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No legal basis for City's attorney-client privilege claim

October 21, 2018

A story I wrote back in July called "McIntyre disagreed with Bernero on retiree health insurance premiums" included a copy of November 23, 2015 memo from then-city attorney Janene McIntyre to Mayor Virg Bernero. A footnote in that memo says

This memo is intended to supplement the March 18, 2015 memo from the City Attorney, Janene McIntyre, to the Mayor. Therefore, the exhibit lettering in this memo will be the same as, and continue from the March 18, 2015 memo.

On July 16 if this year, I submitted a FOIA request for the March 18, 2015 memo. My request was denied on July 24:

I appealed on July 28. In my letter, I said this about attorney-client privilege:

You can’t claim attorney-client privilege simply because an attorney participated in the communication. There are very strict guidelines. This is from the site Leagle.com (www.leagle.com/decision/1975762401fsupp3611715):

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.

Attorney-client privilege doesn’t apply in this case because it applies only to communications from the client to the attorney. In addition, the privilege must be asserted by the client. The assertion of privilege here comes not from Virg Bernero, but the City Attorney’s Office.

City council president Carol Wood denied my appeal on the advice of the City Attorney, which makes you wonder about the whole point of the appeal process. She ignored my argument that, for a communication to be privileged, it has to be from the client, not the attorney, and the privilege must be claimed by the client - neither of which applies in the case of the McIntyre memo.

After I received the appeal denial, an item in the news suggested still another reason attorney-client privilege doesn't apply: McIntyre is/was the City's attorney, not Bernero's. In an August 20 story in the Washington Post about White House counsel Donald McGahn spending 30 hours with Robert S. Mueller III and his team, the question was, Why did President Trump allow it? Why didn't he claim attorney-client privilege? The answer according to Constitutional scholar Larry Tribe:

There is no attorney-client privilege for communications between the president and counsel for a government entity like the office of the presidency. That is of course McGahn’s role, in contrast with Giuliani’s.

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