Gen. 15 15

COUNTIES

ATTORNEYS ) EVIDENCE ) PUBLIC INFORMATION ACT )

“CLIENT” OF ST. MARY’S COUNTY ATTORNEY )

APPLICATION OF ATTORNEY-CLIENT AND OTHER

PRIVILEGES TO DOCUMENTS PREPARED BY COUNTY

ATTORNEY

December 16, 1997

The Honorable Roy Dyson

Maryland Senate

You have requested our opinion concerning the assertion of the

attorney-client privilege by the County Attorney for St. Mary’s

County. Specifically, you ask whether the clients of the county

attorney are, as you put it, “the County Commissioners and not the

citizens of St. Mary’s County.” You also ask whether written

material prepared by the county attorney for a county agency may be

withheld from public disclosure as privileged.

Our opinion is as follows:

1. The corporate entity that is St. Mary’s County is the client

of the St. Mary’s County Attorney. The county commissioners are

not individually the clients of the county attorney. However, to the

extent that the commissioners and other elected and appointed

officials and employees of the county are carrying out the functions

of the corporate entity in accordance with law, they are the agents of

the client and may be viewed by the county attorney as entitled to

speak for the client. Although the county attorney should act with

due regard for the public interest, an attorney-client relationship as

such does not ordinarily exist between the county attorney and the

citizens of the county. 

2. A document is not confidential as a matter of law merely

because it is prepared by the county attorney. Many documents

prepared by the county attorney, however, are privileged because of
16 [82 Op. Att’y

1

 The status of documents and other records is determined under the

Public Information Act, rather than the St. Mary’s County Open Meetings

Law, Article 24, Title 4, Subtitle 2.

2

 Likewise, counties that have adopted charter home rule are also

corporations. See Article 25A, §1.

3

 In charter home rule counties, the charter may delineate a more

specific role for the county attorney ) that is, whether the county attorney

represents both the executive and legislative branches of government or

only the executive branch. Compare, e.g., §213 of the Montgomery

County Charter with §403(b) of the Harford County Charter. 

their content and therefore are not disclosable under the Maryland

Public Information Act.1

I

Identity of the County Attorney’s “Client”

Article 25, §1 of the Maryland Code begins as follows: “The

county commissioners of each county in this State are declared to be

a corporation ....” The corporate status of the county commissioners

is confirmed by the case law. See Neuenschwander v. Washington

Suburban Sanitary Comm’n, 187 Md. 67, 48 A.2d 593 (1946); Jay

v. County Commissioners, 120 Md. 49, 87 A. 521 (1913).2

Therefore, the attorney for a county represents the corporate entity.3

In the course of representing that corporate entity, a county

attorney is subject to the Maryland Rules of Professional Conduct.

One of these, Rule 1.13, addresses the responsibility of a lawyer to

an organizational client. Under Rule 1.13(a), “a lawyer employed or

retained by an organization represents the organization acting

through its duly authorized constituents.” As the comment to the

rule points out, “an organizational client is a legal entity, but it

cannot act except through its officers, directors, employees,

shareholders and other constituents.” In this rule, the term

“constituents” does not have the political meaning of those who elect

the governing officials. Rather, the term “constituents” refers to

those who, in the structure of the organization, are entitled to act for

it. When the corporation is a county, these “constituents” include

the county commissioners, appointed officials, and employees and

agents of the county. 
Gen. 15 17

The comment to the rule recognizes that “defining precisely the

identity of the client and prescribing the resulting obligations of

[government] lawyers may be more difficult in the government

context. Although in some circumstances the client may be a

specific agency, it is generally the government as a whole. For

example, if the act or failure to act involves the head of a bureau, the

department of which the bureau is a part or the government as a

whole may be the client for the purposes of this rule.” In other

words, the county attorney must consider the extent to which, under

applicable law, the official or employee is authorized to act on

behalf of the county. Within the scope of lawful authority, the

official or employee is an agent of the corporate entity and is entitled

to speak on behalf of, and exercise the privileges of, the client. 

Certainly, a county attorney, like other public lawyers, has a

responsibility to consider the public interest. As the comment to the

rule points out, for example, “when the client is a governmental

organization, a different balance may be appropriate between

maintaining confidentiality and assuring that [a] wrongful official

act is prevented or rectified, for public business is involved.”

Nevertheless, the county attorney generally does not have an

attorney-client relationship with members of the public, for they are

neither the corporate entity that is the client nor agents of the county

authorized by law to act on its behalf. 

II

Attorney-Client Privilege ) Invocation

A governmental entity is no less entitled to the protection of

the attorney-client privilege than any other client. This protection

exists both under the common law and by statute. 

