When a public board in North Carolina wants to talk to its own retained attorney about a contract dispute the attorney was personally involved in, can the board legally close the meeting to the public, and can board members talk among themselves during that closed session?
Plain-English summary
A public body in North Carolina wanted to discuss an anesthesia-contract dispute with the lawyer it had retained on the matter. The lawyer had been personally involved in the contract negotiations. Two procedural questions came up under the Open Meetings Law: could the board close the meeting to consult with the lawyer, and could individual board members talk to each other during that closed session?
The AG said yes to both.
G.S. § 143-318.11(a)(3) permits a closed session "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." But the exception is not a blanket license to go behind closed doors any time a lawyer is in the room. The closed-session privilege exception only applies where the four common-law elements of attorney-client privilege are present:
- There must be an actual attorney-client relationship between the public body and the attorney.
- The communications must concern legal advice in the course of the professional employment.
- The communications must be confidential.
- The privilege must not have been waived.
If any of those elements is missing, the privilege does not exist and the closed-session exception cannot be used. The statute also explicitly bars closing a meeting that would otherwise be open just because a lawyer happens to be participating, and bars discussion of "general policy matter" in the closed session even if a lawyer is present.
In the situation the AG analyzed, all four elements were met. The attorney was retained by the Board at the time of the privileged communications, and there was no indication of waiver. So the Board could properly close the session to consult its counsel about its counsel's prior involvement in the anesthesia-contract matter.
On the second question (whether the board members could talk to each other during the closed session), the AG took a practical view. It would be "highly impracticable" for the Board to obtain legal advice from its lawyer without discussing the advice among themselves. The closed-session exception necessarily encompassed both the attorney-board communication and the inter-member discussion of what the attorney said. The board members could not effectively consult their attorney as a body if they were forbidden to talk to each other while doing so.
Currency note
This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. § 143-318.11 has been amended since 1997 but the closed-session attorney-client exception structure has remained recognizably similar. The case law on what counts as "general policy matter" (which cannot be discussed in closed session even with counsel) has continued to develop. Current boards considering a closed-session consultation should re-check the statute's current text and the leading appellate cases.
Background and statutory framework
North Carolina's Open Meetings Law starts from a strong presumption that public bodies meet in public. Closed sessions are the exception, narrowly authorized for specific purposes listed in G.S. § 143-318.11. The attorney-client exception in subsection (a)(3) reflects an attempt to balance two competing public interests: transparency (the public's right to see how its business is conducted) and effective legal representation (the public body's need for candid legal advice, which requires confidentiality between client and lawyer).
The statute's drafters built the balance with two guardrails. First, the privilege exception applies only when genuine attorney-client privilege exists, not whenever a lawyer is present. That stops boards from using their lawyer as a closed-session shield. Second, "general policy matter" is excluded even when a lawyer is present. So a board cannot debate broad policy choices in closed session simply because the policy choice has legal implications. The closed-session attorney consultation is for specific legal advice on specific matters within an attorney-client relationship.
The 1997 opinion focused on the first guardrail. The Board had been worried whether the privilege actually attached when the attorney was personally involved in the underlying contract matters. The AG confirmed that personal involvement did not destroy the privilege; what mattered was whether the attorney was retained by the Board (yes), whether the communications were for legal advice (yes), whether they were confidential (yes), and whether the privilege had been waived (no). The lawyer's prior role as an actor in the contract negotiations did not change the privilege analysis.
The inter-member-discussion answer reinforced a common-sense reading of the statute. Closing a meeting "to consult" with a lawyer presupposes that the body is, in fact, consulting as a body. A board cannot consult as a body without exchanging views among its members. The closed-session exception therefore allows the necessary inter-member dialogue.
Common questions
Can a board close the entire meeting just by inviting a lawyer?
No. The lawyer's presence alone does not justify a closed session. The board needs to be specifically consulting the lawyer about legal advice within an attorney-client privilege, and the closed portion of the meeting has to be confined to that purpose.
What about "general policy matter"? Can the board discuss broader implications in closed session?
The statute expressly excludes "general policy matter" from the attorney-client closed session. So even if a lawyer is present, the board cannot use the closed session to debate broader policy choices. Only the specific legal advice and immediately related discussion.
Does the lawyer have to actually speak for the closed session to be valid?
The exception applies when the body is "consulting" with the attorney. That implies a back-and-forth, but it does not require continuous lawyer speech. The board can ask questions, the lawyer can answer, and the members can discuss the answers among themselves. What it cannot become is a closed policy debate with the lawyer in the room as a fig leaf.
What about a city attorney who is a city employee, not "retained"?
The statute covers both attorneys "employed or retained" by the public body. So a salaried in-house attorney with the same client relationship can also trigger the closed-session exception, on the same conditions.
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