the government entity.
On the other hand, government accountability is undisputedly advanced by full disclosure of government activities. Government officials should not be able to hide improper, incompetent, or embarrassing actions behind the guise of the attorney-client privilege. The public interest in government accountability distinguishes the application of the attorney-client in the context of government entities.
Balancing these interests suggests that government entities should be entitled to rely on the attorney-client privilege to withhold disclosure of certain documents pursuant to the PRA but that the scope of the privilege should be more limited than as applied to private individuals or corporations. Currently, neither the PRA nor the statutory attorney client privilege makes such a distinction. That suggests a need for a legislative solution. A guidepost to that legislative solution may already exist in the State’s Open Public Meetings Act (‘OPMA”).
The OPMA generally requires that government meetings be open to the public. The OPMA provides for executive sessions that are closed to the public in certain circumstances. Executive sessions are permitted for discussions with legal counsel relating to agency enforcement actions, to agency litigation or potential litigation, and to litigation or legal risks of a proposed action or current practice when public discussion of the litigation or legal risks are likely to result in an adverse legal or financial consequence to the agency. Adding a provision of the PRA that permits withholding of government attorney-client documents only in circumstances that mirror the OPMA, i.e. where disclosure is likely to result in an adverse legal or financial consequence, seems to strike the right balance of public interests by protecting certain governmental attorney-client communications but not all.
As to Mr. Holmes, he should be careful about respecting that his client often will be the executive (mayor’s office) or legislative branches of city government and therefore he does not have the unilateral right to waive the attorney-client privilege. He should push for leguslative clarification of the scope of the privilege instead.
Editor's Note: Law Nerd and his/her law firm represent individuals seeking public records and government entities who have withheld public records in public records act cases including Hangartner.
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