WHO is the city attorney’s client?

I’d like to add my agreement to this morning’s editorial in The State, and elaborate on it:

IT HAS BECOME almost routine that when Columbia city attorney Ken Gaines speaks, the City Council listens — behind closed doors….

With citizens across Columbia following City Council’s deliberations over a possible curfew for teens, Mr. Gaines refused to discuss concerns he had in the open, saying that if he did so, he would violate attorney-client privilege. City officials were concerned about such questions as who would retain custody and whether the city would be liable for the safety of children who were taken into custody for breaking the curfew if their parents refused to pick them up.

Likewise, during a recent work session on a proposed ban on texting while driving, Mr. Gaines said he wanted to meet with City Council members in a closed-door session to discuss “legal issues” about potential problems with the restriction.

Mr. Gaines’ thoughts undoubtedly could affect the council’s actions. It does the public a disservice when policy is being shaped behind closed doors instead of in full public view.

We understand that the council will sometimes go into executive session to receive advice on active lawsuits — or even pending ones. What’s problematic is when closed-door meetings are held to receive information from the city’s lawyer about whether to approve or change a policy or ordinance the public must adhere to….

But we don’t believe for a second that this [the council’s interpretation] is what the Legislature had in mind when it wrote this law. After all, legislators routinely receive legal advice in open meetings about bills they are debating — because they understand that the advice is first and foremost part of the debate, which needs to be public. Apparently local officials need some help understanding this. The Legislature should change the law to make it clear that local bodies can lock out the public to talk to their attorneys only to discuss an actual legal challenge — not one that they or their lawyer imagine might someday be brought if they adopt a certain ordinance.

In the meantime, Columbia City Council and other local governments would do well to remember that while the law allows public bodies to go behind closed doors to discuss legal matters, it doesn’t require them to. City Council members should direct Mr. Gaines to share information affecting public policy in the open.

Amen. Now, here’s a thought I’d like to see further developed…

Who is the city attorney’s client? I would say it is the citizenry. I’m simply basing this assertion on reason and my understanding of representative democracy, not on a technical legal reading. But I’d love to see someone test it in court.

And even if what I’m saying is not the way it is, I’m quite sure that’s the way it should be.

As I see it, council members are the citizens’ agents, and not the principals, in this attorney-client relationship. Under this interpretation, the only way there would be attorney-client privilege allowing for closed doors (under the canons of the profession, not the FOI statute specifically) would be when the attorney is representing council members as individuals, because they have been specifically named in a lawsuit. (And then we could have a separate debate about whether the city attorney should be representing them, as opposed to their engaging private counsel. I’d be inclined to say that we the people should extend them that help when they are sued for actions performed as part of their official duties, but depending on the case, I could see debating the point.)

Bottom line, there is no justification for privilege in these policy discussions (the specific cases cited in the editorial), either under FOI law or the rules of professional responsibility.

Would any lawyers like to jump in on this? Perhaps not, after the scary warnings I heard the other day from Barbara Seymour about the dangers to attorneys’ engaging in social media, but I can always hope…

11 thoughts on “WHO is the city attorney’s client?

  1. Doug Ross

    If the mayor and council want to pay for Mr. Gaines’ services out of their own pockets then he can speak behind closed doors. He’s an employee of the people.

    At a minimum, the conversations should be recorded on videotape.

  2. Mark Stewart

    In their defense, I have seen a lot of municipal attorneys struggle to find a way to delicately let a council or commission member know that their running off at the mouth is either about to get the municipality in a whole lot of legal trouble or else is simply demonstrating the absolute incompetence of the speaker (even for a moment), usually when it comes to common sense. It doesn’t seem too hard to see how the attorneys would fall into the preference of wanting to have these kinds of discussions in private – even though these are probably the exact situations that are most deserving of being heard by the citizens. The attorney isn’t a public official and so clearly would prefer not to be held accountable, if it’s at all possible.

    Closing the door to the public neatly eases all three of these burdens that the attorney must face. Since the council or commission is never going to over-rule the attorney about going into private session, it is up to the people to call them out on this kind of weaseling.

  3. Kathryn Fenner (D- SC)

    Whoa whoa whoa–who pays for an attorney has no bearing on who that attorney’s client is. In your house closing, you pay the bank’s lawyer, but s/he’s most definitely not your lawyer and owes you no duty. Divorcing people may be paying for the other side’s lawyer likewise.

