In July of 2007, the Supreme Judicial Court (SJC) decided the
seminal case of Suffolk Construction Co., Inc. v.
Division of Capital Asset Management.1 In this
decision, the SJC unequivocally affirmed the existence of the
attorney-client privilege protecting communications between public
sector clients, including cities and towns, and their
counsel.
This article will: (1) summarize the Suffolk Construction
decision and how it is important to municipal officials; (2)
address recent developments in court and state agency
interpretations of Suffolk Construction, particularly as
it relates to the Open Meeting Law; and (3) discuss the need for
future decisions by the Office of the Attorney General and the
courts that gives full meaning, vitality and effect to the right of
public bodies to engage to engage in confidential legal
conversations with their counsel, a right intended to be secured by
Suffolk Construction.
I. The Suffolk Construction decision and its impact on
municipal officials
Suffolk Construction involved litigation between
Suffolk Construction Company and the Division of Capital Asset
Management (DCAM), during which Suffolk Construction made two
public records requests to DCAM for documents related to a public
construction project. Although DCAM produced approximately 500,000
pages of documents, it sought to withhold certain documents on the
basis that the attorney-client privilege protected them from
disclosure.
Relying on General Electric Co. v. Department of Environmental
Protection,2 in which the SJC declined to find an
implied exemption in the Public Records Law, codified at G.L. c. 4,
sec. 7 cl. 26 and at G.L. c. 66, sec. 10, for information protected
by the attorney work-product doctrine, Suffolk claimed that DCAM
was required to provide the documents because the attorney-client
privilege also is not an explicit exemption set forth in the Public
Records Law.
In its decision, the SJC noted that the attorney-client privilege
dates at least from the age of Shakespeare and "is the oldest of
the privileges for confidential communications known to the common
law.3 The Court affirmed that the attorney-client
privilege extends to communications between governmental lawyers
and their clients. The Court further held that nothing in the
Public Records Law precludes a public entity from claiming the
attorney-client privilege for communications between government
attorneys and their public clients. In reaching its decision, the
Court held on page 449 as follows:
[T]he attorney-client privilege is a fundamental component of the
administration of justice. Today, its social utility is virtually
unchallenged. Nothing in the language or history of the public
records law, or in our prior decisions, leads us to conclude that
the Legislature intended the public records law to abrogate the
privilege for those subject to the statute.
Suffolk Construction has given considerable solace to
municipalities and public agencies that the advice given by their
attorneys will not be subject to disclosure pursuant to public
records requests. However, the decision left some confusion in the
context of the Open Meeting Law, especially since the law was
rewritten effective July 1, 2010. Namely, Suffolk
Construction brought clarity to the question of whether the
attorney-client privilege extends to written communications between
governmental lawyers and their clients but did not explicitly
address the question of whether the privilege also protects oral
communications between multi-member public bodies and their
counsel.
Despite the fact that Suffolk Construction did not
address oral communications between public clients and their
counsel, it is undisputed that the decision serves as a clarion
call that emphatically reaffirms the existence of the
attorney-client privilege between public bodies and their counsel.
In view of the longstanding and fundamental nature of the
attorney-client privilege, public lawyers should be free to give
candid and objective advice to their clients - whether in
writing, which is already allowed by Suffolk Construction,
or orally at executive sessions - unimpaired by the risk that
such advice will be disclosed to their clients' adversaries.
Without such protection, the social utility and benefits intended
by the attorney-client privilege will not be secured in the public
context in the same manner as it is in the private context.
Dissimilar treatment of the attorney-client privilege in the
private and public contexts would be inimical to the holding of
Suffolk Construction, which intended to secure the same
rights to public clients as those enjoyed by the private
clients.
Support for a properly robust interpretation of Suffolk
Construction also may be found in the distinction the SJC drew
between its holding in Suffolk Construction and its
decision in District Attorney for the Plymouth Dist. v.
Selectmen of Middleborough.4 In that case, the
Court "rejected the contention of the defendant selectmen that they
could shut down an ongoing open meeting in order to hold a closed
session with the town attorney for reasons the selectmen
acknowledged to fall outside the express statutory exemptions in
the open meetings law for closed executive
sessions."5
The SJC noted that even in Middleborough. it had presumed
the existence of the attorney-client privilege for public officials
and further instructed "[t]hat the Legislature intended certain
discussions between public officials and their counsel to take
place in the open does not imply that no communication between the
public counsel and the public client can ever be confidential."
