Zen Privilege: If A Lawyer Speaks and No One Is Around To Hear It, Is It Privileged?

Litigation Zen Masters take note: The New Hampshire Supreme Court has answered that mind-numbing question: if a lawyer speaks in a public room but no one (other than his client) can hear him, is the statement privileged? The answer appears to be yes. The Supreme Court ruled that the New Hampshire Local Government Center could refuse to redact the minutes for 14 meetings over a 10-year-period because there were no third parties present during statements by counsel.

The fire fighters argued that the redacted portions were not privileged because the oral communications of LGC’s counsel occurred during meetings that were open to the public under the open meetings law. Yet because there were no members of the public present at the meeting, the Court ruled that “[b]ecause the ultimate touchstone is the speaker’s reasonable expectation that the communications were made in confidence, the fact that the meetings were technically open to the public under RSA 91-A:2, I, is of no import.”

I am a bit surprised by the ruling since the meeting itself was classified as public and subject to public inquiry. I consider it a much closer question while I can certainly understand the position of the Court. For me it depends on the right of the public (including the media) to file for information on what was discussed at the meeting to determine the reasonable expectations of counsel and this client.

Here is the opinion: Firefighter Opinion

Source: ABA Journal

12 thoughts on “Zen Privilege: If A Lawyer Speaks and No One Is Around To Hear It, Is It Privileged?

  1. If the meeting were recorded or transcribed, and the counsel knew this was occurring, than I believe the communications were not privileged.

  2. Anonymously yours is exactly right. I heard of a lawyer who advised his client to deny some damaging things. The mic was left on from the previous court drama. The lawyer got disbarred and the mic got snapped off at the base by the next twenty sets of lawyers who were left in the room supposedly alone.

  3. Sometimes judges leave the recording monitors to hear the other side communications……

  4. This is the sound of five justices making a prime facie silly decision.

    It sounds a lot like one hand clapping.

  5. While Maryland ruled in about 2006 or so that a lawyer could divulge client confidences once he no longer represented the client! In general, I think the decisions just show what the courts want to do in any particular case, all result-driven. Mostly dishonest, and transparently so.

  6. One of the critical facts in the case is that the requested meeting minutes were from a time when the organization did not believe it was subject to the state’s right-to-know law and had a legal opinion to that effect. Since 2010, when the state Supreme Court decided the organization should be considered a public entity, all legal advice is provided at a non-meeting (allowed under the law) or during a non-public session.

  7. “The Supreme Court ruled that the New Hampshire Local Government Center could refuse to redact the minutes”

    I’m confused. Or maybe I don’t know what redact means.

    From the rest of the story, I would think the the NHLGC wants to redact (edit by removing attorney statements) and the judge agrees.

    Considering that the info has been in the minutes and publicly available for 10 years, isn’t the cat out of the bag? If the NHLGC considered the comments to be privileged, why didn’t they recognize it at the time by not putting them in the minutes of the public meeting? I expect it has more to do with what the firefighters want to use the minutes for.

  8. Common sense would seem to dictate that all things that go on at a public meeting should indeed be open to the public,even if there is no public present. I can see the courts reasoning, but I think it is time for the legislature to step in and make it open in all aspects even if the public is not there.

  9. I’m not a lawyer but since someone could have come to the meeting at any point, there was, it seems to me, no expectation of privacy but expectation of third parties.

  10. Because the ultimate touchstone is the speaker’s reasonable expectation that the communications were made in confidence, the fact that the meetings were technically open to the public … is of no import,” the court states in its written opinion …

    “As the superior court aptly observed, ‘The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation.’ ”

    Makes more sense that way.

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