Attorney-Client Privilege . . . Understanding the Relationship Between Elected Officials & Township Solicitor. . . Where Does that Leave the Residents?

I know that many residents in the audience at the February 8 Board of Supervisors Meeting were confused and frustrated when they would pose specific questions to our elected officials and receive no response.  The supervisors would turn to the Township Solicitor Tom Hogan for an opinion on a legal question and he would say that he could not answer, invoking attorney-client privilege.  In conversation with residents since the meeting, there has been much discussion on the attorney-client privilege shared between Mr. Hogan and the supervisors.  I know Tom Hogan personally; he’s one of the good guys and I need to believe that he would have given the residents his opinion (if permitted).  But the fact remains that the public has legal questions in regards to St. Davids Golf Club, the return of the escrow, precedent set by the vote, ongoing liability to the township and its residents, etc. 

If we cannot receive answers from our elected officials or township solicitor, where do we take our unanswered questions? Do community members have to hire their own attorney to receive answers?

I was greatly interested to received the following information from a reader, JudgeNJury on the subject of attorney-client privilege. I do not know the identity of this reader, but I am guessing that he/she could be a municipal attorney. An interesting read.

JudgeNJury 2010/02/10 wrote:

Under an opinion issued by the Pennsylvania Supreme Court on Jan. 29, it is far from clear that Hogan’s invocation of attorney-client privilege is correct. A link to a detailed article discussing the case follows, but this quote from the article is the main point: “The court issued a per curiam order in Nationwide v. Fleming Friday, upholding a Superior Court ruling that attorney-client privilege only applies to information given to the attorney by the client, not the other way around.”

(http://www.law.com/jsp/article.jsp?id=1202441905939&Pa_High_Court_Justices_Cant_Agree_on_AttorneyClient_Privilege_Dispute).

In other words, there is a good argument to be made that the Supervisors can invoke the privilege to refuse to answer questions about what they told Hogan, but Hogan cannot invoke the privilege to refuse to answer questions about what he told the Supervisors. Personally, I think the court’s decision is absurd. But the law is the law.

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10 Responses

  1. Pattye..

    Here is a link that may shed light on how attorney-client privilege works in a governmental context:

    http://bit.ly/c4X4i3

    In this case, RPC 1.6/1.13 applies (1.6 is privilege between attorney and an individual and 1.13 deals with organizational clients:

    Comment 2 states: “When one of the constituents of an organizational client communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6.”

    ———————————————————-

    So…looking at the rule, the question for Tom is whether or not Kampf communicated with Tom as to his [Kampf’s] opinion of whether the the St. David’s vote, process and procedure was legal. If Kampf did – then it would be privileged. If Kampf did not, then it is not privileged. Perhaps that needs to be clarified at the 2/22 meeting.

    As to Olson ,who will be at the 2/22 meeting, it may be more difficult, if not impossible to hide behind privilege. Olson has already stated that he had conversations with St. David’s. The quotes by the St. David’s president contradict that assertion. None of those communications are privileged, and therefore, privilege cannot be asserted.

    Note – when I asked EJ why she voted the way she did, she may have spoken to Tom about that. However, she did not invoke privilege the way Kampf did. Privilege belongs to the client. If a supervisor wants to answer a question he/she can. The lawyer can do all he/she can to advise. But at the end of the day, it is client’s (individual supervisors) decision.

    Note… discussions between supervisors are not privileged. For example, discussions between Kampf, Lamina and/or Olson – outside the presence of Tom would not be privileged. So, on 2/22, we can ask Olson if he asked Kampf if the deal was legal. Kampf can look to Tom all day….privilege cannot be invoked. Olson may still choose to no answer. It would make for a real youtube moment.

    HTH..

    • JP is correct that communications from Supervisors to the Board’s lawyer made for the purpose of seeking legal advice are privileged. However, my recollection of the meeting (I’ll have to watch it again to verify) is that citizens were NOT asking the Supervisors to disclose what they said to Hogan. Rather, the questions were more along the lines of “Isn’t the Board required to follow this or that procedure?” or “Is there anything the Board can do to undo this vote?” In response, Hogan invoked the attorney-client privilege and the Supervisors refused to answer the questions. But if, for instance, Hogan told the Supervisors that the St. David’s vote violated the Home Rule Charter or the Administrative Code, there is a good argument to be made under the rule set out in the Nationwide opinion that those communications — FROM Hogan TO the Supervisors — are not privileged.