Id. The Suffolk Construction Court's distinction
of Middleborough calls into question the continued vitality of that
decision, particularly where it is well-settled in the private
setting that the attorney-client privilege protects oral
communications between clients and their attorneys.6
II. Recent court and agency interpretations of Suffolk
Construction
A. Court interpretations
In April of 2011, the SJC relied on its holding in Suffolk
Construction in determining that documents ordered to be kept
confidential under a judicial protective order are not subject to
disclosure under the Public Records Law.7 In Fremont
Investment, the Court held that the Public Records Law
does not override a judicial order protecting from disclosure
certain documents the Office of the Attorney General obtained from
an investment and loan company in the course of an enforcement
action, and the Court further refused to allow a prospective
intervenor to obtain such documents from the attorney general
through a public records request.8
In so holding, the Court reiterated the Suffolk
Construction Court's guidance that where a statute, such as
the Public Records Law, is "silen[t] on a matter of common law of
fundamental and long-standing importance to the administration of
justice," it does not abrogate that fundamental principle
of common law.9 The Court found that this principle
applies equally to the attorney-client privilege as well as
judicial protective orders, which operate to protect documents from
disclosure notwithstanding the lack of an explicit exemption in the
Public Records Law.
This recent decision is a resounding affirmation of the concept
that a fundamental right under the common law (such as the
attorney-client privilege) remains intact where the Legislature
does not specifically address the matter in related legislation.
Since the SJC has now found a second common law basis for exemption
from the Public Records Law despite the lack of explicit statutory
exception, one might expect that the same tenet would extend to the
application of common law exceptions to the new Open Meeting Law.
The common law doctrine makes no distinction between written and
oral communications for purposes of obtaining legal advice; both
are protected.
However, we have yet to see whether the Court's holding in
Middleborough will be wholly overturned in light of
Suffolk Construction, and the attorney general
unfortunately has failed to fully protect the attorney-client
privilege as it relates to meetings of public bodies.
B. Attorney general interpretations
Unfortunately, the Office of the Attorney General, the agency
charged with interpretation and enforcement of the new Open Meeting
Law codified in G.L. c. 30A, §§18-25, has taken an improperly
narrow view of the applicability of the attorney-client privilege
and has held that it does not serve as a basis for entering
executive session unless the meeting with counsel relates to one of
the exemptions specifically enumerated in the Open Meeting
Law.
For instance, in a Dec. 17, 2010, decision concerning an alleged
violation of the Open Meeting Law, the attorney general held that
such a violation did occur when the offending public body received
legal advice from counsel in executive session to the extent that
such advice was not related to a specifically enumerated
exemption.10 Citing the Middleborough case, the
attorney general stated that "[w]hile a public body may meet in
executive session to communicate with counsel, it may do so only
for one of the enumerated purposes for executive session" and that
such a meeting with counsel "does not allow the Board free reign to
discuss substantive and important issues appropriately left for
discussion during open session."
Additionally, the Attorney General's Open Meeting Law Guide,
updated as of March 24, 2011, advises that "a public body's
discussions with its counsel do not automatically fall under [the
litigation exemption] or any other Purpose for holding an executive
session."
III. Need for judicial interpretation and
clarification
The attorney general's stance is contrary to the SJC's direction
in Suffolk Construction regarding the status and continued
vitality of the common law attorney-client privilege. The SJC in
Suffolk Construction clearly indicated that a statute that
is silent as to a fundamental common law right such as the
attorney-client privilege does not automatically override the
privilege. Access to municipal counsel in a protected context
encourages complete and honest discussion and therefore serves the
public interest and furthers interests of social
utility.11
While not every communication with legal counsel is protected,
communications concerning legal advice should be entitled to the
privilege. The Suffolk Construction Court acknowledged the
ability of government officials and their counsel to distinguish
between privileged and unprivileged communications.
The attorney general appears to have less confidence in the
ability of municipal officials to limit executive session
discussions with counsel to matters entitled to the privilege, as
the 2010 enforcement decision may be read to prohibit any private
discussions between a quorum of a public body and its attorney
unless the discussion relates to topic that is independently
appropriate for executive session, such as pending litigation or
real estate negotiations. This view poses challenges for public
bodies in reconciling the Open Meeting Law with the Public Records
Law, especially in light of the Open Meeting Law's express
recognition of the attorney-client privilege as it relates to the
written records of meetings of public bodies.
