INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, 2008 ANNUAL CONFERENCE, LAS VEGAS, NEVADA

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1 INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, 2008 ANNUAL CONFERENCE, LAS VEGAS, NEVADA ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE IN THE PUBLIC SECTOR By: Marion J. Radson City Attorney City of Gainesville, Florida September 17, International Municipal Lawyers Association. This is an informational and educational report distributed by the International Municipal Lawyers Association during its 2008 Annual Conference, held September 14-17, 2008 in Las Vegas, Nevada. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.

2 ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE IN THE PUBLIC SECTOR [I]f the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. Upjohn Co. v. United States, 449 U.S. 383, 393 (1981). I. ATTORNEY-CLIENT PRIVILEGE. A. The principle of confidentiality is fundamental in the client-lawyer relationship. The principle is given effect in two related bodies of law: 1. The attorney-client privilege which includes the work product doctrine is codified in the rules of procedure and the laws of evidence. See Fed. R. Civ. P. 26 (b)(3) and proposed Fed. R. Evid. 502 (see attachment C); see particular laws for each state. 2. Rules of Professional Conduct. (Note: References in this paper are made to the ABA s Model Rules. For specific application, please consult with the rules of your state.) B. Rule 1.6 "Confidentiality of Information" requires lawyers to maintain the confidences of the client. RULE 1.6. CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). C. Rule 1.13 Organization as Client expressly applies to government lawyers who represent the government as an organization. The Comment to the Rule infers that it is appropriate for a government attorney to disclose confidential information regarding wrongful acts of government officials. This Comment can place the government attorney in an ethical dilemma. Excerpt from Comment to Rule 1.13: Government agency The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these

3 Rules. See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. This Rule does not limit that authority. D. The Attorney-Client Privilege for Government can be limited by a state s open meetings law. 1. Florida s Sunshine (Open Meetings) Law In Neu v. Miami Herald Publishing Co., 462 So.2d 821 (Fla. 1985), the Florida Supreme Court held that the Sunshine Law applied to meetings between a city council and the city attorney. The Court rejected any claim of attorney-client privilege despite the absence of any express statutory waiver of the privilege. 2. Other states open meetings laws. Courts in some other states have recognized an independent basis for the privilege, often based on the strong policy considerations that apply to private clients. See, e.g., Dunn v. Ala. State Univ. Bd. of Trustees, 628 So.2d 519 (Ala. 1993); Cool Homes, Inc. v. Fairbanks N. Star Borough, 860 P.2d 1248 (Alaska 1993); Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 69 Cal. Rptr. 480 (Ct. App. 1968); Tausz v. Clarion-Goldfield Cmty. Sch. Dist., 569 N.W. 2d 125 (Iowa 1997); Okla. Ass n of Mun. Attorneys v. State, 577 P.2d 1310 (Okla. 1978); Peters v. County Comm n of Wood County, 519 S.E.2d 179 (W. Va. 1999). II. THE WORK PRODUCT DOCTRINE. A. Basis. The work product privilege was judicially created by the U.S. Supreme Court in the context of the Federal Rules of Civil Procedure. Hickman v. Taylor, 329 U.S. 495, (1947). B. Definition of "Work Product". 1. Work product is incapable of a concise definition. The Federal Rules of Civil Procedure describe work product as "documents and tangible things prepared in anticipation of

