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Townships are public governmental entities. As such, Townships have practical and legal implications that require them to transact business in the open and with transparency. In transacting Township business, Townships frequently are advised by their township attorneys. These attorneys provide advice through various communications, which may include emails, letters, and texts. Townships may then internally communicate about such work with other officials, employees, and contractors. Importantly, communications and work from the attorney will be protected and thus exempt from disclosure under the Freedom of Information Act (FOIA) and during litigation. This protection is better known as “attorney-client privilege,” and it is important for Townships to avoid various pitfalls that may impact whether the privilege can be maintained. This month’s E-letter will discuss the different facets of attorney-client privilege, the situations where it does not apply, as well as the precautionary steps Townships should take to ensure that the Township is being careful and taking the correct approach with attorney-client privileged communications.

What is Attorney-Client Privilege?

One of the cornerstones of legal ethics is the principle that all communications between an attorney and a client are “privileged.” Colloquially, this is known as “attorney-client privilege.” Opinions, conclusions, and recommendations based on facts are protected by the attorney-client privilege when they are confidentially disclosed to an attorney for the purpose of legal advice. Hubka v Pennfield Twp, 197 Mich App 117, 122; 494 NW2d 800 (1992), rev’d on other grounds 443 Mich 864 (1993).

Attorney-client privilege is a matter of common law right[1], “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co v United States, 449 US 383, 389 (1981). In Upjohn Co v United States, a seminal Supreme Court case on privilege, the Supreme Court stated that attorney-client privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn, 449 US at 390. The principle of attorney-client privilege has been incorporated into Rule 1.6 of the Michigan Rules of Professional Conduct, the rules that guide attorney practice and ethics in Michigan. Michigan Rules of Professional Conduct (“MRPC”) 1.6(b) provides that, except when permitted, an attorney shall not knowingly:

• Reveal a confidence or secret of a client;
• Use a confidence or secret of a client to the disadvantage of the client; or
• Use a confidence or secret of a client for the advantage of the attorney or of a third person unless the client consents after full disclosure.

“Confidence” refers to information protected by the client-attorney privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client. MRPC 1.6(a).

The central idea behind attorney-client privilege is that an attorney should be fully informed of all the facts of the matter he/she is handling for the client. See Reed v Baxter, 134 F3d 351 (6th Cir. 1998). It is for the attorney in the exercise of his/her “independent professional judgment to separate the relevant and important from the irrelevant and unimportant.” Hickman v Taylor, 329 US 495, 511 (1947); see also Ross v City of Memphis, 423 F.3d 596 (6th Cir 2005).

Essentially, this means that attorney-client privilege is based on two related principles: (1) that loyalty formed between the attorney and client during the sharing of confidential information would be improperly offended if an attorney is subject to routine examination regarding a client’s confidential disclosures, and (2) that privilege encourages clients to make full disclosure to their attorneys, and a fully informed attorney may provide better legal representation to that client and further promote the administration of justice. Reed, 134 F3d at 356.

From a legal ethics perspective, the observance of the ethical obligation of an attorney to hold inviolate the confidences and secrets of his/her client not only facilitates the full development of facts essential to proper representation of the client, but also encourages laymen to seek early legal assistance. See United States v Tedder, 801 F2d 1437, 1442 (4th Cir. 1986).

When Does Attorney-Client Privilege Apply?

Attorney-client privilege essentially makes communications between a client and their attorney private. This equally applies to Townships. Attorney-client privilege is so highly regarded that Michigan’s Freedom of Information Act specifically exempts “[i]nformation or records subject to the attorney-client privilege” from disclosure. MCL 15.243(1)(g).

For townships, public records subject to attorney-client privilege include communications from a public official, employee, or agent in the context of requesting legal advice. See Herald Co, Inc v Ann Arbor Pub Sch, 224 Mich App 266, 279; 568 NW2d 411 (1997) and Estate of Nash by Nash v City of Grand Haven, 321 Mich App 587, 593–94; 909 NW2d 862 (2017).

The concept of attorney-client privilege is not absolute. A Township official or employee could ask a question to the Township attorney, but it is not a foregone conclusion that the communication will be privileged. Privilege attaches to communications a client makes to the attorney when both: (1) the attorney is acting as a legal advisor; and (2) the client is reaching out for the purpose of obtaining legal advice. Taylor v Blue Cross & Blue Shield, 205 Mich App 644; 517 NW2d 864 (1994). Both elements must be present for a communication or document to be deemed “privileged.”

