Restoring the attorney-client and work product privileges for government entities.

• Author: Radson, Marion J.

A little more than 20 years ago, government entities in Florida lost the ability to invoke the attorney-client privilege in almost all meetings between the governing body and its government attorney. (1) Similarly, a little more than 25 years ago, government entities in Florida and government attorneys lost almost all claims of work product privilege under the public records law. (2) State legislation has attempted to partially restore these privileges, but as discussed in this article, the legislation is inadequate. These topics are currently being discussed in two separate forums.

In January 2007, Governor Crist created the Commission on Open Government. The commission is directed to review, evaluate, and make recommendations regarding Florida's public records and open meeting laws. The commission should make its recommendations in late 2008. This author and the Florida Association of Counties have requested the commission examine the attorney-client and work product privileges in the public sector. As of this writing, the commission has not taken any action on this request.

The immediate past president of The Florida Bar, Henry M. Coxe III created, and the Board of Governors approved, the appointment of the Attorney-Client Task Force. The task force is directed to examine the privilege and its exceptions, identify issues that impact the privilege, and recommend resolutions to those issues. The task force initially examined policies adopted by some federal agencies that infringed on the attorney-client privilege. The task force created subcommittees to examine the status of these privileges and recommend possible revisions to the law or rules. The task force, at the request of this author, has recently agreed to look at the attorney-client and work product privileges in the public sector and recommend revisions. As of the writing of this article, an additional subcommittee is reviewing the status of the privilege and may recommend revisions to the law.

This article will discuss the importance of the attorney-client and work product privileges for government entities, identify the problems with current laws, and recommend specific revisions to restore these well recognized privileges.

Importance of the Attorney-Client Privilege for Government

In a society that honors the rule of law, the full disclosure of all relevant facts to legal counsel, no matter how embarrassing or damaging these facts might be, is essential to enable the attorney to render sound legal advice.

In the private sector, clients seek such legal counsel on a regular basis with the confidence and knowledge that these private communications will be held inviolate under the time-honored attorney-client privilege. (3)

For government, however, elected and appointed officers and employees do not share the attorney-client privilege to the same extent. Not only is the privilege not co-extensive, there is also confusion and uncertainty about the very existence of the privilege in the public sector in Florida. This uncertainty hampers full disclosure and discussion between the attorney who represents the government and the government as client. As one U.S. Supreme Court Justice stated, an uncertain privilege is a little better than no privilege at all. (4)

The art of governing in the modern world is complex and challenging even to the most seasoned of government officers and employees. They need to regularly consult with their government attorneys to comply with the substantial and procedural laws to avoid trampling on the rights of private parties and to avoid violating the laws they are sworn to uphold. Public officers and employees should be encouraged to be completely candid with their attorneys without fear or inhibition that their communications will be disclosed.

The attorney-client privilege actually promotes the administration of justice of the government. Government attorneys, like all attorneys, are charged with the duty of upholding the law and advising their clients to follow the law. (6) Government lawyers can neither further the administration of justice, nor prevent needless litigation, nor ensure...