Arizona Appeals Court Ruling On The Attorney-Client Privilege And City Attorneys

For nearly two years, four Glendale City Council Members and the City Clerk faced criminal indictments for their failure to file 2002 financial disclosure statements as required by law. The City Clerk was implicated when it was discovered that she had backdated papers that had not been filed on time. In addition, the issue was discussed in executive session, the old reports were destroyed, and new, correctly-dated reports were filed. In State v. Schneider, 2006 WL 786709 (Ariz.App. Div. 1) the Arizona Court of Appeals ruled that testimony given in front of a grand jury by a former city attorney had been used to improperly obtain the indictments and that the disclosed communications were protected by the attorney-client privilege.

In November 2003, a former Glendale city attorney was placed on administrative leave by the City of Glendale due to an investigation that apparently concluded he had misused both his city computer and the access that the City provided him to the Internet. He resigned from his position and was advised upon resignation that the City would not waive the attorney-client privilege with respect to any aspect of his employment. The former city attorney then filed a lawsuit naming the City and some of its Councilmembers as defendants, alleging that he had been constructively discharged for “whistleblowing” as a result of the councilmembers’ failure to timely file their 2002 financial disclosure statements, and subsequent “backdating” of documents. He informed the Maricopa County Attorney’s Office of these alleged criminal acts in relation to the filing of the 2002 financial disclosures.

In seeking grand jury indictments, the County Attorney used testimony from the former city attorney comprised of communications he had shared with the various Councilmembers both in private and in Executive Session of the Glendale City Council. Without question, the former city attorney’s testimony before the grand jury revealed the content of both his private communications with all the Councilmember’s and the content of those communications, including communications with those individuals present at the Executive Session in which the matter was discussed.

The County Attorney admitted that the former city attorney never indicated in any of these communications with the Councilmembers that he did not represent them with respect to this matter or that their communications were otherwise not subject to privilege.

The appeals court upheld the long-standing test in determining whether a communication is protected by the attorney-client privilege: primarily, that it focuses primarily on the state of mind of the client. “An attorney-client relationship is said to exist when the party divulging confidences and secrets to an attorney believes that he is approaching the attorney in a professional capacity with the intent to secure legal advice.” Alexander v. Superior Court, 141 Ariz. 157, 162, 685 P2d. 1309, 1314 (1984) (Citations omitted.) The court further noted that in this particular matter, the City ordinance and the Councilmembers status as city officials gave all of them reason to believe that they were represented, at least in their official capacity, by the former city attorney.

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.