Untitled Texas Attorney General Opinion

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: ;. 1.‘>> I 1.;~.:i: &I :i ,). I.,. , ,,i..i:'>.~ 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.' .~c,:- ‘,;, < 3‘ i$.., An Equal Opportunlty($;,,‘~ ‘,.$ ~~+:-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