Amicus Curiae Brief — Baxter v. Reed

oupreme Court, U.S.

2.3, 2

JUL” 6 1998

No. 97-1966 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

DAVID BAXTER, Individually, and

the CITY OF MURFREESBORO,

Petitioners,

V.

JOHN W. REED and HENRY SHARBER,

Respondents.

On Petition For Writ OF CERTIORARI

To Tue Unitep STATES CourRT OF APPEALS

For Tue Sixth Circuit

AMICUS CURIAE BRIEF IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

BY DAVID BAXTER, and THE CITY OF

MURFREESBORO, TENNESSEE

Puituip A. Nosiett (BPR #10074)

Counsel of Record

RANDALL L. NELSON (BPR #1307)

400 PIONEER BANK BUILDING

CHATTANOOGA, TENNESSEE 37402

(423) 757-5338

Attorneys for Amicus Curiae Petitioners

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED

Does the attorney client privilege _ protect

communications between a city attorney and two city

councilmen, the city manager, and the city fire chief, which

involve pending litigation and possible future litigation against

the public body?

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TABLE OF CONTENTS

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I. The Petition Should Be Granted Because The

Ruling Below Conflicts With The Rationale of

This Court in Swidler & Berlin, et al. v.

United States And Places Municipal Attorneys

In An Impossible Privilege Position When

Meeting With Agents Of A Municipality In

Their Official

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TABLE OF CITATIONS

Cases Cited:

Cooper v. Williamson County Board of Education,

746 S.W.2d 176 (Tenn. 1987),

cert. denied, 500 U.S. 916 (1991) ........ Ae

Fausek v. White,

merian tte Oe Ce. 1) 8 7

Fisher v. United States,

SOE SOME 6 5 se 4

In Re: Grand Jury Subpoena (United States vy. Doe),

oeee me ser ee Ge. 1 ee 7

In Re: Grand Jury Subpoena Duces Tecum,

ar eee Gm, We SS 8

In Re: Grand Jury Subpoena Duces Tecum

(Office of President v. Office of

Independent Counsell),

112 F.3d 910 (8" Cir.) cert. denied,

Peet RTs Pe

In Re: Sealed Case,

121 F.3d 729 (C.A. D.C. Jd ERP eet ahr 8

Jaffe v. Redmond,

chy pltccc dle 2 6 2, | BRPMa rar aetariesmectcetE Sr ca neoeen 4

Reed v. Baxter,

134 F.3d 351 (6" Cir. ee ee ee Pee Fay

Swidler & Berlin, et al. v. United States,

oo 8 , 1998 WL 333019 (1998) ....4,9

Upjohn Company vy. United States,

Ne Ai See CEPR? oes CaN ee Cae 4

Rule Cited:

Federal Rule of Civil Procedure 26(b)(3) .........2,4

Current Model Rules of Professional

Responsibility of the American Bar

PAI Tr 0 ee a as ee ee ee 6

Current Model Rules of Professional

Responsibility of the American Bar

Pe I 8g i ee a ee re eee 6

Current Model Rules of Professional

Responsibility of the American Bar

NS aS RR rn ee ary oy ee re ae 6

an ae’

D.C. Bar, Legal Ethics Comm. Opinion,

SOO SIRT ec eG EES ee 6

Amicus Curiae Petitioners, Randall L. Nelson, City

Attorney, and The City of Chattanooga respectfully urge the

issuance of a Writ of Certiorari as requested by David Baxter

and the City of Murfreesboro to review the judgment of the

United States Court of Appeals for the Sixth Circuit in this

important case regarding the parameters of attorney client

privilege which directly apply to all governmental and

municipal attorneys. Consent to file this brief by the parties

has been obtained pursuant to Supreme Court Rule 37(2).'

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is reported in Reed v. Baxter, 134 F.3d 351

(6" Cir. 1998) and is attached as Appendix A to the Petition

for Writ of Certiorari filed by David Baxter and The C ity of

Murfreesboro.

STATEMENT OF JURISDICTION

The statement of jurisdiction of David Baxter and the

City of Murfreesboro is adopted and incorporated herein by

reference.

Pursuant to Rule 37(6) of the Supreme Court Rules, no

counsel for any party has authored this brief in whole or in part

other than the Amicus Curiae, its members or its counsel and no

monetary contributions have been made by any parties in the

preparation for submission of this brief.

]

RULE INVOLVED

Federal Rule of Civil Procedure 26(b)(3) provides, in

pertinent part:

Subject to the provisions of subdivision (b)(4)

of this rule, a party may obtain discovery of

documents and tangible things otherwise

discoverable under subdivision (b)(2) of this

rule and prepared in anticipation of litigation

or for trial by or for another party or by or for

that other party’s representative (including the

other party’s attorney, consultant, surety,

indemnitor, insurer, or agent) only upon a

showing that the party seeking discovery has

substantial need of the materials in the

preparation of the party’s case and that the

party is unable without undue hardship to

obtain the substantial equivalent of the

materials by other means. In ordering

discovery of such materials when the required

showing has been made, the court shall protect

against disclosure of the mental impressions,

conclusions, opinions, or legal theories of an

attorney or other representative of a party

concerning the litigation.

