New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Consultation with legal counsel is confidential when client has reasonable expectation of confidentiality

Professional Fire Fighters of N.H. v. N.H. Local Government Center
No. 2011-550, 5/11/2012

This case provides further guidance about the extent of the attorney-client privilege and its interaction with RSA Chapter 91-A, the Right to Know Law. The issue in this case was whether or not portions of meeting minutes were protected from disclosure by the attorney-client privilege.

Ordinarily, meeting minutes are available to the public upon reasonable request, except sealed minutes of a non-public session. RSA 91-A:2, II and RSA 91-A:3, III. However, in this case the meeting occurred before the public body was made aware by the Court that its meetings were subject to the Right to Know Law. Had the body known this, it could have conducted the discussion with counsel outside of a formal meeting because consultation with legal counsel does not constitute a “meeting” under the law. RSA 91-A:2, I(b). No members of the public were present at the meeting. During the meeting, the public body had a conversation with its attorney for the purpose of obtaining legal advice and assumed it was confidential because no one outside of the privilege was present. The issue was whether the portions of the minutes regarding the conversation with the attorney were protected by the attorney-client privilege.

Communications between attorneys and their clients for the purpose of obtaining legal advice are protected under the attorney-client privilege. Such communications fall within the exemption for confidential information, and are not subject to disclosure to the public. The Court said, “The ultimate touchstone is the speaker’s reasonable expectation that the communications were made in confidence.” In this case, the fact that the meeting occurred in a public place did not destroy the privilege because no members of the public actually heard the conversation. Had members of the public been present, the conversation could have progressed differently.

Public bodies should use caution, however, when speaking with their attorney. Relying on the absence of the public is not the best practice. Since consultation with legal counsel is not a “meeting” under the Right to Know Law, the better practice would be to formally recess or end the public meeting so that it is clear the public may not attend and then discuss legal advice with the attorney. No minutes are required for a legal consultation that is not a “meeting.”

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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