Communications with or from the Township attorney (or any attorney) that do not seek, discuss, or provide legal advice are not privileged. Additionally, communications that discuss legal matters but that are not between the Township attorney and the Township officials (and certain Township employees) are not protected by attorney-client privilege. This can occur when a Township discloses the Township attorney’s legal advice to a third party (such as forwarding an email or producing a legal opinion). This can also occur when one Township official discusses with another Township official a matter involving a legal issue or lawsuit via email which does not include the Township attorney and otherwise complies with the elements identified above. When these communications occur, such documents and emails are likely discoverable and subject to FOIA.

What are the Exceptions to Attorney-Client Privilege?

Attorney-client privilege is not without exception. A clear list of the exceptions to the attorney-client privilege rule is found in Michigan Rules of Professional Conduct 1.6(c). These exceptions allow an attorney to reveal:

• Confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
• Confidences or secrets when permitted or required by the Michigan Rules of Professional Conduct, or when required by law or by court order;
• Confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the attorney’s services have been used;
• The intention of a client to commit a crime and the information necessary to prevent the crime; and
• Confidences or secrets necessary to establish or collect a fee, or to defend the attorney or the attorney’s employees or associates against an accusation of wrongful conduct.

By way of example, a Township Board may request that an attorney reveal certain confidential information to a third party. In that scenario, the attorney may ethically do so as the Township has provided consent to the disclosure. These exceptions should be considered to ensure that Townships are aware of instances where attorney-client privilege would not apply, or privileged information would otherwise be disclosed.

How do you Waive Attorney-Client Privilege?

The attorney-client privilege is personal to the Township, and only the Township can waive it. Ravary v Reed, 163 Mich App 447, 453; 415 NW2d 240 (1987), quoting Passmore v Passmore’s Estate, 50 Mich 626, 627; 16 NW 170 (1883). Typically, waiving privilege requires “‘an intentional, voluntary act and cannot arise by implication,’ or ‘the voluntary relinquishment of a known right.’” Franzel v Kerr Mfg Co, 234 Mich App 600, 616; 600 NW2d 66 (1999).

Since privilege must be intentionally and voluntarily waived, inadvertent disclosure to a third party does not abrogate or waive the privilege. Leibel v GMC, 250 Mich App 229, 241; 646 NW2d 179 (2002).

For example, let’s say there is a communication between an attorney and a client where the client is asking about the legal ramifications of enacting a certain ordinance. The client’s query is soliciting legal advice, and that email (as well as the attorney’s subsequent response analyzing that question) meets the first and second prong for classifying privilege. They are, thus, privileged. If the email is accidentally forwarded to a third party who is not a Township official, the privilege is likely not waived under Michigan law. See Franzel, 234 Mich at 616.

On the other hand, a client’s voluntary disclosure of confidential communication to a third party waives and destroys the attorney-client privilege. See Sterling v Keidan, 162 Mich App 88, 95–96; 412 NW2d 255 (1987). One of the most common ways to waive the privilege is to have a third party present at the time of the communication. This could be as simple as copying a third party on Township communications with its attorney or forwarding an email from the Township attorney to a third party. Even if the Township did solicit legal advice from its attorney at the time, the presence of the third party on that email chain may prevent any privilege from applying. There are some exceptions to the third-party rule. Language interpreters generally do not count, and a third party who is also a second attorney of the Township in the same matter typically maintains privilege. See People v Truong, 218 Mich App 325 (1996).

Attorney-client privilege is also destroyed by the client formally agreeing to waive the privilege. A waiver is often required to be in writing and cannot be undone, nor can parties choose to waive privilege selectively. In re Columbia/HC Healthcare Corp Billing Practices Litigation, 293 F3d 289 (6^th Cir. 2002). As a practical matter, government entities sometimes agree to formally waive the privilege during a FOIA proceeding and/or litigation to show they have nothing to hide. See id.

Townships should consider how they are communicating and with whom to ensure that any waiver of privilege is intentional (and with direction and guidance from the Township attorney as to whether waiver is appropriate).