The attorney-client privilege has ancient origins and was

established as a matter of English common law long before the

independence of the United States. See Upjohn Co. v. United States,

449 U.S. 383, 389 (1981); United States v. (Under Seal), 748 F.2d

871, 873 (4th Cir. 1984). As one court observed, “the privilege is

intended to encourage the client in need of legal advice to tell the

lawyer the truth. Unless the lawyer knows the truth, he or she cannot

be of much assistance to the client.” Samaritan Foundation v.

Goodfarb, 862 P.2d 870, 874 (Ariz. 1993). 
18 [82 Op. Att’y

In Maryland, the attorney-client privilege has been described

as “deeply rooted in the common law.” State v. Pratt, 284 Md. 516,

519, 398 A.2d 421 (1979). Therefore, the privilege is preserved

under Article 5 of the Declaration of Rights, which declares that “the

Inhabitants of Maryland are entitled to the Common Law of England

... according to the course of that Law ....” The common law

privilege is also given statutory recognition: “A person may not be

compelled to testify in violation of the attorney-client privilege.” §9-

108 of the Courts and Judicial Proceedings Article. 

The common law privilege has always been understood to be

available to government agencies. See, e.g., Hearn v. Rhay, 68

F.R.D. 574, 579 (E.D. Wash. 1975) (“Federal courts have uniformly

held that the attorney-client privilege can arise with respect to

attorneys representing a state.”). As the D.C. Circuit recently

observed, “In the governmental context, the ‘client’ may be the

agency and the attorney may be an agency lawyer.” Tax Analysts v.

IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). See also, e.g., In re Grand

Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied,

117 S. Ct. 2482 (1997) (recognizing federal government’s

entitlement to claim attorney-client privilege while rejecting

applicability of privilege to notes taken by in-house presidential

counsel during meetings with First Lady and her private counsel).

The Maryland Public Information Act (“PIA”) likewise

recognizes the attorney-client privilege as a basis on which a

government agency may withhold documentsfrom public inspection.

Under §10-615(1) of the State Government (“SG”) Article,

Maryland Code, “a custodian shall deny inspection of a public record

or any part of a public record if ... by law, the public record is

privileged or confidential.” In addition, under SG §10-618(b), “a

custodian may deny inspection of any part of an interagency or intraagency letter or memorandum that would not be available by law to

a private party in litigation with the unit.” This somewhat awkward

provision, adapted verbatim from the federal Freedom of

Information Act, has long been held to incorporate the attorneyclient privilege. See generally Annotation, Freedom of Information

Act Exemption (5 U.S.C.S. §552(b)(5)) for Inter-Agency and IntraAgency Memorandums or Letters as Applicable to Communications

to or from Attorneys for the Government, 54 A.L.R. Fed. 280 (1981).
Gen. 15 19

4

 Under what is called the “joint defense” or “common interest” rule,

the privilege can be preserved for communications not only with clients

but also among “persons who share a common interest in litigation” and

their attorneys. In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-

129, 902 F.2d 244, 249 (4th Cir. 1990).

5

 Prudence suggests that documents within the privilege be

identified as such. The failure to do so, coupled with unnecessary

distribution of the documents, may suggest that confidentiality was not

intended. See Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693,

(continued...)

In sum, St. Mary’s County, acting through its agents, is entitled

to invoke the attorney-client privilege. Unless an official authorized

to do so has waived the privilege, the county attorney has a duty to

assert it on behalf of the client entity. 

III

Attorney-Client Privilege ) Scope

“The attorney-client privilege protects confidential

communications from clients to their attorneys made for the purpose

of securing legal advice or services.... The privilege also protects

communications from attorneys to their clients if the

communications ‘rest on confidential information obtained from the

client.’” Tax Analysts v. IRS, 117 F.3d at 618 (quoting In re Sealed

Case, 77 F.2d 94, 99 (D.C. Cir. 1984)). See generally Harrison v.

State, 276 Md. 122, 135, 345 A.2d 830 (1975).4 Because the client

in this situation, the county, is an organization, “the privilege

extends to those communications between attorneys and all agents

or employees of the organization who are authorized to act or speak

for the organization in relation to the subject matter of the

communications.” Mead Data Central, Inc. v. United States Dep’t

of Air Force, 566 F.2d 242, 253 n. 24 (D.C. Cir. 1977). Thus, the

attorney-client privilege may be invoked for communications

between a county attorney and agents of the county in circumstances

where there is “actual confidentiality, limited distribution

safeguards, real expectations of confidential status, and the

functioning of the attorney as counsel to the agency ....

