Public Policy
  Analysis, opinion & ideas from Steve Harry



Hiding behind attorney-client privilege

June 20, 2016


The contempt Mayor Virg Bernero holds for the people of Lansing is shown by his refusal to provide details of the resignation of former city attorney Janene McIntyre. We pay his salary and we'll pay for the $160,000 payout to McIntyre (including "about $80,000 extra in order to grease the skids," (source) yet although Bernero has released the separation agreement, local media has been denied other documents relating to the resignation, such as emails and memos and invoices from outside lawyers who worked on the agreement.


The Lansing mayor is subject to the Freedom of Information Act and Michigan's governor is not, yet Governor Snyder released thousands of emails relating to the Flint lead poisoning crisis. Bernero repeatedly cites "attorney-client privilege" when denying FOIA requests. Examples (emphasis mine):


A May 5 story in the Lansing State Journal tells of attempts to get copies of invoices from outside attorneys for services provided in negotiating McIntyre's separation agreement. It says Interim City Attorney Joseph Abood "sent a letter to the LSJ providing all four pages of the invoice and citing attorney-client privilege as the reason for redacting the list of services provided by the Dykema lawyers."


On June 7, WILX reported that the city attorney's office gave them 105 pages of email "messages between the City of Lansing, two outside attorneys and the lawyer for former City Attorney Janene McIntyre, but all we can see is who sent each email, who received it, the dates and the subject lines. Everything else is blacked out. . . .The City claims some of the information is personal and the rest falls under attorney-client privilege."


A June 14 story in the LSJ says that "Abood said Friday his office takes FOIA requests seriously and is behind on the LSJ's request for emails because it's 'a huge undertaking.' He added that 'most, if not all' of the emails between Bernero and McIntyre requested by the LSJ are considered 'attorney-client communication' that needs

From WILX story

to be vetted and possibly redacted."


I've done some Internet research on attorney-client privilege and this is what I find:


"The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence." (source) Its purpose is to insure "the right of every person to freely and fully confer with and confide in a person having knowledge of the law and skilled in its practice, so that adequate advice may be received and proper defenses asserted." (source) There are limitations, however.


First, there must be an attorney-client relationship. Although McIntyre was the city attorney, she was not providing legal advice to Bernero during the time the separation was being negotiated. They were adversaries. She had her own lawyer - James White - and Bernero used attorneys from the Dykema Gossett law firm. So any communication between Bernero and McIntyre or Bernero and McIntyre's lawyer are not subject to attorney-client privilege.


Second, the privilege applies only to communications from a client to his attorney. Correspondence the Dykema Gossett attorneys received from Bernero may qualify, but not Dykema Gossett's invoices or the separation agreement they prepared, or any correspondence in the City's possession that came from McIntyre or her lawyer.


Finally, it does not apply if anyone other than the client or his attorney has read the communication.


The above comes from my interpretation of the following, found at this site:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

It appears that the only way to get the City to release the requested materials is to file a lawsuit, as provided in the Freedom of Information Act:

If a public body makes a final determination to deny all or a portion of a request, the requesting person may commence an action in the circuit court to compel the public body’s disclosure of the public records within 180 days after a public body’s final determination to deny a request.

A judge will examine the documents and decide if they are indeed privileged. If they are not, and the court determines that the City has arbitrarily and capriciously violated the Act, the court shall award punitive damages in the amount of $500.00 to the person seeking the documents in addition to any actual or compensatory damages.


I am willing to contribute $1000 to get this lawsuit started, but we need to hold off for a while. According to a June 13 LSJ story, Mayor Bernero has appointed Jim Smiertka as the permanent replacement of Janene McIntyre. His start date is July 1. Smiertka "served as city attorney from 1994 to 2004 under David Hollister and Tony Benevides" and "most recently served as senior vice president and general counsel of the Prima Civitas Foundation." He's quoted by the LSJ as saying this about his new job: "We have to live by principles of ethics, honesty, diligence in the work and trust." With that attitude, I am surprised that Bernero appointed him. We can test his ethics, honesty and diligence by re-submitting all those FOIA requests.


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