When the Louisiana Legislature adjourned sine die for yet another year, your friends at LPA let out a long sigh of relief, that for another year, we generally held the line.
Every year we see new exceptions proposed to the public records law. This year the legislature wanted to exempt records relating to alligator breeding. That passed, but the exception seeking to close the records of who supplies death penalty drugs found a painful end, thanks in part to LPA’s opposition.
The state’s regulation of Uber and Lyft will be open to public records requests, too. That was another win for LPA, and for open records.
But with the wins came some losses and the inevitable roadblocks that government puts up.
A roadblock we have been seeing more frequently isn’t actually an exception to the public records law, but it’s another law that creates a roadblock to access to what seem to be public records -- the attorney/client privilege.
You may have seen some intrepid reporting by some news outlets about Gov. John Bel Edwards’ communication with LSU about Coach Will Wade and the LSU basketball team.
One news organization was able to obtain text messages Gov. Edwards sent to LSU board members about certain players and their status. It was quite a story, but some of the messages were also withheld—with the government claiming the attorney/client privilege.
Attorney-client privilege can swallow everything— believe me, I’m an attorney.
It has to be respected. But it also can’t be used as a shield.
Just because an attorney is copied on an e-mail doesn’t make it privileged. It has to be sent in the course of a client representation.
And only the client can waive it.
Attorney-client privilege in Louisiana is found in Louisiana Code of Evidence 506. It grants a privilege to the client to refuse to disclose confidential communication “made for the purpose of facilitating the rendition of professional legal services to the client, as well as the perceptions, observations, and the like,” between the client and the lawyer, or their representatives.
In the LSU basketball situation, the client to whom the attorney was reporting was undoubtedly LSU, not the governor.
There are interesting and newsworthy legal issues surrounding the LSU basketball team.
Gov. Edwards, like I am, is probably very interested in what’s going on, but the Governor runs the state, not the basketball team.
You may have seen yours truly quoted in the Times-Picayune after the Edwards administration withheld those text messages, citing attorney/client privilege.
I called a spade a spade.
I thought the use of the privilege was improper and sending the information to the governor, no matter the good intentions, waived the privilege.
The only way to fight such questionable use of the privilege—short of suing, which is expensive, is to call people out on it.
If you encounter what you believe is an abuse of that privilege, call LPA’s Hotline and we’ll talk it through.
The LPA Hotline is here for you. Call LPA HQ at 225-344-9309 and ask to speak to the Hotline attorney if you need assistance understanding the law of privacy, defamation, open meetings, public records or Louisiana government generally. Be sure to check our updated Law Guide in the members-only section of LPA’s web site, www.lapress.com.
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Scott Sternberg is general counsel to the Louisiana Press Association and practices law with Sternberg, Naccari, & White, LLC in New Orleans and Baton Rouge. Scott operates the LPA legal hotline and can be reached at scott@snw.law; www.snw.law; 504-324-2141. This column is not to be construed as creating an attorney-client relationship or giving legal advice. You should consult with a licensed professional about your business and legal obligations.