RPVCCA_CC_SR_2014_04_15_03_Policy_Re_Confidentiality_Attorney_Client_Privileged_CommunicationsCITY OF RANCHO PALOS VERDES
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
HONORABLE MAYOR AND CITY COUNCIL MEMBERS
CAROL W. LYNCH, CITY ATTORNEY
APRIL 15, 2014
POLICY REGARDING CONFIDENTIALITY OF ATTORNEY-
CLIENT PRIVILEGED COMMUNICATIONS
REVIEWED: CAROLYNN PETRU, ACTING CITY MANAGE~
RECOMMENDATION
Adopt the attached policy.
BACKGROUND
At the April 1, 2014 City Council meeting, the City Attorney proposed two policies to
address attorney-client privileged communications. The City Council (by a 3-2 vote)
adopted the first policy, as amended, which addresses the City's attorney-client
privilege and the duty to protect attorney-client privileged communications. Due to the
lateness of the hour, the City Council continued the discussion of the second policy to
this meeting.
The second policy addresses the issue of how attorney-client privileged
communications are to be provided to a Council Member who wishes to review such
documents.
As was discussed in the staff report for the April 1st City Council meeting, disclosures of
attorney-client privileged communications to unauthorized persons without the
permission of the City Council, whether inadvertent or intentional, could have potential
adverse consequences to the City.
The second policy that was prepared, which will be discussed this evening, sets forth a
proposed procedure that would be followed when a City Council Member wishes to
review attorney-client privileged communications.
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Policy Regarding Confidentiality of Attorney-Client Privileged Communications
April 15, 2014
Page 2 of 4
Since the last meeting, the policy has been revised in five respects. First, Paragraph 2
has been revised to refer to the definition of unauthorized persons, which has been
incorporated into the definitions set forth in this policy.
Second, Paragraph 3 has been revised to remove some of the constraints that were set
forth in the original paragraph. It is suggested instead that the City Attorney and City
Staff be directed to keep track of the time that is spent in response to requests from
individual Council Members for attorney-client privileged communications.
Third, paragraph 4 was amended so it is clear that a City Council Member may request
the City Council to authorize the City Attorney to provide copies of specific documents
to a Council Member who has requested to review attorney-client privileged
communications. In addition, that paragraph has been revised to clarify that if a Council
Member is unable to review attorney-client privileged communications during the City's
normal business hours, the Council Member may schedule a meeting with the City
Attorney to review the documents outside the City's normal days and hours of
operation.
Fourth, the definition of "confidential communication," as defined in Evidence Code
Section 952, which was set forth in the other policy, has been included in the definitions
for this policy.
Finally, as discussed above, the definition of "unauthorized persons" has been added to
the policy. The new language is underlined and the deleted language is interlineated.
DISCUSSION
As was discussed previously, the City Council as a body is the holder of the attorney-
client privilege for the City of Rancho Palos Verdes regarding all attorney-client
privileged communications, including City Attorney communications exchanged with the
City Council, individual Council Members, and with City Staff.
Only the City Council acting as a body may choose to waive the City's privilege with
respect to attorney-client privileged communications. Individual members of the City
Council and City officers and employees, including the City Manager, may not waive the
City's attorney-client privilege. This means that confidential attorney-client privileged
communications cannot be disclosed unilaterally by an individual Council Member to
any person who does not fall within the City's attorney-client privilege without having
approval of the disclosure by a majority of the Members of the City Council.
Unauthorized disclosures of confidential communications exchanged with the City
Attorney, including legal opinions, email or other confidential communications that are
subject to the attorney-client privilege, or unauthorized disclosures of confidential
communications with the City Attorney during closed sessions or otherwise, harm the
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Policy Regarding Confidentiality of Attorney.Client Privileged Communications
April 15, 2014
Page 3of4
City. Harm to the City from such breaches of confidentiality includes unwarranted
litigation exposure and significant damages awards against the City.
In addition, unauthorized disclosures of confidential communications could have an
adverse effect upon the California Joint Powers Insurance Authority and its evaluation
of the City. It also is possible that if a member of the City Council wrongfully discloses
confidential information obtained in a closed session, or protected by the attorney-client
privilege, the CJPIA could take the position that the elected official is not entitled to a
defense because the disclosure was not authorized by the City Council and, therefore,
was not in the course of employment or duties of the elected official or employee.
