Principle should always matter more than precedence or practice.
As a matter of principle, government attorneys should represent the governed, first and foremost.
In precedent and practice, however, it appears government lawyers cater their representation to elected officials themselves.
Anyone employed with public monies should work for the public.
If an attorney is hired to represent a county, who is the real client?
If an attorney is hired to represent a school district, who is the real client?
If an attorney is hired to represent a city, who is the real client?
Or, perhaps a more relevant question is: Who pays the bill?
Government attorneys should always represent the interests of the jurisdiction — county, city, school district — and that means representing citizens.
Executive session privilege is one thing.
Attorney-client privilege is quite another thing.
When someone files a lawsuit against a county, city or school district and prevails, public monies — taxpayer dollars — will be used to pay legal fees, court costs and settlements.
The public, then, is the client.
Any public officials wanting or needing private, privileged, personal, confidential representation should feel free to hire their own attorney.
The executive session privilege exists because it is specifically provided for in the Georgia Open Meetings Act.
However, that privilege is not blanket permission for elected officials to meet in private with the attorney for any reason.
It’s not the “attorney-client privilege” that exists in the private sector.
In fact, the state attorney general’s office has said the privilege exists for the purpose of discussing real or pending litigation and there must be a paper trail.
That means in order to invoke the real or pending litigation executive session privilege, the local government must have been formally named in a lawsuit that has actually been filed with the court, or have received a notice such as a letter of intent to file a lawsuit.
The mere threat or possibility of litigation is not enough to trigger the closed meeting, the AG’s office has said.
A quorum of elected officials cannot meet behind closed doors simply because the attorney is in the room.
It’s the litigation, and the need to discuss legal strategy, that triggers the confidential meeting, not the presence of legal counsel.
The intent of the privilege is not to conceal the people’s business.
The general assembly simply believed that disclosing legal strategy might compromise the people’s position in court or settlement negotiations.
Most county commissioners, city council members and members of the board of education have been led to believe that anytime they consult with the attorney in executive session it is protected under “attorney-client privilege.”
That is a misnomer.