Carnelli v. State, No. 396-6-14 Wncv (Teachout, J., July 7, 2015)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 396-6-14 Wncv

JACOB CARNELLI
    Plaintiff

           v.

STATE OF VERMONT
     Defendant


                                                      DECISION
                                          Cross-Motions for Summary Judgment


        At all times relevant to this public records case, Plaintiff–Requestor Jacob Carnelli has
been a corrections officer with the Vermont Department of Corrections (DOC). In 2013, a
Boston police officer contacted the DOC with concerns about Mr. Carnelli’s state of mind,
alleging that he may be a danger to himself or others. This sparked an inquiry by the DOC and
the Vermont Department of Human Resources (DHR) into the allegations. Mr. Carnelli
voluntarily took a leave of absence. He was asked to complete a “fitness for duty” examination
prior to returning to work. He eventually took the examination and returned to work.

         Mr. Carnelli then initiated what became a series of public records requests to the DOC
and DHR seeking documents related to his personnel file, arising out of the Boston police
officer’s allegations, and arising out of the investigation or inquiry by the DOC or DHR in
response to those allegations. The State produced many documents prior to suit but withheld
some as privileged or otherwise exempt from disclosure. It produced some more documents
after this suit was filed. At this point, the controversy is limited to a small group of e-mail
communications and one page of handwritten notes for which the State claims attorney–client
privilege. 1 V.S.A. § 317(c)(4). Attorney Steven Collier, at all relevant times DHR’s General
Counsel, was a participant in each of the e-mails and was the author of the handwritten notes.
These documents are described generally in the State’s Vaughn index.

        In the State’s view, Attorney Collier’s role in the e-mail communications was to provide
legal advice, he did provide legal advice, and thus the documents are properly withheld as
privileged. In Mr. Carnelli’s view, Attorney Collier was acting not as a lawyer, but as an
ordinary member of an investigative team, and a non-lawyer could have participated in Attorney
Collier’s place and fulfilled the same function that Attorney Collier did. He thus was not
dispensing legal advice, Mr. Carnelli argues, and the attorney–client privilege does not apply.
       The exemption

        Under 1 V.S.A. § 317(c)(4), the following records are exempt from disclosure: “[r]ecords
which, if made public pursuant to this subchapter, would cause the custodian to violate any
statutory or common law privilege other than the common law deliberative process privilege as it
applies to the General Assembly and the Executive Branch agencies of the State of Vermont.”
There is no dispute that records subject to the attorney–client privilege are exempt under 1
V.S.A. § 317(c)(4). See generally, e.g., 232511 Investments Ltd. v. Town of Stowe Development
Review Board, 2005 VT 59, 178 Vt. 590 (applying 1 V.S.A. § 317(c)(4) in the attorney–client
privilege context).


       The attorney–client privilege

        The general rule of the attorney–client privilege is as follows: “[a] client has a privilege
to refuse to disclose and to prevent any other person from disclosing confidential
communications made for the purpose of facilitating the rendition of professional legal services
to the client.” V.R.E. 502(b). The issue in this case is whether the withheld communications
were “made for the purpose of facilitating the rendition of professional legal services.”

        Generally, a “lawyer’s assistance is legal in nature if the lawyer’s professional skill and
training would have value in the matter.” Restatement (Third) of Law Governing Lawyers § 72
cmt. b. However, “[s]ome tasks commonly performed by lawyers require no distinctly legal
skill.” Id. cmt. c. As the Restatement explains,

       If a lawyer’s services are of a kind performed commonly by both lawyers and
       nonlawyers or that otherwise include both legal and nonlegal elements, difficult
       questions of fact may be presented. So long as the client consults to gain
       advantage from the lawyer’s legal skills and training, the communication is
       within this Section, even if the client may expect to gain other benefits as well,
       such as business advice or the comfort of friendship. The primary consideration
       is the reasonable expectations of the person in the position of putative client.

Id. (emphasis added). These “difficult questions” may be especially so in the case of lawyers in
in-house counsel roles, as Attorney Collier was in his capacity as General Counsel for DHR.

        As one commentator explains, in-house counsel commonly dispense both legal and
nonlegal advice. “Yet, these attorneys do not really change hats, nor do they separate their work
days into nonlegal and legal parts.” Grace M. Giesel, The Legal Advice Requirements of the
Attorney–Client Privilege: A Special Problem for In-House Counsel and Outside Attorneys
Representing Corporations, 48 Mercer L. Rev. 1169, 1196 (1997). Because privileged and
unprivileged advice is likely to be “intimately intertwined,” it is especially important in this
context for courts to be sensitive that “[a]ttorneys use their legal expertise, knowledge, and
training to assist clients in an ever-evolving variety of ways.” Id. at 1195. The emphasis should
not be on “whether a nonlawyer could do the task even though a lawyer might do it better.” Id.
at 1194. Courts should focus on determining “whether the client sought the application of an

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attorney’s skill and training.” Id. at 1195. As the Restatement frames it, “[t]he primary
consideration is the reasonable expectations of the person in the position of putative client.”
Restatement (Third) of Law Governing Lawyers § 72 cmt. c.

