1995-09

QUESTION:

“This letter is written pursuant to our recent telephone
conversation in which I had requested your advice
concerning
conflicts between the Sunshine Law and the obligation of
attorneys to hold inviolate the attorney-client privilege.
Our firm represents a number of public sector clients that
are subject to The Sunshine Law and are also often involved
in legal matters which require confidential discussions
with
the members of our firm.

The only real guidance we have had in the past is an
advisory opinion from the State Bar Association rendered
in May, 1985, until the Supreme Court visited this issue
in Dunn v. Alabama State University Board of Trustees, 628
So.2d 519 (Ala. 1993). In Dunn, the Court appears to carve
out an exception to The Sunshine Law which allows attorneys
for public bodies to meet with their attorney concerning
pending litigation where the public body is actually named
as a party in the lawsuit.

The Dunn decision appears to be at odds with certain
comments to the Alabama Rules of Professional Conduct which
provide that “the confidentiality rule applies not merely
to matters communicated in confidence by the client but
also to all information relating to the representation,
whatever its source.” Ala. R. Prof. Conduct, 1.6, Comment.
The Comment further provides that “Whether another
provision
of law supersedes Rule 1.6 is a matter of interpretation
beyond the scope of these Rules, but a presumption should
exist against such supersession.” These comments appear to
indicate that an attorney has a duty to protect client
confidentiality in regard to all matters and not just those
matters relating to present or pending litigation.

I will appreciate any guidance you can give me regarding
this apparent conflict that exists between the decision in
Dunn and the comments to the Alabama Rules of Professional
Conduct. Does a lawyer have to discuss trial strategy with
a public body client in an open meeting? If the public body
wants to discuss the possibility of filing a lawsuit with
its attorney, does this discussion and relative strengths
and weaknesses of the client’s case have to be discussed
in a public meeting since the lawsuit is not yet filed?
In Dunn, the Court appears to hold that if there is any
discussion of settlement of the case involving a public
body
that such discussion must occur in a public meeting. Does
this mean that if the public body’s attorney gives legal
advice concerning the settlement in a closed meeting does
the meeting have to be opened to the public if one of the
members of the public body asks the attorney a question
relative to what he or she thinks of a proposed settlement?
Assuming the same facts, if a member of the public body has
facts concerning the proposed settlement that should be
brought to the attorney’s attention, should discussion of
these facts occur in a public meeting? As you can see, the
questions which arise in this area are too numerous to
list,
but I believe you get the flavor for the problems we
encounter on a fairly regular basis. Again, I would very
much appreciate any guidance you can give me.”

ANSWER:

The Disciplinary Commission has previously determined,
in RO-85-08 that:

“The provisions of §13A-14-2, Code of
Alabama, 1975, to the contrary notwithstanding,
if an attorney representing a public entity
that comes within the scope of this statute
makes a good faith professional judgment that
a meeting with his client is for the purpose
of imparting legal advice and discussing
strategy concerning pending litigation,
contemplated litigation or other purely
legal matter, the attorney would not be
guilty of violating any of the provisions
of the Code of Professional Responsibility
of the Alabama State Bar by insisting that
the meeting be held in closed or executive
session and if the attorney is of the opinion
that it would be detrimental to the best
interest of his client to allow public
access to the meeting, he would be guilty of
a violation of the Code of Professional
Responsibility should he not insist upon a
closed or executive meeting.”

PREAMBLE:

The determination of this ethical inquiry by the
Disciplinary Commission is limited to the application of
the Rules of Professional Conduct and a lawyer’s
responsibilities to his or her client pursuant to said
rules. The Disciplinary Commission has no authority or
jurisdiction to interpret statutes, nor render opinions
which require an interpretation of law. The Commission
further recognizes that in some instances a lawyer’s
ethical
duty to his or her client may conflict with statutory or
case law. The opinion of the Disciplinary Commission grants
protection to the lawyer only as it relates to the
disciplinary process and enforcement of the Rules of
Professional Conduct.

DISCUSSION:

Rule 1.6(a), Alabama Rules of Professional Conduct,
requires
that a lawyer not reveal information relating to the
representation of the client unless the client consents
after consultation. This prohibition is carried forward in
§12-21-161, Code of Alabama, 1975, which states:

“Testimony of attorney, etc., for or against
client.

No attorney or his clerk shall be competent or
compelled to testify in any court in this state
for or against the client as to any matter or
thing, knowledge of which may have been acquired
from the client, or as to advice or counsel to
the client given by virtue of the relation as
attorney or given by reason of anticipated
employment as attorney unless called to testify
by the client, but shall be competent to testify,
for or against the client, as to any matter or
thing the knowledge of which may have been
acquired in any other manner. (Code 1907, §§3962,
4012; Code 1923, §§7658, 7726; Code 1940, T. 7,
§438.)”

The Comment to Rule 1.6 states that “The confidentiality
rule applies not merely to matters communicated in
confidence by the client, but also to all information
relating to the representation, whatever its source.” This
position is an expansion of that previously adhered to
under
the former Code of Professional Responsibility, which more
restrictively defined “confidence” and “secret” within the
context of confidentiality of information in the
attorney-client relationship.