The Work Product Doctrine:

Often, when employees are attempting to discern what documents are attorney-client privileged in response to a discovery or FOIA request, questions arise regarding memorandum and/or redlines that the Township attorney may have prepared for the Township. These documents aren’t necessarily “communications” in the technical sense. No one is asking the attorney a question nor is the Township attorney providing a response. However, these documents are likely still protected by a concept known as the “work product” doctrine. The work product doctrine is a qualified privilege closely related to attorney-client privilege, so much so that the two concepts often overlap. In common parlance, many individuals refer to the attorney-client privilege without discerning whether such a document is more appropriately classified as “work product.”

Historically, an attorney is bound to work for the advancement of justice while faithfully protecting the rightful interests of the attorney’s clients. In performing work for a client, an attorney needs to work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Hickman v Taylor, 329 US 495 (1947) (recognizing that inefficiency and unfairness would result if attorney work product were opened to opposing counsel).

The United States Supreme Court has recognized that certain items that an attorney prepares, i.e., interviews, statements, memoranda, correspondence, briefs, and mental impressions, should not be disclosed to opposing parties. US v Nobles, 422 U.S. 225, 238 (1975). This protection allows an attorney to ruminate on their legal theories and strategize without undue and needless interference and, ultimately, protect their clients’ interests. Id. at 239.

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which the attorney can analyze and prepare their client’s case. Id. The doctrine extends to an attorney’s efforts during trial as well. But the doctrine is an intensely practical one, grounded in the realities of litigation. Id. at 238.

The doctrine, like attorney-client privilege, is not absolute. Like other qualified privileges, it may be waived in the same manner as attorney-client privilege may be waived (exposure to a third party, voluntary disclosure, formal waiver). See id. Thus, Townships should be careful when considering the disclosure of records. Even though it may not be a written communication from the Township attorney, a document created or modified by the attorney may remain protected under the work-product doctrine.

Tips for Maintaining Attorney-Client Privilege

Given how privileges apply and the plethora of communications and documents that may qualify as privileged, below are five best practices for Township to ensure that attorney-client privilege remains intact, unless the Township Board has intentionally and voluntarily decided to remove such privilege:

• Ensure that an attorney-client relationship is in place. To have attorney-client privilege, the Township must have a valid attorney-client relationship in place. For Township officials and employees, individuals should bear in mind that the Township attorney represents the Township, not any single official or employee unless a specific engagement exists between that individual and the Township attorney.
• Consult with the Township attorney on how to best maintain privilege. If Township is concerned about how to maintain privilege, we recommend that you consult with the Township’s attorney and ask them how to discuss sensitive legal matters in the office, who to include in those conversations, and how best to communicate with other officials and employees regarding legal matters.
• Limit the number of individuals on emails to the Township attorney. Make sure that Township officials streamline communications with the Township attorney and are making conscious decisions regarding the individuals copied on such communications. Having one person or two people work with and communicate with the Township attorney until a matter requires full presentation to the Township Board helps minimize and reduce the risk of accidentally waiving privilege by including third parties on Township communications. It further reduces the risk that such communications are inadvertently forwarded to third parties.
• Include the Township attorney on communications regarding legal questions. Whenever an elected official or the Township is considering or debating a matter which may have legal implications or questions associated with it, the Township should initiate such conversations with the Township attorney and maintain the attorney on such communications as the matter develops. This helps ensure that 1) the Township attorney is aware of the background facts and concerns regarding the issue and may address them in a timely manner; and 2) the Township attorney can provide solicited input and maintain the communication as privileged.
• Keep privileged documents separate. As the Township has discussions with legal counsel, the Township can greatly assist other staff in FOIA requests and litigation matters by keeping legal opinions, attorney-client emails, and other legal communications separate from the Township’s day-to-day emails and files, even if they relate to the same broad topic. Keeping documents and communications separate will help ensure that those communications remain confidential and do not accidentally get turned over if the Township is preparing a response to a FOIA request.

Conclusion

We hope this information helps you better understand attorney-client privilege and helps Townships guard against unnecessary disclosure of privileged documents. If the Township is facing FOIA requests and/or litigation and is unsure of how to proceed, our firm would be happy to address any questions one may have.

By: Alana Ballantyne

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

[1] MRE 501 (privilege is governed by the common law, except as modified by statute or court rule).