Saturday, March 28, 2009

To Attorneys On Indianapolis City-County Council: Legal Ethics 101 - The Attorney-Client Privilege

During a recent council committee meeting on a revision of the ethics code several attorneys on the council (some of whom apparently don't practice) suggested that there needed to be a loophole in the rules so that an attorney councilor did not have to disclose the fact that he or she represented a particular client appearing before the council. They claimed that was necessary because of attorney-client privilege. According to Gary Welsh of Advance Indiana who reported on the meeting:
At a March 19, 2009 meeting of the Ethics Committee of the City-County Council where a new ethics code for City-County Councilors was discussed, Republican councilors on the committee, including Chairwoman Ginny Caine and Robert Lutz, incredibly are seeking a loophole for attorneys who serve on the council from disclosing clients they represent who are doing business with the city or county. Caine, Lutz and City Council counsel Bob Elrod take the untenable view that such disclosure would violate the attorney-client privilege.
Caine, Lutz and Elrod are wrong. Attorney-client privilege refers to the requirement that COMMUNICATIONS between an attorney and his client be kept confidential, unless, of course, the client chooses to waive that privilege. The privilege does not apply to prevent an attorney from disclosing who he or she represents.

An on-line legal dictionary explains the attorney-client privilege and why it exists:
In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is applied with respect to such privilege.

The attorney-client privilege encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. The privileged information, held strictly between the attorney and the client, may remain private as long as a court does not force disclosure. The privilege does not apply to communications between an attorney and a client that are made in furtherance of a fraud or other crime. The responsibility for designating which information should remain confidential rests with the client. In its most common use, however, the attorney claims the privilege on behalf of the client in refusing to disclose to the court, or to any other party, requested information about the client's case.
The attorney client privilege does not protect the existence of an attorney-client relationship or even how much the attorney has been paid by the client. See, for example: Wirtz v. Fowler, 372 F.2d 315 (5th Cir. 1966.) Again, the attorney-client privilege is about COMMUNICATIONS between an attorney and his client. It is not about who you represent or even how much you've been paid by that client.

Attorneys on the Indianapolis City-County Council need to be disclosing when they have clients, or their firms' clients, appearing before the council and recuse themselves from deliberations and voting on issues involving their clients. The attorney-client privilege is certainly not a valid basis to create a an enormous loophole in the ethics rules so that attorney councilors don't have to disclose when they have clients appearing before the council. Attorney councilors who think otherwise need to take a legal ethics refresher course.


Diana Vice said...

A friend asked me to sit on a meeting with her attorney, and I was told that if there is a third party present that all confidentiality goes out the window. Wouldn't the same be true of the types of meetings you are describing since it involves more than just the attorney and client?

Paul K. Ogden said...

No, communications between the attorney and client couldn't be discussed at the council meeting, which is apart from the initial meeting of the client and attorney where the cmmunicaitons took place.

But as far as any communciations that take place at the council meeting between the attorney and client couldn't be claimed as privilege. However, communications between them in other settings could be.

Regardless, the attorney-client privilege does not cover who you represent or even how much you've been paid by that client. The privilege covers COMMUNICATIONS between attorney and client.

Citizen Kane said...

I guess I better go back and see that meeting. I did not watch it all. I can't believe that they are trying to get away with that. I'll have to contact my councilor on the committee and ask her to challenge them on that issue.

Sean Shepard said...

Paul - correct me if I'm wrong here but typically, a law firm either can't, or it's considered bad form to, represent both sides of a deal (or case) even if it's different attorneys.

At least, I know if I were enlisting the aid of an attorney in a matter I would not use the same law firm as the people I'm intending to take action against.

Is there any hard rule on this?

Paul K. Ogden said...


In the case you describe, the attorneys would have to inform their client that the other side is represented by another member of the firm, and get them to waive the conflict. If they didn't inform the client, or get a waiver, they could be get in trouble with the Disciplinary Commission. However, if it's a B&T attorney, that's not likely to happen.

Diana Vice said...

I know a lawyer from Lafayette who was disciplined for doing this in Crawfordsville. He represented a unit of township government as well as in individual involved in a matter with that local government agency. You can find his official reprimand on file. Maybe if several people file a complaint, it might send a message that people are watching.

I know said...

What happens to an Attorney who represents himself as a Sate Appointed Official and then represents himself as an Applicant for a multi million dollar state contract and gets it awarded to him?

Is he the client or the Attorney?

What privilege doe he have to break the law???????

Your fine article needs to be directed to ANY Attorney doing business in Indiana!