Accordingly, it is of paramount importance to the City that attorney-client privileged
communications be protected from disclosure to unauthorized persons without approval
by the Cit.y Council.
Like the other policy, this policy was drafted by the City Attorney's Office to preserve the
ability of the City Attorney to provide advice to the City on legal matters where other
provisions of federal or state law limit access of information or documents to specified
City officials or employees. As examples, state or federal law may limit dissemination
of information and documents in order to comply with the requirements of the federal
Family and Medical Leave Act, the California Family Rights Act, the Penal Code, and/or
the right of privacy guaranteed under California Constitution, Article I, Section 1; to
preserve the due process rights of City employees on disciplinary matters and third
parties on adjudicatory matters that will come before the City Council; and to protect
discovery of the mental processes of individual Council members in evaluating
legislative proposals that will be presented for action to the City Council.
The second policy that is before the City Council this evening, establishes a procedure
for an individual City Council Member to review attorney-client privileged
communications. Specifically, the second policy provides the following:
1. A Member of the City Council may make a request to the City or to the City
Attorney's Office to review documents that are subject to the City's attorney-
client privilege, in connection with the performance of his or her duties as a
Council Member.
2. Such request is not a Public Records Act request, and the Council Member
shall maintain as confidential the records and the information contained in such
records, and not disclose them to unauthorized persons as defined below. tsee
related polioy number_)
3. In the interest of fiscal responsibility and staff efficiency, a request for a copy
of such records shall reasonably describe an identifiable record or records either
by topic or timeframe, or both. The City Attorney and City Staff shall keep a
record of the time that is spent in responding to requests from Council Members
for confidential communications. Requests that seek: (1) a voluminous amount of
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Policy Regarding Confidentiality of Attorney-Client Privileged Communications
April 15, 2014
Page 4 of 4
City records, the gathering and review of 'Nhich may result in significant
expenditures of City time and resources, or (2) sensitive legal matters, may be
referred by the City Manager or the City Attorney to the City Council for approval
prior to disclosure.
4. If a Council Member requests a copy of a confidential communication,
documents that are 'Nithin the scope of the City's attorney client privilege, paper
documents may be provided in paper form for review by the City Council
Member at City Hall during the City's normal business hours. Electronic records
shall be provided electronically for review by the Council Member on a City-
owned computer at City Hall during the City's normal business hours.
Alternatively, if the City Council Member cannot review documents during the
City's normal business hours, the City Council Member may schedule a date and
time to meet with the City Attorney to review the documents. No photograph,
copy (electronic, paper or otherwise) shall be provided or permitted, unless
authorized by the City Council. If the Council Member asserts that he or she
cannot comply with this Paragraph 4, the Council Member shall request
authorization from the City Council to deviate from the provisions of this
Paragraph.
5. By taking these steps, the City's attorney-client privilege will be preserved.
For the foregoing reasons, the City Attorney's Office recommends that the City Council
adopt the attached policy.
ALTERNATIVE
Discuss the attached policy and provide further direction to the City Attorney.
Attachments: Draft Policy
3-4
CITY COUNCIL POLICY (Proposed)
NUMBER:
DATE ADOPTED/AMENDED: 4/15/2014
SUBJECT: CITY COUNCIL MEMBER REQUESTS TO REVIEW ATTORNEY-CLIENT
PRIVILEGED COMMUNICATIONS
POLICY:
The purpose of this policy is to protect confidential communications between the City
and its attorneys, while making such records available for review by a City Council
Member in the performance of his or her duties.
A. Requests to Review Attorney-Client Privileged Confidential
Communications.
1. A Member of the City Council may make a request to the City or to the
City Attorney's Office to review written confidential communications that are within the
scope of the City's attorney-client privilege, in connection with the performance of his or
her duties as a Council Member.
2. Such request is not a Public Records Act request, and the Council
Member shall maintain as confidential the confidential communications and the
information contained therein, and shall not disclose them to unauthorized persons, as
defined below (see related polioy number_).
