Thp Attorney General of Texas
JIM MAlTOX December 19. 1983
Attorney General!,
Supreme Court BUM&~ Honorable W. C. McDonald Opinion No.JM-100
P. 0. BOX 1254a Pecos County Attorney
Au.siIn, TX. 7571% 2549 Courthouse Re: Construction of section 2(e)
512/475-2501
Telex 9101874-1357
Fort -Stockton.Texas 79735 of the Open Meetings Act, article
T.&lecopler 512l475.0266 6252-17. V.T.C.S.
Dear Mr. &Donald:
714 Jackson, Suite 700
Dallas, TX. 752024506
214i742-8944 ,You have requested our opinion regarding the proper construction
of ,section.2(e).of article 6252-17. V.T.C.S., the Open Meetings Act.
That section provides:
4824 Alberta Ave.. Su!l. 160
El Paw, TX. 799052793 Private consultations between a governmental
91~3484
r body ,and its attorney are not permitted except in
those instances, in which the body seeks the
..A01Texas. Suite 700. attorney's advice with respect to pending or
H~~slbn. TX. 77002-3111 contemplated litigation, settlemeot~ offers, and
71Y2295555 matters where the duty of a public body's counsel
to his clients, pursuant to the Code of
808 Broadway, Suite 312
Professional Responsibility .of the State Bar of
Lubbock. TX. 794Olti79 Texas, clearly conflicts with this Act.
KWi’47-5238
Clearly.: a ~governmental body may meet imexecutive session with its
4309 N. Tenth. Sulte 8,
.attomey in any .instancePn which it.seeks the attorney's advice "with
McAllen. TX. 75501-1585 ~ respect-:'to-peadiag,or contemplated litigation [or] settlement offers."
51m.4547 ,. C’.,~..: ‘~ :We ~miet~detemine; however , the scope of the:following:
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MY Matters where the ~duty of a'public body's~counsel
200 MaIn Plaza: suite 4&l .:, ,.c
,xo:~_shis
San Antonlo, T~:,7~?707
client, pursuant to -the Code of
5121225.4191 ~‘:-. i:-?Profeaaional.Responsibility,of ~.the,State Bar of
+,>+I : .lT&aa, clearly conflicts.with this Act.'
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An Equal Opportunlty($;,,‘~ ‘,.$ ~~+:-Canon'4of:.chelTexasCode of-~Professional~:Responsibility. article
Affirmative Actlon Employer 320a-1, V.T.C.S.. Title 14. Appendix A. atticle 12, section 8.
provides that “[al lawyer should preserve the confidences and secrets
of a client." Frofeasor Wigmore's definition of the attorney-client
privilege is perhaps the most frequently quoted:
I.'~-I.~.t (11.:where ,legal advice of any kind is sought
P ‘. ‘.2i ;.'(2)
~~~froma: professional legal adviser in his
capacity as such (3) the conuuunicationsrelating
p. 421
Honorable W. C. McDonald - Page 2 (JM-100)
to that purpose, (4) made in confidence (5) by
the client, (6) are at [the client's] instance
permanently protected (7) from disclosure by
himself or by the legal adviser, (8) except the
protection be waived.
8 Wigmore, hridence 12292. at 554. The classic case law definition of
the privilege is that articulated by the court in United States v.
United Shoe Machinery Corp.. 89 F.Supp. 357. 358-59 (D. Mass. 1950):
The privilege applies only if (1) tbe asserted
holder of the privilege is or sought to become a
client; (2) the person to whom the communication
was made (a) is a member of the bar of a court, or
his subordinate and (b) in connection with this
communication is acting as a lawyer; (3) the
communication relates to a fact of which the
attorney was informed (a) by his client (b)
without the presence of strangers (c) for the
purpose of securing primarily either (1) an.
opinion on law or (ii) legal services or (ill)
assistance in some legal proceeding, and not (d)
?
for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not
waived by the client.
This definition, as well as the Wigmore formulation of the privilege,
was cited with approval by the Fifth Circuit in In re Grand Jury
Proceedings, 517 F.2d 666, 670 (5th Cir. 1975).
The crux of these requirements for purposes of section 2(e) is
that the ~communlcationmust be related to an opinion on law or legal
services or assistance in some legal proceeding. Thus, a governmental
body may hold an executive session to seek-or receive.the advice of
its attorney only with regard to matters in which it seeks the
attorney's w:advice, or with regard to matters which relate to a
specific pending or contemplated legal proceeding. If the discussion
does not relate to a specific legal proceeding, the closed door
discussion ~with lithe,attorney must :be limited to legal matters.
General discussion of policy, unrelated to legal matters, is not
permitted under the language of section,.2(e) ~merely because an
attorney ie ,preeent.
SUM&f A RY
Pursuant to section 2(e) of article 6252-17,
V.T.C.S., the Open Meetings Act, a governmental
body may meet with its attorney in executive ?
session only with respect to pending or
p. 422
Honorable W. C. McDonald - Page 3 (JM-100)
contemplated litigation or settlement offers, or
to seek or receive the attorney's advice with
regard to legal matters. General discussion of
policy. unrelated to legal matters. is not
permitted merely because an attorney is present.
JIM HATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton
p. 423