Moreover, the new Open Meeting Law is not entirely silent on the
topic of the attorney-client privilege and, in fact, contains two
explicit provisions recognizing the privilege, both found in G.L.
c. 30A, §22(f). Section 22(f), which provides in part as
follows:
When the purpose for which a valid executive session was held has
been served, the minutes, preparatory materials and documents and
exhibits of the session shall be disclosed unless the
attorney-client privilege or 1 or more exemptions under [the Public
Records Law] apply to withhold these records, or any
portion thereof, from disclosure. For purposes of this subsection,
if any executive session is held pursuant to clause (2) or (3) of
subsections (a) of section 21, then the minutes, preparatory
materials and documents and exhibits used at the session may be
withheld from disclosure to the public in their entirety, unless
and until such time as a litigating, negotiating or bargaining
position is no longer jeopardized by such disclosure, at which time
they shall be disclosed unless the attorney-client
privilege or 1 or more of the exemptions under [the Public Records
Law] apply to withhold these records, or any portion
thereof, from disclosure (emphasis supplied).
In two separate instances in Section 22(f), the Legislature
recognized the attorney-client privilege as a separate and
independent basis for protecting from disclosure the minutes,
preparatory materials, documents and exhibits of an executive
session even after the purpose of the executive session has been
served, and even if one or more explicit statutory exemptions do
not apply.
Accordingly, it stands to reason that if the attorney-client
privilege allows a public body to withhold the minutes of an
executive session from disclosure, the discussions summarized in
those minutes (namely, receipt of oral advice from counsel even if
not related to a specific statutory exemption) must have been
entitled to the privilege in the first instance. The statutory
language contained in Section 22(f) broadly recognizes the
privilege as a basis for withholding executive session minutes and
does not impose the additional requirement that privileged
discussions must be related to an enumerated purpose of executive
session in order to be withheld.
Generally accepted principles of statutory construction require
the various provisions of a statute to be harmonized, recognizing
that the Legislature would not intend one provision of a statute to
contradict another.12 Thus, the remainder of the new
Open Meeting Law must be harmonized with the two specific
provisions containing affirmative references to the attorney-client
privilege. The attorney general's truncated and unduly narrow
interpretation of the privilege creates confusion and conflicts
with both the statutory language as well as the SJC's guidance in
Suffolk Construction.
Conclusion
We call upon the legislators, the courts, and the attorney
general to properly implement the robust protections intended for
the attorney-client privilege, as so particularly described in
Suffolk Construction, for all public agencies and
political subdivisions, including the 351 cities and towns within
the Commonwealth of Massachusetts.
The attorney-client privilege is a fundamental common law right of
the utmost importance to municipal officials, who should be
encouraged to discuss legal matters candidly with their counsel
without fear of disclosure to opposing parties. Recognition of the
attorney-client privilege in the context of the Open Meeting Law
would serve the public interest in promoting public body access to
legal advice, and not creating two separate classes of legal
clients, one in the private sector entitled to confidential legal
advice and one in the public sector stripped of that right.
Christopher J. Petrini is the founding principal of
Petrini & Associates PC, a municipal law firm in Framingham
that serves as town counsel to Framingham, Medway, West Brookfield
and Sherborn, and special counsel to numerous other municipalities.
Petrini is a past president of the City Solicitors and Town Counsel
Association.
Heather W. Kingsbury is an associate with Petrini & Associates
PC focusing on municipal law. She is vice president of the City
Solicitors and Town Counsel Association.
1449 Mass. 444 (2007).
2429 Mass. 798 (1999).
3Suffolk Construction Co. v. Division of Capital Asset
Management, 449 Mass. 444, 448-49 (2007), citing Upjohn
Co. v. United States, 449 U.S. 383, 389 (1991).
4395 Mass. 629 (1985).
5Suffolk Construction, 449 Mass. at 459.
6See, e.g., Neitlich v. Peterson, 15 Mass.
App. Ct. 622, 624 (1983).
7Commonwealth v. Fremont Investment & Loan, 459
Mass. 209 (2011).
8Id.
9Id. at 216.
10Attorney General, OML 2010-6.
11Suffolk Construction, 449 Mass. at
460.
12In re Birchall, 454 Mass. 837, 849 (2009).