Writings and observations

Who the client is

The issue is clear – so that there is no issue – when private citizens like you or us, or a private business or other private entity hire an attorney, converse with the attorney and get advice from the attorney. Those kinds of communications are confidential. Only under the most extreme of cases, such that there are hardly any, can those communications be legally pried loose. (Or such has been the standard in this country.)

Now let’s say you’re a member of a city council, and you and the other council members agree to hire an attorney to look after the city’s interests – not yours personally, but the city’s.

Under the norms in open meetings and public records law, those communications are considered confidential between the city attorney and the city officials: The council and mayor, say, and whoever else they allow in. The people on whose authority the attorney was hired and on whose behalf the attorney is acting – that is, the residents of the city – typically are shut out. And if you suspect that from time to time, the advice the attorney is giving council members under such conditions may be aimed more at keeping the council members out of trouble, than at doing the same for the city – and those interests do not always perfectly coincide – you could be right.

Those are the kind of suspicions the Oregon Supreme Court will now leave to fester in the case of an attempt to more fully expose to public scrutiny the financial management of the Klamath County school district.

In 2000 the school district had an unexpected spending shortfall of $2.5 million. The months that followed suggested some ugliness, not clearly defined, lay behind it. Questions arose about contracts the district had entered into, about controversial purchases and about layoffs of some of the teachers. The questions persisted. The district contracted with a lawyer to investigate, but the results of that investigation were locked away, never released. In 2003 one district patron, Bert Teamey, filed a lawsuit seeking to tell the district’s taxpayers what that investigation found. Klamath County’s district attorney said the district should simply go ahead and release the records, suggesting they were covered by the strong Oregon public record law. The local Klamath Falls Herald & News, along with a string of other Oregon newspapers, eventually piled on.

Instead, the district filed a countersuit against its own taxpayer, and said many of the record he sought were protected by attorney-client privelege. The next year, Klamath County Circuit Court Judge Karla Knieps sided with the district.

So, to get this straight: If an attorney is involved in looking over financial records, that’s reason enough for public officials to refuse to tell taxpayers how their money is spent. The taxpayers, that is, on whose behalf the attorney is supposedly working. That Knieps ruling has to stand as one of the more outrageous judicial decisions in Oregon in recent years.

Alongside that of the Oregon Court of Appeals, which this summer agreed. And the non-decision – the decision not to consider the case – this week by the Oregon Supreme Court.

Rogue Pundit, which has followed much of this, noted, “I still wonder what [the school board is] hiding. When conducting the investigation, the lawyer and experts he hired told those being interviewed that the information would remain confidential … and it has.”

There’s some indication that legislation covering some of this will arrive, courtesy of the state newspaper association, at the Oregon Legislature next session. None too soon.

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