Main Street Journal: Online Exclusive: County Commissioner Steve Mulroy: Why the Need for Public Secrecy?

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Why the Need for Public Secrecy?
By: Shelby County Commissioner Steve Mulroy

Imagine you’ve been sued by someone and need to confer with a lawyer. Would you want your conversations with your lawyer to be recorded and broadcast so the other side could hear it, or would you want to confer with counsel confidentially?

Now imagine you’re a corporate board member with the same problem. Should you and the other board members be able to confer privately with retained counsel?

This is the issue faced by the Shelby County Commission, the Shelby County School Board (SCS), and the Memphis City School Board (MCS) in the ongoing federal litigation about school merger.

There’s been recent controversy about the County Commission’s meeting with its attorneys in secret. In fact, this is nothing new, has long been the law, and is standard practice for all public bodies, including the Shelby County School Board. The only thing new has been the attempt by one dissident Commissioner to communicate this information to the public.

For obvious reasons, a client in litigation wants to be able to consult with his lawyer in private, without revealing the contents of the discussion to the other side. The law gives a client this right. That doesn’t change just because the client is a legislative body. The Sunshine Act recognizes an “attorney-client privilege” exception, allowing public bodies to ask questions of their attorneys in secret about anticipated or pending litigation. Any actual decisions they make after conferring with counsel must of course be public.

That exception applies whether the lawyer is “inside counsel,” like the County Attorney, or “outside counsel,” like the private law firm temporarily retained by the County Commission to handle this complex litigation. (By the way, it’s been standard practice for decades for the County Attorney to consult with outside counsel in major litigation requiring specialized knowledge. This is also the case with SCS and MCS Boards, both of whom have retained outside counsel for this purpose.)

What if one member of the “client” legislative body disagrees with the litigation position taken, or wants the attorney discussions made public? That shouldn’t, and doesn’t, matter. The “client” is the whole body; one member of a legislative body, or corporate board, does not have the right to waive the attorney-client privilege for the body as a whole.

The only reason you’ve seen media reports of this controversy regarding the County Commission is that there is one dissident Commission member who has protested the secrecy. The SCS and MCS Boards are also conferring in private, but have no dissident members making a public issue of it.

What about lawyer billing records? There’s a separate controversy about that, with one County Commissioner seeking access to fully detailed attorney billing records. If released publicly, really detailed billing records would tell the other side what legal issues our attorneys were researching and drafting. Since one of our number has stated a willingness to release all data publicly, this runs into the same issue as above.

Our lawyers gave fully detailed records to the County Attorney confidentially, and released to the rest of us (and the world) redacted records which simply state which lawyer billed, for how many hours, on what date, at what hourly rate, and the total amount of money spent. Since the public interest in these records is to monitor spending of taxpayer money, this information ought to be enough.

Despite this, I, along with County Commissioner Chris Thomas, authored a compromise under which our lawyers would release general descriptions of their hourly activity, such as “Research,” “Telephone Calls,” “Conference With Co-Counsel,” etc. This is more than normally released publicly, but will not compromise our legal position. This proposal passed on a bipartisan 10-1 vote.

That last agreement is a healthy sign that, despite the strong feelings about the school merger issue, we can avoid acrimony and work toward sensible compromise. Let’s hope we can do the same with the pending litigation. Until we do, local legislators’ consultations with attorneys will have to remain private.

Steve Mulroy is a Shelby County Commissioner and a law professor at the University of Memphis.

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