STATEMENT OF THE CASE

Randall L. Nelson, City Attorney and The City of

Chattanooga as amicus curiae adopt in its entirety and

incorporate by reference herein the statement of case set forth

in the Petition for Writ of Certiorari filed by David Baxter

and the City of Murfreesboro on June 3, 1998, and placed on

this Court’s docket on June 5, 1998.

2

STATEMENT OF FACTS

Randall L. Nelson, City Attorney, and the City of

Chattanooga as amicus curiae adopt in its entirety and

incorporate by reference herein the statement of facts set forth

in the Petition for Writ of Certiorari filed by David Baxter

and the City of Murfreesboro on June 3, 1998, and placed on

this Court’s docket on June 5, 1998.

REASONS FOR GRANTING THE WRIT

I.

The Petition Should Be Granted Because The

Ruling Below Conflicts With The Rationale of This Court

in Swidler & Berlin, et al. v. United States And Places

Municipal Attorneys In An Impossible Privilege Position

When Meeting With Agents Of A Municipality In Their

Official Capacity.

The majority opinion of the Sixth Circuit Court of

Appeals below adopted a position regarding the application of

attorney client privilege in this case which is a matter of

extreme concern to all governmental and municipal attorneys.

Although the common law rule of attorney client

privilege is one of the oldest recognized privileges for

confidential communications, the majority opinion of the Sixth

Circuit below vacated the judgment of the District Court

which had granted a protective order excluding testimony

regarding conversations between the City Attorney, two C ity

Councilmen, the City Manager, and the City Fire Chief. The

effect of the majority opinion may be that municipal attorneys

are not entitled to exercise the attorney client privilege where

3

meetings occur between City Council members and City

administrative department heads in which the City Attorney

gives legal advice and explains settkement discussions

regarding a pending case. This amicus curiae brief strongly

urges the granting of a petition for writ of certiorari in this

case along the lines asserted in the eloquent dissent of Circuit

Judge Nathaniel R. Jones, (See Reed v. Baxter, supra at 358-

360).

This Court has most recently held in Swidler & Berlin,

et al. v. United States, . U.S: _., 1998 WL 333019

(1998) that the attorney client privilege is intended to

encourage “full and frank communication between attorneys

and their clients and thereby promote broader public interests

in the observance of law and the administration of justice.”

Upjohn Company v. United States, 449 U.S. 383, 389 (1981).

In considering whether the scope of attorney client privilege

extended beyond the death of the client, this Court just held

that its interpretation of the privilege’s scope is guided by

“the principals of the common law...as interpreted by the

Court...in light of reason and experience.” Federal Rules of

Evidence, 501; and Funk v. United States, 290 U.S. 371

(1933).

In Swidler & Berlin, supra, this Court clearly

reviewed the rationale behind the privilege and found that

attorney client discussions are privileged because “without the

privilege, the client may not have made such communications

in the first place.” See, Jaffe v. Redmond, 518 U.S. 1, 12

(1996); and Fisher v. United States, 425 U.S. 391, 403

(1976).

Pursuant to Rule 26(b)(3) of the Federal Rules of Civil

Procedure, the petitioners in this case originally moved for

and were granted a protective order against disclosures of the

4

ee ey ee

mental impressions, conclusions, opinions and/or legal

theories of an attorney or other representative of a party

concerning the litigation which were discussed between the

City Attorney, two members of the Murfreesboro, Tennessee

City Council, the City Manager and the City Fire Chief. In

reviewing a motion to quash the subpoenas and for a

protective order, the District Court determined that the

depositions would inquire into a privileged attorney/client

discussion that occurred on December 16, 1992, between the

City Attorney, two City Council members, the City Manager

and the Fire Chief. The District Court also determined that

in the December 16, 1992 meeting, the parties discussed

pending litigation involving the vacancy in the Captain’s

position in the Fire Department and that the Murfreesboro

City Attorney was acting in his capacity as City Attorney

during the meeting.

The majority opinion of the Sixth Circuit Court of

Appeals now creates an impossible client confidentiality

position for attorneys representing governmental entities

which are composed of multiple agents. Due to applicable

Open Meeting Laws elected governmental officials and their

attorneys already have very limited opportunities to receive

confidential legal advice. See T.C.A. § 8-44-101, et. seq.

Even so, discussions between a public body and its attorney

concerning pending litigation have been found not to be

subject to the Tennessee Open Meetings Act. See Cooper v.

Williamson County Board of Education, 746 S.W.2d 176

(Tenn. 1987), cert. denied, 500 U.S. 916 (1991).