         These principles and insights inform the court’s evaluation of the withheld documents,
each of which the court has reviewed in camera. Subject to some redactions, the documents
were permissibly withheld under the attorney–client privilege. It is clear that Attorney Collier
was consulted primarily due to his legal skill and training and the advice he provided reflects
that. It may be that a human resources professional with sufficient expertise, experience, and
awareness of potential legal issues who is not a lawyer could have provided some or much of the
same guidance. It remains the case, however, that those communicating with Attorney Collier
were seeking the benefit of his legal background and judgment and reasonably would have
expected those communications to be confidential.

      The remaining pages of withheld e-mail communications have the following bates
numbers: 1, 2, 10, 11, 14–25, and 27–30.

        Pages 1, 2, 10, 11, and 17 will be released with appropriate redactions in an appendix to
this decision. These are “group” e-mails. The group includes DOC and DHR officials, including
Attorney Collier. These e-mails are not expressly addressed to Attorney Collier’s individual
attention. However they begin with a request for guidance, and Attorney Collier is the one who
responds with advice of the kind typically provided by lawyers, and his e-mails state that they
are privileged. In ongoing email communication, he provides counsel as to the course of
investigation with regard to the legal context and legal considerations presented by the situation.
He is not functioning simply as one member of a human resources committee. It is apparent that
he is being consulted due to his legal skill and training and his responses reflect that. In his
responses he gives direction as opposed to seeking input from others, and he identifies himself as
counsel.

        This is all the more evident in the pages that are fully privileged: 15–16, 18–25, and 27–
30. These are not group e-mails. They are specific communications addressed directly to
Attorney Collier or from him. His responses again state that they are privileged. Specific issues
of a clearly legal nature are addressed. There is no meaningful way to redact these documents.
The only information in them that falls outside of the privilege already is available in the Vaughn
index (such as dates, authors, and recipients). These pages will not be released.

       The single page of notes was properly withheld. These are Attorney Collier’s notes from
a DOC “staffing” meeting. It was attended by DOC officials, DHR officials, and an assistant
attorney general. Attorney Collier led the discussion when the subject turned to Mr. Carnelli.
The decision to request a fitness for duty examination was made. Attorney Collier’s notes reflect
what appear to be some of the factors that contributed to that decision. The notes are within the
scope of the privilege and will not be released.




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       Attorney fees

       Mr. Carnelli seeks his attorney fees and other litigation expenses in this case. The public
records act provides for the recovery of fees and expenses as follows:

       (d)(1) Except as provided in subdivision (2) of this subsection, the court shall
       assess against the public agency reasonable attorney’s fees and other litigation
       costs reasonably incurred in any case under this section in which the complainant
       has substantially prevailed.

          (2) The court may, in its discretion, assess against a public agency reasonable
          attorney’s fees and other litigation costs reasonably incurred in a case under
          this section in which the complainant has substantially prevailed provided that
          the public agency, within the time allowed for service of an answer under Rule
          12(a)(1) of the Vermont Rules of Civil Procedure:

               (A) concedes that a contested record or contested records are public; and

               (B) provides the record or records to the complainant.

1 V.S.A. § 319(d). Mr. Carnelli’s request for fees and expenses is general and was raised in his
summary judgment motion. The parties could not be expected to have properly briefed Mr.
Carnelli’s entitlement to fees and expenses before the cross-motions for summary judgment were
decided and Mr. Carnelli has not produced detailed billing records. The court declines to resolve
this issue at this time.


                                            ORDER

        For the foregoing reasons, the parties’ cross-motions for summary judgment are granted
in part and denied in part.

       Documents with bates numbers 1, 2, 10, 11, and 17 have been redacted, and the redacted
documents will be placed under seal together with the original sealed documents. They will be
provided to the State, as redacted, in an appendix to this decision. They will remain under seal in
the court’s record for 10 days. If the State does not indicate its intent to contest the release of
these documents on appeal before 10 days, the redacted documents will be released to Mr.
Carnelli. Otherwise, they will remain under seal pending the outcome of any appeal.

       This case will be set for a status conference to address the question of fees and expenses.

       Dated at Montpelier, Vermont this ____ day of July 2015.

                                                     _____________________________
                                                     Mary Miles Teachout
                                                     Superior Judge

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