Who is the Client? The Attorney-Client Relationship with a Government Client

Purpose of Privilege

Encourage Full and Frank Disclosure – Client May Speak Candidly and Fully – Provide Accurate Legal Advice – Better Representation/Advocacy

Attorney-Client Privilege Where legal advice of any kind is sought; From a professional legal adviser in his or her capacity as such; The communications relating to that purpose; Made in confidence; By the client (or to the client). 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2292, at 554 (McNaughton 1961 & Supp. 1991).

Organization As Client Law Well Established that Organization Can be Client: – United States v. Louisville & Nashville R. Co. 236 U.S. 318 (1915) (Railroad not required to produce correspondence with attorneys in response to Interstate Commerce Commission demand) – Hickman v. Taylor, 329 U. S. 495 (1947) (work product) – ER 1.13, Rule 42, Ariz. Supreme Ct.

Organization as Client Scope of Privilege as to Organization – Federal Court: Not as narrow as ‘control group’ of organization Upjohn Co. v. United States, 449 U.S. 383 (1981) – Arizona Courts adopt “functional approach”: functional approach focuses "on the relationship between the communicator and the need for legal services" Communication made between client and lawyer In course of professional employment When Attorney-Client Relationship present For purpose of securing or giving legal advice In Confidence Samaritan Foundation v. Goodfarb, 176 Ariz. 497 (1994)

Can Governmental Agency be Client? Statutory Basis: – Texas: Rule 503, Tex. R. Evid. (Privilege), defines client to include “public or private” organization or entity Substantially same as offered Rule 503, Fed. R. Evid. (1973) – never adopted – Arizona, No comparable provision

Government Agency As Client Arizona Statutory Definition of Privilege: – “A person shall not be examined as a witness in the following cases... (2) An attorney, without consent of the attorney's client, as to any communication made by the client to the attorney, or the attorney's advice given in the course of professional employment.“ A.R.S. § – Because not exclude statements made to government attorney, privilege applies. State Ex Rel. Thomas v. Schneider, 212 Ariz. 292 (App. 2006)

Scope of Privilege re: Government as Client “functional approach”: Samaritan Foundation v. Goodfarb, 176 Ariz. 497 (1994) – BETWEEN CLIENT AND COUNSEL – Generally, agents are not the issue; principal issue is WHO IS CLIENT? – Argued in State Ex Rel. Thomas v. Schneider, 212 Ariz. 292 (App. 2006), that public right to know triumphs (public is client), but rejected: privilege extends to communications between government official and government attorney.

Scope of Privilege re: Government as Client City as Client: In re Grand Jury Subpoena, 886 F2d 135 (6 th Cir. 1989) – Revitalization Project: assist Chrysler is building new production plant – Executive Session to discuss real estate purchase (condemnation) – City Code Required Council to Vote to Initiate Proceedings – City Could invoke privilege (if session properly closed – separate action about whether exec session proper) City Charter/City Code – State Ex Rel. Thomas v. Schneider, 212 Ariz. 292 (App. 2006)

Scope of Privilege re: Government as Client Individual Council Members: Reed v. Baxter, 134 F. 3d 351 (6 th Cir. 1997) – Discrimination Case – Attorney for City on Whether to Promote Black Firefighter over White internal applicants – Issue: Statements Made re Advice during meeting with Two Council Members, Administration, City Attorney Full Council Not Present Council had not Promoted Firefighter; Individual Council Members Investigating Acts of Administration – Council members testify that Attorney disclosed to them that Race a Factor in Promotion

Scope of Privilege re: Government as Client In re Thomas, PDJ (Ariz. 2012) – 247 pages – Issue: disclosure of information by MCBOS – Thomas sues MC Board of Supervisors for declaratory relief that they cannot hire independent counsel under terms of Self-Insurance Trust Fund Declaration of Trust – Issues Press Release “only after holding numerous meetings and discussions with all five supervisors, meeting with MCBOS collectively, sending the Chairman of MCBOS no fewer than five letters making plain the illegality of his proposed actions, and seeking to resolve these matters in various ways.” review of the complaints filed by County Superintendent of Schools Sandra Dowling and County Medical Examiner Philip Keen reveals a disturbing pattern in the allegations. These complaints all note that the Board of Supervisors has sought unlawfully to arrogate powers vested by law in other actions. I am particularly concerned about the Board’s attempt to close the Thomas J. Pappas School and the questionable legal grounds it has cited for doing so.

Scope of Privilege re: Government as Client In re Thomas, cont., Thomas claimed – Public’s “right to know” justified disclosure – Argued “voters” were “ultimate client” – Positions already rejected in State Ex Rel. Thomas v. Schneider, 212 Ariz. 292 (App. 2006)

Scope of Privilege re: Government as Client Compare: – Following 1994 Northridge Earthquake, 600,000 insurance claims for damage – Cal. Dept. Insurance investigates Insurers’ Response and concludes companies violated Insurance Regulations – California Insurance Commissioner opts to settle enforcement actions instead of requiring restitution – Cindy Ossias, Attorney, whistleblower, after discrepancies between recommendations and actual settlements $4 million ad campaign featuring Commissioner Commissioner had “political and personal involvement” with charities receiving donations – State Bar initiated disbarment proceeding but did not proceed

See Also The Government Lawyer’s Condundrum...,” Lester, Jeffrey D, Municipal Lawyer, Vol. 52, No. 5 (September/October 2011). “The Lawyer as Whistleblower...,” Cramton, Roger C., 5 Geo. J. Legal Ethics 291 (1991). “Government Counsel and Their Obligations,” Note, 121 Harv. L. Rev (2008). “A Shakeup for the Duty...,” Shpall, Jessica, 41 Loy. L. A. L. Rev. 701 (2008).