Unlike the factual situation discussed by the Eighth

Circuit Court of Appeals in /n Re: Grand Jury Subpoena

Duces Tecum (Office of President vs. Office of Independent

Counsel), 112 F.3d 910 (8" Cir.) cert. denied, 117 S.Ct. 2482

(1997), this is not a situation where the City Attorney shared

5

information with individuals at a meeting who could not be

considered to be his clients. It is of interest that the current

Model Rules of Professional Responsibility of the American

Bar Association proposed as Rule 1.13(E)clearly recognize

that “a lawyer representing an organization may also represent

any of its directors, officers, employees, members,

shareholders, or other constituents, subject to the provisions

of Rule 1.7 and 2.2.

Local governmental representation does not tend to

have as many layers of representation as counsel for the

President and White House legal staff. The identity of the

governmental client has been frequently the subject of

scholarly discussion, usually for conflict of interest reasons.

A recent opinion of the District of Columbia Bar (See, D.C.

Bar, Legal Ethics Comm. Opinion, 268 (1996)), has

concluded that the identity of the government client (like the

identity of the corporate client) is “not primarily a question of

legal ethics,” but rather is a matter to be decided in the first

instance between the lawyer and the person or persons

authorized to speak for the government in the matter, “in

accordance with the general precepts of client autonomy

embodied in Rule 1.2" See also D.C. Bar Formal Ethics

Opinion 95-390. The Model Rules further contain specific

prohibitions against revealing information relating to

representations of a client at proposed Rule 1.6 which do not

except governmental entity clients.

The elements of attorney client privilege within the

Sixth Circuit are as follows: (1) Where legal advice of any

kind is sought; (2) from a professional legal advisor in his

Capacity as such; (3) the communications relating to that

purpose; (4) made in confidence; (5) by the client; (6) are at

his instance permanently protected; (7) from disclosure by

himself or by the legal advisor; (8) unless the protection is

6

waived. See, Fausek v. White, 965 F.2d 126, 129 (6" Cir.

1992).

The distinction of the majority opinion of the Sixth

Circuit Court of Appeals of this case from its earlier decision

in In Re: Grand Jury Subpoena (United States v. Doe), 886

F.2d 135 (6" Cir. 1989) is of extreme concern to

governmental attorneys in Tennessee. Municipal attorneys in

this state have to give advice on a daily basis when requested

by municipal legislators and municipal administrative

officials. It is difficult to understand why such advice is now

held not to be confidential because the interests of the Council

Members and the interests of the City Executives are not

always the same. See Reed v. Baxter, supra at 357.

A municipal attorney giving advice to individuals who

are normally his clients is now put into the impossible

position of determining the viewpoint of each client as to

pending or future litigation before any information may be

deemed to be confidential. Such a broad abolition of the

attorney client privilege for municipal attorneys is not

warranted by /n Re: Grand Jury Subpoena Duces Tecum

(Office of President vs. Office of Independent Counset), supra.

There is no information in this record that any communication

between City Council Members and their attorney in the

presence of City Administrative Officials was not conducted

within the attorney client relationship. Regardless of the

personal interests of Councilman Ross and Bratcher, it is

strongly asserted that such Councilmen were the clients of the

City Attorney when he met with them on December 16, 1992

and as such, any discussions at such meeting were shielded

from disclosure by the attorney client privilege. It is foreign

to the concept of attorney client privilege that individuals with

whom an ongoing attorney client relationship exists in their

representative capacity for the City of Murfreesboro are

7

actually third parties to a discussion with the City Attorney.

It is further strongly asserted that there is a dispute

among the Circuits as to the extent of privilege which is

applicable to a number of confidential communications due to

recent developments interpreting privileges applicable to

Presidential documents and verbal communications. See, /n

Re: Sealed Case, 121 F.3d 729 (C.A. D.C. 1997); and In Re:

Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8" Cir.

1997). As amicus curiae for the petitioners and also as

municipal attorneys constantly forced to make confidential

communications with our clients, it is respectfully submitted

that certiorari should be granted based upon the facts and law

applicable to this case. This is an important matter which

should be decided by this Court based upon the practical

problems in representing municipal clients and their elected

officials by municipal attorneys across this country and not by

analogy based upon the intricate levels of legal representation

available to the President of the United States.

CONCLUSION

This Court has recently upheld the attorney client

privilege in Swidler & Berlin, supra, even after the death of

the client upon the basis that “without the privilege, the client

may not have made such communications in the first place.”

The majority opinion gives little guidelines to any municipal

attorney as to which communications with his clients may be

confidential. As such, the majority opinion deludes the

attorney client privilege of municipal attorneys and directly

conflicts with encouraging full and frank communications

between attorneys and their clients.

Accordingly, amicus curiae petitioners, Randall L.

Nelson, City Attorney, and the City of Chattanooga

8

respectfully urge this Court to grant the petition for writ of

certiorari filed by David Baxter and the City of Murfreesboro.

Respectfully submitted,

/s/

RANDALL L. NELSON,

CITY ATTORNEY

PHILLIP A. NOBLETT,

Special Counsel

Amicus Curiae Petitioners

400 Pioneer Bank Building

Chattanooga, Tennessee 37402

(423) 757-5338