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Meetings Between Attorney and Agency

The public has a right to transparency of proceedings in administrative agencies.  They have the right to know what a public official does when transacting public business.  Every state in the U.S. has open meetings laws to provide transparency for government actions.  According to these open meetings laws, all government business should be conducted in open meetings to which the public have access.

The requirement for open meetings has certain exceptions.  The law permits limited closed meetings between attorneys and administrative agencies.  The attorney-client privilege is a legal concept that protects communications between a client and an attorney.  This privilege helps to keep communication between an attorney and a client confidential.  A private meeting between an attorney and an administrative agency falls under the attorney- client privilege.

The attorney-client privilege exception does not apply to a mere request for general legal advice.  For example, when an administrative agency conducts a meeting with its attorney to discuss about a proposed rulemaking that may lead to future lawsuits, it can be viewed as general legal advice.  Besides, discussion of a proposed legislation should be an open meeting discussion.

An open meeting law exception is applicable to attorney and agency meetings tha discuss litigation methods, as an open meeting might affect the case position adversely.  To provide an exception of attorney-client privilege, an administrative agency is supposed to provide notice about the matter to be discussed[1].  A general statement that the meeting is being closed to discuss pending or threatened litigation is not sufficient.

Most state laws have provided that private meetings between agencies and attorneys are allowed.  However, some courts even in absence of any express provision in statutes have provided the exception of closed door sessions for administrative agencies and their counsels[2].  This exception is provided particularly in cases where agency-counsel discussion concerns pending investigation, claim, or action.  Courts allow closed session between agency and counsel when an open discussion of matters can seriously disable an administrative agency from conducting public’s business.

[1] Gandolfi v. Town of Hammonton, 367 N.J. Super. 527 (App.Div. 2004)

[2] Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921 (Ky. 1997)

Inside Meetings Between Attorney and Agency