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# Thp Attorney General of Texas
December 19. 1983

Honorable W. C. McDonald Pecos County Attorney Courthouse Fort -Stockton.

Texas 79735 Opinion No.JM-100 Re: Constructionof of the Open Meetings 6252-17.V.T.C.S. Dear Mr. &Donald: section 2(e) Act, article

,Youhave requested our opinion regarding the proper construction of ,section.2(e).ofarticle 6252-17. V.T.C.S., the Open Meetings Act. That section provides:

Clearly.: .attomey Private consultations between a governmental

body ,andits attorney are not permitted except in those instances, in which the body seeks the attorney's advice with respect to pending or contemplated litigation, settlemeot~offers, and matters where the duty of a public body's counsel to his clients, pursuant to the Code of Professional Responsibility .of the State Bar of Texas, clearly conflictswith this Act.
a ~governmentalbody may meet imexecutive session with its in any .instance

Pn which it.seeks the attorney'sadvice "with respect-:'to-peadiag,or contemplated litigation [or] settlementoffers." :We ~miet~detemine; however, the scope of the:following: I :i ,). 1.;~. :i: &I I.,.

, ,,i..i:'>.~

MY Matters where the~dutyof a'public body's~counsel ,.c ,xo:~ _s his client, pursuant to -the Code of i:-?Profeaaional

.Responsibility,of~.the,StateBar of +,>+I : .lT&aa, clearly conflicts.withthisAct.' .~c,:- ‘

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Code of-~Professional~:Responsibility. article 320a-1, V.T.C.S.. Title 14. Appendix A. atticle 12, section 8. provides that “[al lawyer should preserve the confidencesand secrets of a client." Frofeasor Wigmore's definition of the attorney-client privilege is perhaps the most frequentlyquoted: I.'~-I.~. t (11.:

where ,legaladvice of any kind is sought ‘.‘.2i ;.'(2)

~~~froma: professional legal adviser in his capacity as such (3) the conuuunications relating

p. 421HonorableW. C. McDonald - Page 2 (JM-100)

to that purpose, (4) made in confidence (5) by the client, (6) are at [the client's] instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protectionbe waived. 8 Wigmore, hridence 12292. at 554. The classic case law definition of the privilege is that articulated by the court in United States v. United ShoeMachinery Corp.. 89 F.Supp. 357. 358-59 (D.Mass. 1950):

The privilege applies only if (1) tbe asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) **is** a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (1) an. opinion on law or (ii) legal services or (ill) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b)not waived by the client. This definition, as well as the Wigmore formulation of the privilege, was cited with approval by the Fifth Circuit in In re Grand Jury Proceedings, 517 F.2d 666, 670 (5thCir. 1975). The crux of these requirements for purposes of section 2(e) is that the ~communlcation must be related to an opinion on law or legal services or assistance in some legal proceeding. Thus, a governmental body may hold an executive session to seek-or receive.the advice of its attorney only with regard to matters in which it seeks the attorney's w:advice, or with regard to matters which relate to a specific pending or contemplated legal proceeding. If the discussion does not relate to a specific legal proceeding, the closed door discussion ~withlithe,attorney must :be limited to legal matters. General discussion of policy, unrelated to legal matters, is not permitted under the language of section,. 2(e) ~merely because an attorney ie ,preeent. SUM&f A RY

Pursuant to section 2(e) of article 6252-17, V.T.C.S., the Open Meetings Act, a governmental body may meet with its attorney in executive session only with respect to pending or ?

?

p. 422HonorableW. C. McDonald - Page 3 (JM-100)

contemplated litigation or settlement offers, or to seek or receive the attorney's advice with regard to legal matters. General discussion of policy. unrelated to legal matters. is not permittedmerely because an attorney is present.

JIM HATTOX Attorney General of Texas TOM GREEN First AssistantAttorney General DAVID R. RICHARDS ExecutiveAssistant Attorney General Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible Colin Carl Susan Garrison Jim Hoellinger Nancy Sutton

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