May a North Carolina public board close a meeting to consult retained counsel about anesthesia contracts, and may its members discuss the advice with one another during that session?

Plain-English summary

A public board's retained attorney asked whether the board could close a meeting to discuss the attorney's involvement in anesthesia-contract matters, and whether members could talk with one another during that session. The Attorney General's office said the board could do both on the facts presented, after a proper motion.

G.S. § 143-318.11(a)(3) permitted a closed session to consult an employed or retained attorney in order to preserve the attorney-client privilege. The opinion explained that the exception required an attorney-client relationship, confidential communications concerning legal advice within the professional engagement, and no waiver of the privilege. It said those components appeared to be present: the attorney was retained when the privileged communications occurred, and there was no indication of waiver. The opinion did not analyze whether the attorney's involvement in the underlying contract negotiations changed the result.

The opinion also said board members could discuss the attorney's advice among themselves during the closed session because it would be highly impracticable to obtain legal advice as a board without doing so. It emphasized that merely having an attorney present does not justify closing an otherwise open meeting, and the statutory exception does not permit a general policy discussion behind closed doors.

Currency note

This opinion applied the Open Meetings Law in 1997. Check its current text and the facts of a proposed consultation before closing a meeting today.

Common questions

Is a lawyer's presence enough to close a public meeting?

No. The opinion said the consultation must fall within an actual attorney-client privilege and the statutory exception; the presence of a lawyer alone is insufficient.

May board members discuss the legal advice with each other during the closed session?

The opinion said yes in the circumstances presented. It treated their discussion as part of the board's practical ability to obtain and consider the attorney's advice.

Did the opinion decide that a lawyer's role in negotiating a contract never affects privilege?

No. It applied the privilege requirements to the stated situation but did not separately analyze any effect of the attorney's earlier role in the contracts.

Source

• Landing page: https://ncdoj.gov/opinions/closed-session-to-consult-with-an-attorney-employed-or-retained/

Citations

• N.C.G.S. § 143-318.11(a)(3)
• 97 C.J.S. Witnesses § 283 (common-law attorney-client privilege)

Original opinion text

• Can the Board, upon proper motion, go into closed session to have discussion with [you], as legal counsel, concerning [your] involvement in the anesthesia contract matters and also continue to maintain the attorney-client privilege between [you]?
• If so, during such discussion, can the individual members of the Board participate in a dialogue between themselves, as well as [you], concerning matters that may be brought up during the discussion in respect to the anesthesia contracts?

N.C.G.S. § 143-318.11(a)(3) provides in pertinent part that:

[i]t is the policy of the this State that closed sessions shall be held only when required to permit a public body to act in the public interest as permitted in this section. A public body may hold a closed session and exclude the public only when a closed session is required : . . . To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matter may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. While the Open Meetings Law permits a board to hold a closed session in order to consult with an attorney retained by the public body, it does not permit a public body to close a meeting for any discussion with an attorney. The exception is limited by the scope of the attorney-client privilege as defined by common law. Thus, there must be an attorney-client relationship between the public body and the attorney; the communications that are the subject of the closed session must concern legal advice in the course of the professional employment; the communications must be confidential; and the public body must not have waived the privilege. See generally, 97 C.J.S Witnesses, § 283. If any of these requirements are not present, the privilege does not exist and exception (a)(3) may not be used by a public body to go into closed session. Applying this analysis to your situation, it appears that all of the necessary components are in place to establish that the attorney-client privilege exists between you and the Board. You were retained by the board at the time the privileged communications were made, and there is no indication that the Board has, by word or deed, waived the privilege. Therefore, we believe, that upon proper motion, the Board may go into closed session to have a discussion with you concerning your involvement in the anesthesia contract matters.

You also asked if the individual Board members may discuss among themselves during the closed session, matters concerning the anesthesia contracts. Given that it would be highly impracticable for members of the Board to obtain legal advice from you without discussing it among themselves, we believe that the Board may participate in discussions concerning your involvement in the anesthesia contract matters in the context of the closed session.

Andrew A. Vanore, Jr. Chief Deputy Attorney General

T. Brooks Skinner, Jr.
Associate Attorney General