December 13, 2006 State Ethics Committee: Attorney-Client Privilege?

In a really strange twist of fate, the ethics and legality of actions of the Tennessee Ethics Commission are being questioned.

The Commission was recently asked to provide an "advisory opinion" to two Nashville lawyers who wanted to know when the duties of a lawyer require him or her to register as a lobbyist.

The commission is required by law to answer such questions in order to help lobbyists and public officials avoid conflicts and ethical violations.

The News-Sentinel article is here.

How the Commission handled the request is at issue.

The Tennessee Bar Association (TBA) alleges that staff and members of the Ethics Commission prepared and circulated drafts and e-mail comments of the proposed advisory opinion but did not make the drafts or e-mails public.

Allan Ramsaur, head of the TBA, maintains that these exchanges and comments violate Tennessee's open meetings law requiring governmental bodies to hold all discussions and deliberations in an open, public meeting.

The commission, according to Ramsaur, was debating, discussing, and commenting on the issue in secret via e-mail exchanges.

Ethics Commission Chairman Tom Garland did not believe there was a violation. But, if there was a violation, it was "insignificant."

Then there are additional allegations that the Commission violated Tennessee's Open Records laws. An attorney, Courtney Pearre, filed a public documents request asking that all drafts and related documents be provided.

The state's "open records" law requires that most documents created, sent, or received by government agencies - with some exceptions - be made public upon request.

The Commission refused Pearre's initial request but is still "considering" the matter as it seeks guidance from the state attorney general's office.

The Executive Director of the Ethics Commission, Bruce Androphy, cites the "attorney-client privilege" and "the deliberative process privilege" as exceptions to the requirement that records be made public.

Androphy adds that the commission believes that the draft documents and e-mails requested by Pearre are covered by one or both of the privileges.

Ramsaur, head of the Tennessee Bar Assn., responded that the "deliberative process" exception - keeping draft documents secret when in draft stage - is not recognized in Tennessee and that the "attorney-client" privilege apparently does not apply.

Frank Gibson, executive director of the Tennessee Coalition on Open Government, apparently agrees with Ramsaur that the draft documents are not protected by any privilege and are public documents.

On a possible violation of Tennessee's Open Meetings Law, Gibson adds that this would depend on the content of the drafts and the e-mail comments and whether the drafts and e-mails show that "deliberation" was taking place.