Consultation with Legal Counsel Requires a Two-Way Conversation with the Attorney

Ettinger v. Madison Planning Board
Ettinger v. Madison Planning Board
No. 2010-688
Thursday, December 8, 2011

“Consultations with legal counsel” are not considered “meetings” under RSA Chapter 91-A, New Hampshire’s Right to Know Law. RSA 91-A:2, I(b). This is significant because gatherings which are not “public meetings” do not have to follow the ordinary requirements for notice, minutes and public access. This case explores for the first time the boundaries of what a “consultation with legal counsel” is.

The public body (in this case, a planning board) gathered in private to read and discuss emails from its attorney, a memorandum summarizing legal advice relayed over the telephone to the board’s administrative assistant, and letters from the abutters’ attorney. The Court’s opinion indicates that simply reading the materials as a group (without discussion) was permissible, but a discussion of those materials among a quorum of the board was problematic.

Finding that a “consultation” requires a two-way conversation, the Court held that a consultation with legal counsel does not include a discussion among a quorum of a public body of a legal memorandum prepared by or at the direction of the body’s attorney, unless the attorney is available at the time of the discussion. At the least, the body must have the ability to have a contemporaneous exchange of words and ideas with the attorney. This means that, when counsel is not immediately available for consultation, consideration or discussion of the advice of counsel may only take place in a public session or in a properly-held nonpublic session (where one of the specific reasons for a nonpublic session under RSA 91-A:3 applies).

The Court also addressed the interaction between the Right to Know Law and the attorney-client privilege more generally. A client may refuse to disclose confidential communications from the attorney made for the purpose of facilitating legal advice. Written legal advice is generally considered exempt from disclosure as a “confidential” governmental record under RSA 91-A:5 so long as it remains subject to attorney-client privilege. However, when a public body discusses that advice, it may only do so in either a public meeting (at which point the advice discussed is no longer privileged), or a nonpublic session in the limited situations that are allowed. For example, if the written advice relates to litigation pending or threatened in writing against the municipality, a discussion may take place in nonpublic session even if the attorney is not present. RSA 91-A:3, II(e).