One of the few times governing bodies can meet privately is to get advice from their attorney on pending or potential litigation.
The courts recognized the need to protect communications between members of governing bodies and their lawyers, but that attorney-client exemption is not as broad as some officials and attorneys sometimes assume.
Because it does not appear in the body of the statute it is the most often misunderstood and abused because officials are not fully aware of its limited purpose. It is a legal privilege, not an excuse to close meetings for other purposes. Some bodies have closed meetings under the exemption with no attorney present.
Supreme Court: Boards can meet with attorney in private when litigation is pending
This exemption was created by the Tennessee Supreme Court in Smith County Educ. Ass’n v. Anderson (1984), which involved a dispute between the Smith County Board of Education and the Smith County Education Association
The Supreme Court acknowledged the likelihood of abuse and set specific restrictions and conditions for conducting those closed meetings to protect the legal privilege without damaging the intent of the sunshine law. It made clear no decision of any kind can be made except in public:
The exception is limited to meetings in which discussion of present and pending litigation takes place. Clients may provide counsel with facts and information regarding the lawsuit and counsel may advise them about the legal ramifications of those facts and the information given to him. However, once any discussion, whatsoever, begins among the members of the public body regarding what action to take based upon advice from counsel, whether it be settlement or otherwise, such discussion shall be open to the public and failure to do so shall constitute a clear violation of the Open Meetings Act.Tennessee Supreme Court, Smith County Educ. Ass’n v. Anderson (1984)
The Supreme Court opinion footnoted that any attorney representing the public body who participates in a meeting where the restrictions are violated could be subject to an ethics complaint under Code of Professional Responsibility.
We are aware of the potential misuse of this exception in order to circumvent the scope of the Open Meetings Act. A public body could meet with its attorney for the ostensible purpose of discussing pending litigation and instead conduct public business in violation of the Act. Although the Act imposes only limited sanctions on a public body for such violations, any attorney who participates, or allows himself to be used in a manner that would facilitate such a violation, would be in direct violation of the Code of Professional Responsibility and subject to appropriate disciplinary measures.Tennessee Supreme Court, Smith County Educ. Ass’n v. Anderson (1984)
We know of no complaint being filed against an attorney, but there have been occasions where attorneys made it known their clients met without their knowledge.
The privilege belongs to the “client.” That means members of the governing body can divulge the subject of the private meeting, but the lawyer cannot without permission.
Supreme Court expands exemption to ‘pending controversy’
The Smith County case was restricted to situations where there was “pending litigation” and the “public body is a named party in the lawsuit,” but a few years later the Supreme Court expanded the exemption in Van Hooser v. Warren County Bd. of Educ. (1991) to pending controversies – defined as anticipated or threatened lawsuits.
In a 2005 case involving the Putnam County Commission and the local teachers’ association, Putnam County Education Association v. Putnam County Commission, (2005) the Court of Appeals noted the attorney–client privilege “is a very narrow exception.”
The court in Putnam imposed the same restrictions for attorney-client meetings with lawyers to discuss “pending (legal) controversies” as when litigation has been threatened or is anticipated.