3. In the interest of fiscal responsibility and staff efficiency, a request to
review such records shall reasonably describe an identifiable record or records either by
topic or timeframe or both. The City Attorney and City Staff shall keep a record of the
time that is spent in responding to requests from Council Members for confidential
communications. Requests that seek: (1) a voluminous amount of City reoords, the
gathering and revie'lt' of lNhioh may result in signifioant expenditures of City time and
resouroes, or (2) sensitive legal matters, may be referred by the City Manager or the
City Attorney to the City Counoil for approval prior to disolosure.
4. If a Council Member requests g_ copy of a confidential communication
information, paper documents may be provided in paper form for review by the City
Council Member at City Hall during the City's normal business hours. Electronic
records shall be provided electronically for review by the Council Member on a City-
owned computer at City Hall during the City's normal business hours. Alternatively, if
the City Council Member cannot review documents during the City's normal business
hours. the City Council Member may schedule a date and time to meet with the City
Attorney to review the documents. No photograph, copy (electronic, paper or
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otherwise) shall be provided or permitted, unless authorized by the City Council. If the
Council Member asserts that he or she cannot comply with this Paragraph 4, the
Council Member shall request authorization from the City Council to deviate from the
provisions of this Paragraph.
5. By taking these steps, the City's attorney-client privilege will be
preserved.
B. Definitions
1. "Agent of the City" means Council Members, City staff, City consultants,
or other City representatives or officers, excluding the City Attorney.
2. "City Attorney" means the person appointed by the City Council as the
City Attorney and other attorneys working within the same law firm as the City Attorney,
and specfal legal counsel retained by the City Attorney or by the City Council.
3. For purposes of this policy. "confidential communication." as defined in
Section 952 of the California Evidence Code, means "information transmitted between"
an Agent of the City and the City Attorney "in the course of that relationship and in
confidence by a means which, so far as the client is aware. discloses the information to
no third persons other than those who are present to further the interest of the client in
the consultation or those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the advice given by the
lawyer in the course of that relationship." For purposes of this policy, "documents that
are subject to the City's attorney client privilege" means any confidential oral or 'A'ritten
information transmitted betv.ieen an Agent of the City and the City Attorney in the course
of that attorney client relationship, as defined in California evidence Code Section 952.
4. "Unauthorized person" means:
a. With respect to confidential information communicated during a closed
session. any person. other than a Council Member (subject to (c) below). not in
attendance at the closed session; or
b. Any person to whom the oral or written confidential communication is
not directed or addressed; or
c. Any person who has a disqualifying conflict of interest in the subject
matter of the information contained in the confidential communication.
d. Unauthorized person does not include the City Manager. the Deputy
City Manager. and Department Heads and other City officers or employees or City
consultants when such persons have a need to know the information contained in the
confidential communication in order to discharge the duties of their positions for the
benefit of the City.
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R6876-0001\l695709v6.doc 3-6
BACKGROUND
The City Council as a body is the holder of the attorney-client privilege for the City of
Rancho Palos Verdes regarding all attorney-client privileged communications, including
communications exchanged with the City Council, individual Council Members, and with
respect to attorney-client privileged legal opinions or communications that the City
Attorney exchanges with the City Manager, or other City officers and employees.
A City Council Member, in connection with the performance of his or her duties as a
Council Member, may need to review the legal advice provided to the City by the City
Attorney, including legal advice upon which the City Council was not copied. At the
same time, the City Council, mindful of the need to protect from inadvertent disclosure
attorney-client privileged communications, has adopted this policy to balance facilitating
the duties of Council Members while protecting from inadvertent disclosure attorney-
client privil~ged communications.
This policy also preserves the ability of the City Attorney to provide advice to the City on
legal matters where other provisions of federal or state law limit access of information or
documents to specified City officials or employees. As examples, state or federal law
may limit dissemination of information and documents in order to comply with the
requirements of the federal Family and Medical Leave Act, the California Family Rights
Act, the Penal Code, and/or the right of privacy guaranteed under California
Constitution, Article I, Section 1; to preserve the due process rights of City employees
on disciplinary matters and third parties on adjudicatory matters that will come before
the City Council; and to protect discovery of the mental processes of individual Council
members in evaluating legislative proposals that will be presented for action to the City
Council.
With these concerns in mind, this policy requires prior review by the City Attorney of
document requests and limits the distribution of copies of attorney-client privileged
communications, while still providing access to such records to City Council Members.
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