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Public lawyers need stronger attorney-client privilege rules.

Florida's laws should be amended to beef up the attorney-client and work-product privilege for lawyers who represent public agencies.

The Bar's Attorney-Client Task Force adopted suggested changes to Florida laws when it met January 17 at the Bar's Midyear Meeting. Now those proposals are being sent to other sections and committees for their feedback before the proposals are sent to the Board of Governors.

Task force members said it is unlikely the reviews will be completed and the proposals reviewed by the board in time for any official Bar position in the upcoming 2008 legislative session and instead is more likely to occur for the 2009 session.

"I suspect this is going to be a little controversial," Chair Marcos Jimenez said, after the task force voted.

"The attorney-client privilege is eroded in the public sector and what we seek to do is restore that," said Marion Radson, who chaired the panel that drafted the recommendations.

He conceded the proposals will likely be controversial because they will be viewed as limiting public access to the communications between government lawyers and their agency clients. "I think there should be discussion and debate," Radson added. "I think doing nothing would be the worst situation."

The current circumstances arose from legislative efforts relating to improving access to public records and through the Sunshine laws on open government, including government meetings.

The Supreme Court eventually ruled that the legislature effectively waived attorney-client and work-product privilege with those laws, Radson said. The legislature attempted to restore some protections, but since the process is so cumbersome, it is rarely used, he said.

For an attorney to meet with a city commission to discuss pending litigation, the attorney must give notice of the meeting, even if the meeting will be closed to the public. A court reporter must keep a transcript of the meeting which becomes public when the case is decided or settled, he said. Under the law, to include other parties in the closed session, such as expert witnesses or auditors, can be difficult.

Given those problems, public attorneys many times skip having confidential sessions.

All of that, Radson said, discourages open, frank discussions between the attorney and his or her public clients, which is the purpose of the attorney-client privilege.

As for work product, court opinions have held that an attorney's opinion-related work product is confidential, but not the fact-related work product. Even then the protected product may be public unless litigation is imminent (as opposed to substantially likely if the attorney were representing a private client). The result, Radson said, is public attorneys tend to avoid putting things in writing and instead communicate verbally with their public clients.

The proposed legislation approved by the task force would:

* Prevent discovery of fact-based work product as well as opinion-based work product. While current law allows for discovery of opinion-based work product after litigation is concluded, the proposed law would permanently exempt all work product from discovery.

* Make it easier to have closed meetings between attorneys and their public clients and include outside parties as needed. Part of that change would end the requirement for a transcript to be kept, or if one is kept, it would be kept confidential at the end of the litigation. According to the subcommittee's report, this change "would allow an attorney of a public agency to hold meaningful private sessions with the public client and protect inviolate the communication."

* Prevent litigants suing public agencies from filing voluminous public records requests after the discovery period is over. Radson said this practice places an undue burden on public agencies to produce information that could have been provided during the normal discovery process.

"We now have 25 years of experience with these cases and these statutes and ... I think it is incumbent on the Bar to take a leadership role in stimulating discussion and debate on this critical issue facing the profession," Radson said. "Erosion of the attorney-client privilege marginalizes the role of the lawyer and the lawyer's ability to protect liberty and pursue justice."

After discussion regarding the details of the proposals and the method for referring them for review by other Bar entities, the task force approved the recommendations.

On a related matter, Mary Ellen Bateman, who oversees the Bar's ethics, advertising, UPL, and special project programs, reported that the U.S. House of Representatives in November passed a bill supported by The Florida Bar and the ABA. The bill would prevent federal agencies from pressuring companies or others under investigation to waive their privileges or take unfair punitive actions against their employees as a condition for receiving cooperation credit during investigations.

A similar bill, S. 186, is pending in the Senate Judiciary Committee and there is not yet any assurance it will be taken up by the committee, Bateman said.

The task force continues to monitor case law related to the crime-fraud exception to the attorney-client privilege. Task force member Ian Comisky, who is also a member of the Bar Board of Governors, said a recent case has held that there was no privilege if the government determined that the client's explanation of the case to his or her attorney was wrong or fraudulent.

When an attorney first interviews a potential client, "Are you going to tell the client, 'If you tell me something that the government says isn't true, you're going to lose the attorney-client and work-product privilege. I may be able to protect my mental impressions, but that's all. So do you want to go over that story again you just told me?' It's difficult terrain," Comisky said.

The task force agreed to monitor that issue and make no recommendations presently.

By Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Feb 15, 2008
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