      I intend no criticism of Hogan through any of this. Had I been sitting in his chair, I probably would have done the same thing given that the law here seems to be in a state of flux.

  2. It seems pretty clear that Tom Hogan invoked attorney-client privilege so many times during the 2/8 BOS meeeting because he knew answering truthfully would expose his clients and the township to liability.

    Hogan was painfully aware of the legal implications of the supervisors’ St. David’s vote and the fact that it set precedent for future land development deals. Lawsuits and lost leverage for the township are looming, and he did not want to do anything to make matters worse.

    But Solicitor Hogan sure did come off as shifty and in league with his clients to keep citizen questioners confused and in the dark. on Monday night.

    Any observer would conclude that there has been plenty of wrongdoing that needs covering up.

  3. From Tredyffrin’s Strategic Plan

    TOWNSHIP OPERATING PRINCIPLES

    We will do what needs to be done for our Township. Residents of Tredyffrin Township should not have to think or worry about the services they receive, rather they should be able to go about their lives while we maintain the normalcy they take for granted.

    Anybody else thinks this is kind of freaky?

  4. This language is actually codified someplace? Please tell us where….it’s creepy more than freaky. Sounds like something Paul Olsen might have authored. “There, there people….don’t worry your little heads about this important business we can handle.”

    • I just went to the township website and found the Tredyffrin Township Strategic Plan. Here is a link to Chapter 2: Where Do We Want to Be. Township Operating Principles are pgs. 34 – 36. On pg. 34, you will find:

      DEPENDABLE: We will do what needs to be done for our Township. Residents of Tredyffrin Township should not have to think or worry about the services they receive, rather they should be able to go about their lives while we maintain the normalcy they take for granted. (This section of the Strategic Plan refers to the township employees rather than our elected officials.)

      However, take a look at link to Chapter 1:Where We Are.
      It is interesting to note on pg. 18 the list of citizens concerns (I think the Strategic Plan was 2003) and look at item #3 Pedestrian access in the form of trails, sidewalks and pathways and #5 Local government and its role in land use, planning and communication.

  5. I guess Paul Olson must have been MIA when the Strategic Plan was put together, especially as it pertains to sidewalks.

  6. Although I plan on doing more research into this, there is an important point to keep in mind. Attorney/Client Privilege does NOT create a privilege w/r/t the underlying facts of a discussion. For example, an opinion discussed between Mr. Hogan and Mr. Kampf may be protected in relation to the legalities of what occurred. However, a question about who Mr. Olson spoke to at St. David’s and what was said in that conversation would not be covered. It makes perfect sense – the facts are the facts, they are not legal advice being given. While Mr. Hogan could not disclose the information obtained during representation b/c of Rule 1.6, the client (here a supervisor) cannot invoke privilege in regards to the actual facts. At least that is my understanding, John or JudgenJury may be able to elaborate.

    Therefore, if Paul is asked direct questions surrounding the factual circumstances of this release, an invocation of A/C Privilege would be an incorrect response.

    • Hi Roger…

      Yes, you are correct. The big thing to keep in mind is that privilege only extends to discussions between a supervisor and the solicitor when the supervisor is acting in his/her capacity as an elected official. Also, a supervisor cannot have conversations with a third party, and then relay those conversations to the solicitor for the purpose of making that “subject matter” privileged. This is why questions have to be framed very carefully.

      Rules of Professional Conduct for lawyers in PA are codified here:

      http://www.pacode.com/secure/data/204/chapter81/chap81toc.html

      • JP makes a good point about framing questions appropriately. During depositions, when I anticipate that the witness will attempt to duck the question by invoking the privilege, I often will frame the question along these lines: “Without telling me about any conversations you had with your lawyer, tell me about . . .” Or, if the defending lawyer raises the privilege after I’ve asked the question, I sometimes will respond with something like: “I am not asking you about conversations you had with your lawyer.” That takes the privilege issue off the table because, if I am explicitly saying that my question does not require the witness to disclose conversations with a lawyer, then I am, by definition, not asking for privileged information.

        Of course, unlike a deposition, the Supervisors are not required to answer the questions you pose. They always could refuse to answer. But that wouldn’t look very good, would it?

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