4 litigation or for trial by or for another party or its representative." Fed. R. Civ. P. 26 (b)(3). 2. For documents to be protected as work product, they must be prepared in anticipation of litigation or for trial. Fed. R. Civ. P. 26(b)(3); Fla. R. Civ. P (b)(3). The document must contain or reflect "the attorney's legal theories, research, and certain factual material gathered in preparation for proper representation of the client. In re Grand Jury Proceedings, 604 F.2d 798, 801 (3d Cir. 1979). 3. Work product can be of two types: (a) Fact Work Product: factual information that relates to a case and is gathered in anticipation of litigation. So. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla. 1994); see Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985). (b) Opinion work product: information that contains the "attorneys' mental impressions, conclusions, opinions, and theories." Deason, 632 So.2d at Opinion work product is given greater protection by the courts. Fed. R. Civ. P. 26(b)(3); see In re Murphy, 560 F.2d 326, 334 (8 th Cir. 1977) (noting that Rule 26(b)(3) of the Federal Rules of Civil Procedure provides special protection for work product containing opinions.) C. Government Attorneys and Work Product in Federal Court. 1. Under the Federal Rules of Civil Procedure, the work product doctrine applies to: (a) Work produced by government attorneys in anticipation of litigation; and (b) Material produced by non-lawyer staff prepared at the discretion of the government attorney. 2. To obtain discovery of documents in litigation, a party must show: (a) Party seeking discovery has substantial need of the materials in preparation for trial; and (b) The party is unable to otherwise obtain the documents without undue hardship. Fed. R. Civ. P. 26(b)(3) 3. The federal courts are required to protect against the disclosure of the attorney s mental impressions, conclusions, opinions or legal theories concerning the litigation. 4. Types of items that are protected from disclosure: (a) interviews (b) statements (c) memoranda (d) correspondence (e) briefs See Hickman v. Taylor, 329 U.S. 495 (1947). D. Government Attorneys and Work Product Under Statutory Law.

5 Each state may have adopted laws that address the exemption of work product under the applicable public records law. 1. Limited Work Product for State and Local Government Attorneys in Florida. (a) In Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla. 1979), the Florida Supreme Court found that the legislature intended to exempt only those public records made exempt and confidential by statute. (b) A temporary exemption of opinion work product is codified in , Fla. Stat. Elements of the exemption: (1) a public record (2) prepared by an attorney (employed or retained) or at the attorney s express direction (3) reflects a mental impression, conclusion, litigation strategy or legal theory (4) prepared exclusively for (imminent or actual) civil or criminal litigation or adversarial administrative proceedings OR (5) exemption ends at the conclusion of the litigation or administrative proceeding. 2. Work Product for State and Local Government Attorneys in Massachusetts. (a) In Suffolk Construction Co., v. Division of Capital Asset Management, 870 N.E. 2d 33 (Mass. 2007), the Massachusetts Supreme Court held that the public records law did not preclude the protection of the attorney-client privilege from records made or received by the government. (b) The public records law of Massachusetts does not reference the attorney-client privilege or work product exemption. The Court stated that the law does not abrogate the privilege or exemption. See 950 Code Mass. Regs U.S. Government Attorney Work Product. Some protections are afforded the federal government attorney s work product under the Federal Freedom of Information Act. The exemption of a federal government attorney s work product permits the government attorney to comply with the mandate of Rule 1.6. Exemption 5 of the Federal counterpart of the Freedom of Information Act exempts "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." 5 U.S.C. 552(b)(5) (2008). Citing the U.S. Senate Report adopting this exemption, the U.S. Supreme Court stated that "Exemption 5" would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). E. Related Court Decisions. 1. Work Product of Lobbyists: Attorneys who act as lobbyists are not legal advisers. Additionally, the records of these attorneys are not work product because they are pre-existing documents that were

