in Houston, Texas
Attorney-client privilege for governments hampers transparency
Fri Oct 23 15:33:53 2009 CST
By Jennifer Peebles
When you talk to a lawyer, your lawyer isn't supposed to go blabbing to the world about the subject of your conversation.

But what about a lawyer's conversations with a client when that client is a government agency, supported entirely by the taxpayers, with taxpayers paying the lawyers' salaries as well?

In Texas and other states, those conversations are off-limits to the public.

Attorney-client privilege is being cited by the city of Houston in its bid to keep under wraps communications and other records pertaining to red-light cameras here in the city. And it's also being cited by Gov. Rick Perry in his attempts to keep confidential records pertaining to the case of Cameron Todd Willingham, the accused arsonist whose conviction, and subsequent execution, has become a national controversy in recent weeks. It was one of many topics brought up at the Freedom of Information Foundation of Texas' annual conference I attended in Austin in August.

Attorney-client privilege may be recognized under Texas law as a way for government agencies to get around the Texas Public Information Act, but I still don't buy it. And, judging from the reactions of some other attendees at the FOIFT conference, I'm not the only one not buying it.

Look, I have no problem with average people being able to talk to their lawyers in private. And if public officials want to hire their own outside legal counsel out of their own pockets -- especially if they're being charged with a crime -- hey, those conversations ought to be private, too.

But when a government agency hires lawyers, that's my money and your money -- our money running the government agency, our money paying the lawyers. The government agency is acting in our name, in our behalf and on our behalf, and we have a right to know what it's up to, and to be able to speak out if we disagree.

In turn, the lawyers -- especially in-house counsel like full-time, on-staff city attorneys and county attorneys -- are also acting in our name and on our behalf. What gives them the right to keep secrets from us?

Think about it: In the cases mentioned above, what could be in those documents that they mind so much getting out?

It could be lots of long, boring passages in legalese. But it also could be correspondence indicating that government officials gave false or inaccurate information to the courts, or to the public. It could be correspondence indicating that government officials did not take something seriously that they should have taken seriously. It could be correspondence that would otherwise embarrass government officials or show they did things they shouldn't have done. All of which we have a right to know about.

I've known some very good city attorneys, county attorneys and lawyers for state governments who warned their clients that what they were doing -- or thinking of doing -- was wrong or possibly against the law. But then again, I also saw some who felt their job was to find a way to legally justify whatever outrageous scheme or action sprang from the head of the political leadership, whether the public at large supported it or not. They seemed to think they worked for the mayor, county judge, governor or whoever ran that agency.

But they don't. They work for you and me, and if you ask me, whatever advice they're giving to their government clients is our property, too.

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