In representation of a public agency, the attorney should
adhere to the provisions of §13A-14-2, Code of Alabama,
1975, which provides:

“Executive or secret sessions of certain boards.

(a) No executive or secret session shall be
held by any of the following named boards,
commissions or courts of Alabama, namely:
Alabama Public Service Commission; school
commissions of Alabama; board of adjustment,
state or county tax commissions; any county
commission, any city commission or municipal
council; or any other body, board or commission
in the state charged with the duty of disbursing
any funds belonging to the state, county or
municipality, or board, body or commission to
which is delegated any legislative or judicial
function; except, that executive or secret
sessions may be held by any of the above named
boards or commissions when the character or good
name of a woman or man is involved.”

In reviewing the attorney’s responsibility in such a
situation, wherein the ethical requirement of
confidentiality appears to conflict with the statutory
provision on open meetings, the Commission is of the
opinion
that the reasons for the confidentiality rule outweigh the
statutory requirement as to public meetings. To hold
otherwise would abrogate the long-recognized cornerstone of
the attorney-client relationship, that being
confidentiality
of information which is imparted by a client to the
attorney
during the attorney-client relationship.

In Dunn v. Alabama State University Board of Trustees, 628
So.2d 519 (Ala. 1993), the Supreme Court of Alabama adopted
the holding of the Supreme Court of Tennessee in the case
of
Smith County Education Association v. Anderson, 676 S.W.2d
328 (Tenn. 1984). Therein, the Supreme Court of Tennessee
carved out an exception to the Tennessee “Open Meetings
Act”. The Court held that discussions between a public body
and its attorney concerning pending litigation were not
subject to the open meetings act, with the caveat that the
exception applied only to those situations wherein the
public body was a named party in the lawsuit.

A further review of the Supreme Court of Tennessee opinion
recognizes the possibility that an overbroad exception to
the open meetings act could be abused whereby the public
body could meet with its attorney for the ostensible
purpose
of discussing pending litigation and instead conduct public
business in violation of the open meetings act.

In Dunn, supra, the Supreme Court of Alabama determined
that
the “inherent, continuing, and plenary” control of the
Court
over attorneys as officers of the Court could not be
abridged by legislative action. At p.529. Relying upon
Smith
once again, the Supreme Court of Alabama determined that
the
legislature had no authority to enact a law which would
impair an attorney’s ability to fulfill his ethical duties
as an officer of the Court.

The recognition of the supremacy of the attorney-client
relationship is further recognized in the Comment to Rule
1.6:

“In addition to these provisions, a lawyer
may be obligated or permitted by other
provisions of law to give information
about a client. Whether another provision
of law supersedes Rule 1.6 is a matter
of interpretation beyond the scope of
these Rules, but a presumption should
exist against such a supersession.”

The Commission would encourage strict adherence to the
confidentiality provisions of the Alabama Rules of
Professional Conduct. In order for an attorney to
effectively represent a client, the client must feel that
any and all information imparted to the attorney in the
attorney-client relationship will remain inviolate, absent
consent of the client or order of a tribunal of competent
jurisdiction.

With regard to public meetings and attorneys who should
represent public agencies covered by the open meetings
law, said attorneys should insure compliance with the
confidentiality requirement, and recognize the
long-established principle of privileged communications by
the client to the attorney. The attorney must make a
determination as to whether a particular situation
constitutes a true attorney-client discussion and take
whatever steps are necessary to guarantee the
confidentiality of such communications.

The Commission notes that the Supreme Court of Alabama in
the Dunn case, adopting the Tennessee Supreme Court’s
rationale, dealt with the specific issue involving “present
or pending litigation”. The Commission concludes that,
pursuant to Rule 1.6 and the Comment thereto, this
protection would also cover any discussions with the client
which would otherwise be deemed attorney-client
communications, and thereby privileged.

Finally, the Commission would also note that the Dunn
opinion and the statute applied therein concerned a
governmental entity and its responsibilities under the
statute. The Rules of Professional Conduct deal
specifically
with the lawyer’s responsibility to the client which should
not in any way be diminished by statutory or case law
provisions to the contrary. As the province of the
Commission deals only with the ethical responsibilities of
the lawyer to the client, the Commission’s opinion limits
itself to an application of the Rules of Professional
Conduct to the factual scenario posed in this inquiry.

The Disciplinary Commission urges lawyers confronted with
this dilemma to ensure that the client is aware of the
requirements of the statute as well as the lawyer’s ethical
responsibilities under the Rules of Professional Conduct.
The client must be adequately informed in order to make a
decision on what action it will pursue. Disclosure by the
lawyer of his or her ethical obligations under the Rules
to the client allows the client to better understand the
ramifications of the lawyer’s advice and counsel, and
should
involve a discussion of the requirements of the statute as
enunciated in Dunn.

JAM/vf

10/27/95

revised

5/24/96

JAM/vf

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