6 gathered in anticipation of litigation. In re Grand Jury Subpoenas, 179 F.Supp.2d 270, 285 (S.D.N.Y. 2001) (S.D.N.Y., September 12, 2002). 2. Sharing litigation work product with public auditors: In Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113, 115 (S.D.N.Y. 2002), the Court found that the protection had been waived when a company shared the results of an internal investigation with external auditors who were reviewing the company s litigation exposures. But in Merrill Lynch & Co., v. Allegheny Energy, Inc., 229 F.R.D. 441,446 (S.D.N.Y. 2004), the Court held that the company had not waived the work product protection when the rewards of an internal investigation of a trader s theft was provided to external auditors who were reviewing the company s financial statements. 3. I.R.S. Tax Investigations. In two pending cases, U.S. v. Textron, Inc., Case No and Regions Financial Corp. v. U.S., No. 2: 06-CV (N.D. Ala. 2008), the federal trial judges relied on the work product doctrine to reject the Internal Revenue Service s demand for the tax accrual work papers. These papers are prepared with the assistance of in-house and external counsel and relied upon by independent auditors to determine the accuracy of financial statements. The papers often contain litigation risks. The two key issues in these cases are whether the workpapers are protected by the work product doctrine and, if they are, whether the protection is waived when the company shares the workpapers with its auditors. III. THE FLORIDA BAR S ATTORNEY-CLIENT TASK FORCE. A. In response to the adoption of policies by the U.S. Department of Justice and other federal governmental agencies, the Florida Bar created a Task Force to identify issues currently impacting the privilege and to recommend resolutions, if warranted. B. The full Interim Report of the Task Force is available at 3b701837f a00b08e9 Open Document. C. The Task Force also created a Public Sector Subcommittee to study the erosion of the attorney-client privilege and work product exemptions in the public sector in Florida. The Report of the Task Force is attached. The Task Force has invited the Sections and Committees of the Bar to comment on proposed revisions to the Sunshine Law and Public Records Law that seek to strengthen the privilege in the public sector. A Final Report of the Task Force will be submitted to the Florida Board of Bar Governors later this year or early next year. ATTACHMENT A IV. PENDING CONGRESSIONAL BILLS ADDRESSING THE ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE.

7 A. The Attorney-Client Privilege Protection Act of 2006 House Bill 3013 Approved November 13, 2007 by the House of Representatives. This bill seeks to protect the attorney-client relationship by: 1. Prohibiting federal lawyers and investigators from: requesting that an organization waive its attorney-client privilege or work product doctrine; and conditioning any charging decision or cooperation credit on waiver or non-waiver of privilege, the payment of an employee s legal fees, the continued employment of a person under investigation, or the signing of a joint defense agreement. 2. Preserving the organizations ability to offer internal investigation materials to federal prosecutors, but only if such an offer is voluntary and unsolicited by the prosecutors. 3. Allowing prosecutors to seek materials that they reasonably believe are not privileged. ATTACHMENT B B. House Bill 6610 (Jackson Lee), amends the Federal Rules of Evidence to address the waiver of the attorney-client privilege and work product doctrine. This bill in the early stages of the legislative process seeks to protect from disclosure any unintentional or inadvertent communication in a federal proceeding or made to a federal office or agency that is otherwise protected under the attorney-client privilege or work product doctrine. ATTACHMENT C V. LAW REVIEW ARTICLES ON THE ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE IN THE PUBLIC SECTOR. A. Marion J. Radson and Elizabeth A. Waratuke, "The Attorney-Client and Work Product Privileges of Government Entities", 30 Stetson L. Rev. 799 (2001) B. Patricia Salkin and Allyson Phillips, Eliminating Political Maneuvering: A Light in the Tunnel for the Government Attorney-Client Privilege, 39 Ind. L. Rev. 561 (2006) C. Nancy Leong, Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys, 20 Geo. J. Legal Ethics 163 (2007) VI. JOURNAL ARTICLES ON THE ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE IN THE PUBLIC SECTOR A. Radson, Restoring the Attorney-Client and Work Product Privileges for Government Entities 82 Jan. Fla. B.J. 34 (2008)

8 B. Green and Garrick, Protecting Attorney-Client Privilege in the Public Sector, 48 Sept./Oct. Mun. Lwyr. 6 (2007) C. Hunter, Transparency in Local Government Will it Result in the Demise of the Attorney- Client Privilege?, 48 Sept./Oct. Mun. Lwyr. 10 (2007) VII. CONCLUSION. The strengthening of the attorney-client privilege and work product doctrine are critically important to the practice of law in both the private and public sectors. Accordingly, the value of these time-honored privileges should be recognized and uniformly applied to enhance the practice of law.