Bar supports stronger attorney-client privilege for public agencies.

Litigation-related attorney work product provided by government attorneys for public agencies should remain confidential even after the completion of the litigation, according to the Bar Board of Governors.

Further, more employees and/or agents should be able to participate in closed-door meetings between agencies and their attorneys.

But whether the transcripts of such confidential meetings should remain closed after litigation ends is still under study, following action by the board at its April 3 meeting in Coral Gables.

The board accepted most of the recommendations from the Attorney-Client Task Force on attorney-client privilege for government attorneys, but followed the advice of the Legislation Committee to have it continue studying a proposal to keep confidential meeting records sealed after the end of litigation. The task force was chaired by Miami attorney Marcos Jimenez.

Currently those records are public at the end of litigation. The task force recommended they be sealed and only opened with a judge's order after an in camera hearing to establish the agency violated the law.

The board's action creates a new Bar legislation position (see official notice in the April 1 News) to support a change in state laws. (It is not intended that legislation will be considered until the 2010 legislative session.)

Task Force member Marion Radson, who chaired its Public Sector Subcommittee, which came up with the proposals, said the attorney-client privilege is virtually nonexistent for government lawyers.

"I once wrote an article titled, 'Practicing in a Fish Bowl.' That is what we're doing," Radson said.

For example, he said government lawyers do not have fact work product confidentiality and only have opinion work product confidentiality when litigation is pending--and that privilege ends when the litigation is over.

Further, the government lawyer cannot meet confidentially with clients unless it is about pending litigation. Even then, other government employees and agents may not attend the meeting and a transcript must be kept. That transcript also becomes public when the litigation ends, meaning that for practical purposes there is no confidentiality between government lawyers and their clients, Radson said.

Consequently, such meetings are rarely held and the free flow of discussion between attorneys and clients is constrained by the knowledge the dialogue will eventually become public, he said. Discussion is limited under current law to...