    I agree with Mr. Gaines [gack–that stuck in my craw, let me tell you] insofar as he is advising council about actual or seriously threatened litigation. As the only Columbia taxpayer in this conversation so far, I want the city to be in the best possible legal posture in that case. Sometimes you just can’t do a good job if the other side knows exactly what you’re planning–isn’t that what the objections to Wikileaks are all about?

    The issue is when he’s advising them on policy matters, which the paper points out.

    The remedy, readily at hand, is for the client–City Council, to waive confidentiality, which they have done before my very eyes in a work session.

    My beef with Mr. Gaines is that he does not seem to be very solution oriented–we propose; he disposes. He also has been wrong on a number of very high profile matters….

  4. bud

    Where is the wikileaks City of Columbia edition when you need it? This secrecy stuff at any level of government is just plain wrong. I don’t buy this attorney/client mumbo jumbo for one nano second.

  5. Brad

    Kathryn, I think we’re talking past each other. I’m not talking about who PAYS the attorney. I’m talking about whose interests the attorney is hired to represent.

    Is it the CITY — which would be the polis, the entire political entity, which includes all the citizens? Or is it this handful of INDIVIDUALS who have been chosen from among the full political entity, via the process of representative democracy, to act as their agents?

    In other words, is it the attorney’s task to advise the council members as individuals so as to keep THEM out of trouble, or to advise the city, acting through them, to avoid COLUMBIA getting into trouble?

    See what I’m saying?

    By the way, I can present an argument against my position, but it’s not what you said, because you seem to be arguing with something I didn’t say…

  6. Brad

    Now, to react to both Mark and Kathryn…

    Mark presents (and Kathryn elaborates upon), perhaps unintentionally, a wonderful argument for having these discussions in the open.

    Mark is absolutely right that many elected officials’ “running off at the mouth” is likely to demonstrate “the absolute incompetence of the speaker.” Well, that’s something the average voter should get to see, and the attorney has no business protecting the elected official from such POLITICAL (as opposed to legal) consequences as could, or should, arise from such spouting.

    Kathryn refers to the attorney’s advice helping to put the city in the best possible posture.

    Granted, it is likely to do this. And here is where I bring the two thoughts together:

    I think the PEOPLE should get the benefit of hearing someone who is NOT a total idiot articulate the issues involved. One is more likely to get that sort of benefit from the average, run-of-the-mill lawyer than one is from many, many elected officials.

  7. Brad

    And Kathryn, as to your assertion about not giving away one’s strategy, etc….

    What we’re talking about here is POLICY advice, not legal advice regarding a currently pending adversarial action.

    Totally different situations. The only kinds of “opposition” one has in the cases we’re talking about is political opposition. I see no reason for confidentiality under such circumstances.

  8. martin

    The Post and Courier reported last week their suit about attorney client privilege, the Berkeley County School District (BCSD) and FOIA was being heard by the SC Supreme Court.

    2 or 3 years ago, the attorney for the BCSD was present while individual board members completed their evaluations of a superintendent. Attorney client privilege was used as the reason BCSD would not release the individual evaluations to P&C, although they did release the final Board evaluation.

    P&C wants the Supreme Court to decide if attorney client privilege can be used as an excuse not to comply with a FOIA request. They raise the possibility that attorney/client can simply be a ruse to keep private what should be made public.

    As several of you have noted, it may be that the attorney client privilege in some of these cases is used to protect elected officials from being found out as being in over their heads. Obviously, we need to know if we are electing people who can’t perform the duties the job requires.

  9. Kathryn Fenner (D- SC)

    Yes, and I said there should not be secrecy except in litigation postures.Keep up, Brad.

    When a lawsuit comes, it will mos def bear the names of actual human beings on City Council as defendants. People who make enough in a year to qualify for food stamps if that were their only means of remuneration. In the case, and only in the case of seriously threatened or pending litigation, should atty/client privilege be invoked. As I said, Mr. Gaines is only correct in those instances, not policy.

  10. Mark Stewart

    That was the subtext of my point about competency in politics, Brad. And I agree, the municipal attorney’s role is to protect the citizenry in their totallity. The way to do this is to sheppard the politicians, not protect them from themselves. That’s for the voters to enforce.


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