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