                                          Thp Attorney         General of Texas

    JIM MAlTOX                                            December 19. 1983
    Attorney General!,



    Supreme Court BUM&~                  Honorable W. C. McDonald                Opinion No.JM-100
    P. 0. BOX 1254a                      Pecos County Attorney
    Au.siIn, TX. 7571% 2549              Courthouse                              Re: Construction of section 2(e)
    512/475-2501
    Telex 9101874-1357
                                         Fort -Stockton.Texas   79735            of the Open Meetings Act, article
    T.&lecopler 512l475.0266                                                     6252-17. V.T.C.S.

                                         Dear Mr. &Donald:
    714 Jackson, Suite 700
    Dallas, TX. 752024506
    214i742-8944                             ,You have requested our opinion regarding the proper construction
                                         of ,section.2(e).of article 6252-17. V.T.C.S., the Open Meetings Act.
                                         That section provides:
    4824 Alberta Ave.. Su!l. 160
    El Paw, TX. 799052793                             Private consultations between a governmental
    91~3484
r                                                  body ,and its attorney are not permitted except in
                                                   those instances, in which the body seeks the
    ..A01Texas. Suite 700.                         attorney's advice with respect to pending or
    H~~slbn. TX. 77002-3111                        contemplated litigation, settlemeot~ offers, and
    71Y2295555                                     matters where the duty of a public body's counsel
                                                   to his     clients, pursuant to the      Code   of
    808 Broadway, Suite 312
                                                   Professional Responsibility .of the State Bar of
    Lubbock. TX. 794Olti79                         Texas, clearly conflicts with this Act.
    KWi’47-5238
                                          Clearly.: a ~governmental body may meet imexecutive session with its
    4309 N. Tenth. Sulte 8,
                                         .attomey in any .instancePn which it.seeks the attorney's advice "with
    McAllen. TX. 75501-1585       ~       respect-:'to-peadiag,or  contemplated litigation [or] settlement offers."
    51m.4547        ,.  C’.,~..: ‘~      :We ~miet~detemine; however , the scope of the:following:
                             ;. 1.‘>>         I 1.;~.:i: &I
                                          :i ,).               I.,.
                                        , ,,i..i:'>.~
                                                 MY Matters where the ~duty of a'public body's~counsel
    200 MaIn Plaza: suite 4&l .:,                  ,.c
                                                    ,xo:~_shis
    San Antonlo, T~:,7~?707
                                                                 client, pursuant to -the Code         of
    5121225.4191            ~‘:-.                 i:-?Profeaaional.Responsibility,of ~.the,State Bar of
                                        +,>+I : .lT&aa, clearly conflicts.with this Act.'
                                          .~c,:- ‘,;, <           3‘       i$..,
    An Equal Opportunlty($;,,‘~ ‘,.$       ~~+:-Canon'4of:.chelTexasCode of-~Professional~:Responsibility.  article
    Affirmative Actlon Employer           320a-1, V.T.C.S.. Title 14. Appendix A. atticle 12, section 8.
                                          provides that “[al    lawyer should preserve the confidences and secrets
                                          of a client." Frofeasor Wigmore's definition of the attorney-client
                                          privilege is perhaps the most frequently quoted:

                                           I.'~-I.~.t    (11.:where ,legal advice of any kind is sought
P                                           ‘. ‘.2i ;.'(2)
                                                         ~~~froma: professional legal adviser in his
                                                      capacity as such (3) the conuuunicationsrelating



                                                                        p. 421
Honorable W. C. McDonald - Page 2   (JM-100)




         to that purpose, (4) made in confidence (5) by
         the client, (6) are at [the client's] instance
         permanently protected (7) from disclosure by
         himself or by the legal adviser, (8) except the
         protection be waived.

8 Wigmore, hridence 12292. at 554. The classic case law definition of
the privilege is that articulated by the court in United States v.
United Shoe Machinery Corp.. 89 F.Supp. 357. 358-59 (D. Mass. 1950):

         The privilege applies only if (1) tbe 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 (1) an.
         opinion on law or (ii) legal services or (ill)
         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.

This definition, as well as the Wigmore formulation of the privilege,
was cited with approval by the Fifth Circuit in In re Grand Jury
Proceedings, 517 F.2d 666, 670 (5th Cir. 1975).

     The crux of these requirements for purposes of section 2(e) is
that the ~communlcationmust be related to an opinion on law or legal
services or assistance in some legal proceeding. Thus, a governmental
body may hold an executive session to seek-or receive.the advice of
its attorney only with regard to matters in which it seeks the
attorney's w:advice,     or with regard to matters which relate to a
specific pending or contemplated legal proceeding. If the discussion
does not relate to a specific legal proceeding, the closed door
discussion ~with lithe,attorney must :be limited to legal matters.
General discussion of policy, unrelated to legal matters, is not
permitted under the language of section,.2(e) ~merely because an
attorney ie ,preeent.

                            SUM&f   A RY

            Pursuant to section  2(e) of article 6252-17,
         V.T.C.S., the Open Meetings Act, a governmental
         body may meet with its attorney in executive                   ?
         session only with      respect  to   pending  or




                                    p. 422
Honorable W. C. McDonald - Page 3      (JM-100)




          contemplated litigation or settlement offers, or
          to seek or receive the attorney's advice with
          regard to legal matters.    General discussion of
          policy. unrelated to legal matters. is not
          permitted merely because an attorney is present.




                                        JIM     HATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton




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