Confidentiality must have been both expected at the time and

carefully maintained to avoid disclosure.” 1 James T. O’Reilly,

Federal Information Disclosure §15.14 (2d ed. 1996).5
20 [82 Op. Att’y

5

 (...continued)

696 n.6 (E.D. Va. 1987); Hardy v. New York News, Inc.. 114 F.R.D. 633,

644 (S.D.N.Y. 1987).

The privilege, however, “is not absolute; it does not restrict

disclosure of every aspect of what occurs between the attorney and

the client.” In re Criminal Investigation No. 1/242Q, 326 Md. 1, 11,

602 A.2d 1220 (1992). For example, facts that the attorney may

develop independently from sources other than the client are not

privileged, even if those facts are included in the lawyer’s

communication to the client. See Allen v. West Point-Pepperell,

Inc., 848 F. Supp. 423, 427-8 (S.D.N.Y. 1994); Smith v. Conway

Organization, Inc., 154 F.R.D. 73, 78 (S.D.N.Y. 1994); Carte

Blanche (Singapore) P.T.E., Ltd. v. Diners Club Int’l, 130 F.R.D. 28,

33 (S.D.N.Y. 1990). Moreover, a document that is not itself

privileged does not gain privileged status merely because it passes

through the attorney’s hands or is attached to an attorney’s

communication to the client. See, e.g., Pacamor Bearings, Inc. v.

Minebea Co. Ltd., 918 F. Supp. 491, 511 (D.N.H. 1996). 

At times, a government lawyer may be assigned the role of

articulating an agency’s view of the law. If, for example, an agency

lawyer provides “neutral, objective analyses of agency regulations,”

these documents may fall outside the privilege. Coastal States Gas

Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980).

When the attorney in effect becomes the decision maker for the

agency, the documents embodying the decision are not privileged.

Schleffer v. United States, 702 F.2d 233 (D.C. Cir. 1983). 

IV

Other Privileges

The attorney-client privilege is not the only one that might be

available to maintain the confidentiality of documents prepared by

a county attorney. As a matter of both common law and the PIA, a

county attorney may assert the work-product privilege to keep

certain material confidential. In general, “documents ... prepared in

anticipation of litigation or for trial” are the attorney’s work product.
Gen. 15 21

Maryland Rule 2-402(c). This work product is ordinarily not

discoverable in civil litigation: “We do not think that discovery in

civil cases ... goes to that which is in essence the work product of the

attorney accumulated in the preparation of the case.” Wagonheim v.

Maryland State Board of Censors, 255 Md. 297, 309, 258 A.2d 240

(1969), aff’d, 401 U.S. 480 (1971). The privilege is intended to keep

confidential the “attorney’s legal strategy, his intended lines of

proof, his evaluation of strengths and weaknesses of his case, and

the inferences he draws from interviews of witnesses.” Sporck v.

Peil, 759 F.2d 312, 316 (3d Cir.), cert. denied, 474 U.S. 903 (1985).

In addition, the PIA protects from disclosure client confidences

covered by Rule 1.6 of the Maryland Rules of Professional Conduct.

This rule prohibits a lawyer from revealing “information relating to

representation of a client unless the client consents after

consultation, except for disclosures that are impliedly authorized in

order to carry out the representation,” and except as otherwise

authorized in the rule or other law. If disclosure of information

would place a county attorney in violation of Rule 1.6, then the

information is “privileged and confidential” for purposes of a

request under the PIA. Harris v. Baltimore Sun Co., 330 Md. 595,

625 A.2d 941 (1993).

Finally, a writing from the county attorney might also be

exempt from disclosure if it falls within the executive or

governmental privilege aspect of SG §10-618(b). See generally

Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); 66

Opinions of the Attorney General 98 (1981). This privilege protects

materials that are deliberative in character and that were created

during the process leading up to a decision. See Office of the

Attorney General, Public Information Act Manual 24-26 (7th ed.

1997).
22 [82 Op. Att’y

6

 Subsequent to your request for an opinion, your office provided

material from a constituent that, in the constituent’s view, evidenced too

broad an assertion of privilege by St. Mary’s County when certain

documents were requested under the PIA. Because theAttorney General’s

Office has not been granted authority to adjudicate disagreements about

the status of records under the PIA, we must limit ourselves to the

guidance provided in this opinion and decline to consider whether the

County responded correctly to particular requests for documents.

V

Conclusion

In summary, it is our opinion that St. Mary’s County, as a

corporate entity, is the client of the St. Mary’s County Attorney, and

the County Attorney may, under appropriate circumstances, invoke

the attorney-client and other privileges to maintain the

confidentiality of documents encompassed by those privileges.6 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice