Can an attorney in the Tennessee General Assembly's Office of Legal Services be forced to reveal which legislator asked for particular language in a bill?

Subject

Opinion No. 11-60, Duties of Attorney in Office of Legal Services, July 22, 2011

Plain-English summary

Senator Mae Beavers asked whether an attorney in the Tennessee General Assembly's Office of Legal Services has to reveal the name of the legislator who requested specific language in a bill, resolution, or amendment. The Office of Legal Services is the in-house drafting shop for the legislature. Senators and representatives go there to have bills drafted. The question was whether outsiders (journalists, lobbyists, opposition researchers, or members of the public) can pry the drafter's clientele list out of the office.

The AG said no. The statutes creating the office contain two layers of protection. The first is Tenn. Code Ann. § 3-12-105, which generally treats office records as public, with two enumerated exceptions: (a) intraoffice memoranda from the director or staff, and (b) work papers and correspondence (including email) with any person receiving service from the office.

The second, and more important, layer is Tenn. Code Ann. § 3-12-106. That section says the director and legal staff "shall maintain the attorney-client relationship with each member of the general assembly with respect to communications between the member and the attorney, except as otherwise provided by the rules of either house of the general assembly." Subsection (b) makes "all materials arising out of this relationship including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by an attorney" exempt from the Public Records Act, again unless either house's rules say otherwise or unless "released by the member for whom the material was prepared."

This second layer is more protective than ordinary attorney-client privilege analysis because the statute itself creates the protection by name. Anyone asking for a drafter's communications gets pointed to § 3-12-106. As of the date of the opinion, neither the House nor the Senate had adopted rules cracking open the privilege.

The practical consequence: the identity of the legislator who requested a particular bill or amendment is part of the protected attorney-client communication. So is the substance of the draft, the analysis, and any memoranda. None of it is producible under the Public Records Act unless the legislator releases it (most often by introducing the bill and putting their name on it) or unless the chamber adopts a rule lifting the privilege.

The opinion also notes that the result holds independent of the broader common-law and ethical attorney-client privilege framework, which would further protect the same communications under common law and under Supreme Court Rule 8, RPC 1.6.

Currency note

This opinion was issued in 2011. 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.

House and Senate rules can change with each new General Assembly. Anyone testing whether a particular drafting communication is producible today should check the current rules of both chambers in addition to the current text of Tenn. Code Ann. §§ 3-12-101 to 3-12-106. The statutory privilege is sticky, but a chamber rule can carve into it.

Background and statutory framework

The office and its duties. The Office of Legal Services is created under Tenn. Code Ann. §§ 3-12-101 et seq. Its duties include preparing and assisting in the preparation of proposed legislation and amendments (subsection 2) and providing legal opinions to members on request (subsection 3).

The general public-records rule for the office. Tenn. Code Ann. § 3-12-105(a) makes office records public, with two exceptions: "(1) Intraoffice memoranda made by the director of the office of legal services or the director's staff; and (2) Work papers and correspondence, including correspondence by electronic mail, with any person receiving service from the office of legal services." Subsection (b) says those exempt papers "may become public records whenever the director of the office of legal services or the general assembly shall so order."

The specific attorney-client provision. Tenn. Code Ann. § 3-12-106(a) requires the director and legal staff to "maintain the attorney-client relationship with each member of the general assembly with respect to communications between the member and the attorney, except as otherwise provided by the rules of either house of the general assembly." Subsection (b) keeps "all materials arising out of this relationship including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by an attorney" outside the Public Records Act, "except as otherwise provided by the rules of either house of the general assembly or when released by the member for whom the material was prepared."

Why § 3-12-106 is special. State ex rel. Maner v. Leech, 588 S.W.2d 534, 539 (Tenn. 1979), holds that a specific provision takes priority over general provisions. § 3-12-106 is more specific than § 3-12-105 about communications between drafters and legislators. So the only way the privilege can be lifted is by a House or Senate rule, not by the more general "order from the director or the General Assembly" route in § 3-12-105(b).

Background attorney-client framework. Even outside the statute, the attorney-client privilege exists at common law, by statute, and as an ethical duty under Tenn. Sup. Ct. Rule 8, RPC 1.6. The Tennessean v. Tennessee Department of Personnel, 2007 WL 1241337 (Tenn. Ct. App. April 27, 2007), describes that broader framework. The AG noted that the statutory privilege was sufficient to answer the question, so it did not need to do detailed common-law privilege analysis.

Common questions

So journalists can't FOIA-request the legislator who requested a specific amendment?

Not from the Office of Legal Services. The drafting attorney is statutorily bound to confidentiality. The legislator is, of course, free to publicly take credit for an amendment (and very often does). The protection is the drafter's lips, not the legislator's.

Does this mean lobbyists can quietly draft bills through the Office?

The Office of Legal Services serves members of the General Assembly. Lobbyists are not members. But a lobbyist's input can reach the drafter through a legislator who relays it. The protection runs from drafter back to legislator; it does not reach independent lobbyist activity.

Can the legislator release the materials?

Yes. § 3-12-106(b) expressly allows release by "the member for whom the material was prepared." So if a senator wants to show a draft to a reporter or post it publicly, the senator may do so. The point is that the choice belongs to the legislator-client, not to the drafter or to a third-party records requester.

Could the General Assembly remove the privilege entirely?

Yes, by enacting a different statute, and either house can carve into the privilege by rule. The AG noted that as of 2011 neither chamber's rules cut into § 3-12-106.

Does the privilege apply to communications between the Office of Legal Services and the public, lobbyists, or staff of other agencies?

The statute as written protects communications "with each member of the general assembly." Communications with non-members fall outside that specific protection, though they may still fit within § 3-12-105's "work papers and correspondence with any person receiving service from the office" exception or the broader common-law privilege depending on the facts.

Is this different from how the Tennessee Attorney General's own legal advice to state agencies is handled?

Yes. The AG's office has its own statutory and common-law protections, with somewhat different contours. This opinion addresses only the Office of Legal Services within the General Assembly, not the AG-to-agency relationship.

Citations

• Tenn. Code Ann. §§ 3-12-101 et seq. (Office of Legal Services)
• Tenn. Code Ann. §§ 3-12-105, 3-12-105(a), 3-12-105(b)
• Tenn. Code Ann. §§ 3-12-106, 3-12-106(a), 3-12-106(b)
• Tenn. Code Ann. title 10, chapter 7, part 5 (Public Records Act)
• Tenn. Sup. Ct. Rule 8, RPC 1.6
• State ex rel. Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979)
• The Tennessean v. Tennessee Department of Personnel, 2007 WL 1241337 (Tenn. Ct. App. April 27, 2007)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-060.pdf

Original opinion text

July 22, 2011
Opinion No. 11-60
Duties of Attorney in Office of Legal Services

QUESTION

The Office of Legal Services is created and operates under Tenn. Code Ann. §§ 3-12-101, et seq. Is an attorney in that Office required to reveal the name of a legislator who requested certain language in a bill, resolution, or amendment?

OPINION

No. Under Tenn. Code Ann. § 3-12-106(a), the director and members of the legal staff of the Office of Legal Services must maintain the confidentiality of communications with each member of the General Assembly, except as otherwise provided by the rules of either House. The current rules of the House and Senate do not provide otherwise.

ANALYSIS

This opinion addresses the duties of an attorney in the Office of Legal Services. The question is whether such an attorney must reveal the name of the legislator who requested particular language in a bill, resolution, or amendment.

The Office of Legal Services is created and operates under Tenn. Code Ann. §§ 3-12-101, et seq. The Office, among other duties, prepares and assists in the preparation of proposed legislation and amendments, and provides legal opinions upon request to members of the General Assembly. Tenn. Code Ann. § 3-12-101(2) and (3). Tenn. Code Ann. § 3-12-105 differentiates between the Office's records which are public, and those records which are not, stating:

(a) All books, papers, records, and correspondence of the office of legal services pertaining to its work shall be kept in the office of legal services and all such materials are public records except:

(1) Intraoffice memoranda made by the director of the office of legal services or the director's staff; and

(2) Work papers and correspondence, including correspondence by electronic mail, with any person receiving service from the office of legal services.

(b) Such papers and correspondence may become public records whenever the director of the office of legal services or the general assembly shall so order.

Tenn. Code Ann. § 3-12-106 then specifically addresses the privilege afforded communications between the Office's Director/legal staff and each member of the General Assembly, as well as all materials arising out of this relationship. Tenn. Code Ann. § 3-12-106 states:

(a) The director of the office of legal services and the director's legal staff shall maintain the attorney-client relationship with each member of the general assembly with respect to communications between the member and the attorney, except as otherwise provided by the rules of either house of the general assembly.

(b) All materials arising out of this relationship including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by an attorney are not public records nor subject to the provisions of title 10, chapter 7, part 5, except as otherwise provided by the rules of either house of the general assembly or when released by the member for whom the material was prepared.

Tenn. Code Ann. § 3-12-106 thus establishes a specific statutory privilege for communications and related material between the Office's Director/legal staff and members of the General Assembly. This privilege constitutes an additional exception to the general rule that materials of the office of legal services are public records, subject to certain enumerated exceptions, under Tenn. Code Ann. § 3-12-105. Furthermore, the specific privilege granted the communications and related material under Tenn. Code Ann. § 3-12-106 may only be waived as set forth in Tenn. Code Ann. § 3-12-106(a), i.e. by the rules of either house of the general assembly, and may not be made public pursuant to the process for other non-public records set forth at Tenn. Code Ann. § 3-12-105(b). See, e.g., State ex rel. Maner v. Leech, 588 S.W.2d 534, 539 (Tenn. 1979) (noting that a special provision takes priority over general provisions within the statute).

In sum, under the statute creating the Office of Legal Services, the director and the legal staff must maintain the attorney-client relationship with each member of the General Assembly with respect to communications between each member and the attorney, unless the rules of either House provide otherwise. The current rules of the House and Senate do not provide otherwise.

Given this conclusion, it is not necessary to address the extent to which the broader provisions governing the attorney-client privilege as developed by statute and law would apply to these communications. The attorney-client privilege is rooted in the common law, is codified in Tennessee statutes, and is part of the ethical duty of a lawyer under rules promulgated by the Supreme Court. The Tennessean v. Tennessee Department of Personnel, 2007 WL 1241337 (Tenn. Ct. App. April 27, 2007). Under Supreme Court Rule 8, Rules of Professional Conduct 1.6, a lawyer generally may not reveal information relating to the representation of a client unless the client consents.

ROBERT E. COOPER, JR.
Attorney General and Reporter

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Mae Beavers
State Senator
7 Legislative Plaza
Nashville, Tennessee 37243-0223