By The Rude Bridge That Arched The Flood

The Massachusetts Appeals Court affirmed and reversed in part a privilege issue in a lawsuit brought to settle property rights to an unpaved trail

The plaintiffs, Susannah Kay and Brooks S. Read (collectively, the Read-Kays), filed a complaint in the Superior Court against the town of Concord (town) under the Massachusetts public records law, G. L. c. 66, § 10, seeking unredacted versions of fourteen e-mail messages (e-mails) sent between the town manager, members of the town select board, and two town employees. The town refused, citing the attorney-client privilege and, in one instance, the work product doctrine. At the parties’ joint request, a judge reviewed the e-mails in camera. He agreed with the town and found that the redacted portions of the e-mails were protected by the attorney-client privilege and, as to one e-mail, the work product doctrine. On cross motions for summary judgment, the judge allowed the town’s motion, denied the plaintiffs’ motion, and entered judgment for the town. The Read-Kays have appealed and contend that the judge erred in finding that the e-mails were protected by the attorney-client privilege and work product doctrine, respectively. They also argue that, even if a privilege exists, the Massachusetts open meeting law, G. L. c. 30A, §§ 18–25, operates as an automatic waiver of the privilege. We affirm in part and reverse in part.

Attorney need not be looped in

The Read-Kays cite no authority, nor have we found any, supporting the proposition that communications not directly including an attorney are per se unprotected by the attorney-client privilege. In fact, our case law indicates the opposite. The Supreme Judicial Court in Hanover Insurance recognized the common interest doctrine, in which communications 8 shared with another represented party’s counsel for the purpose of furthering a common legal interest are protected by the attorney-client privilege. Hanover Ins., 449 Mass. at 612. The court defined the doctrine to encompass communications between two clients where no attorney is included. Id. at 614, quoting Restatement (Third) of the Law Governing Lawyers § 76(1) (2000). While Hanover Insurance addressed communications that did include an attorney, we have held that communications directly between clients are also protected. See Brauner v. Valley, 101 Mass. App. Ct. 61, 72 (2022) (“The common interest doctrine protects communications between represented clients who share a common interest”). The per se rule the Read-Kays advocate for would undermine this facet of the common interest doctrine and jeopardize the application of the attorney-client privilege to communications that we have already deemed privileged. See generally Mass. G. Evid. § 502 (2024). A per se rule, taken to its logical extreme, would also require disclosure in situations where an attorney was inadvertently excluded from a  communication that was otherwise privileged or where an assistant relayed the attorney’s advice to a client. Legal advice given directly to a group of clients would be protected, but if one client relayed that advice to other co-clients, the protection would not apply. Making the attorney-client privilege contingent on such technicalities would undermine its purpose — enabling “clients to make full disclosure to legal counsel of all relevant facts.” Comcast, 453 Mass. at 303, quoting Suffolk Constr., 449 Mass. at 449. We decline to adopt such a rule, which is without support in our case law and conflicts with other applications of the attorney-client privilege.

As for the application of the attorney-client privilege here, we observe that the privilege attaches not only to communications between the client and the client’s attorney, but also to communications “between representatives of the client” that are “made for the purpose of obtaining . . . legal services.” See Mass. G. Evid. § 502(b)(4) (2024).5 “A ‘client’ is a . . . corporation, association, or other entity, either 10 public or private” that consults or receives services from an attorney. See id. § 502(a)(1). See Matter of a Grand Jury Investigation, 437 Mass. 340, 351 (2002) (recognizing attorneyclient privilege exists for non-person client). A representative “may include the client’s agent or employee.” Id. § 502(a)(2). See Ellingsgard v. Silver, 352 Mass. 34, 40 (1967) (“The attorney-client privilege may extend to communications from the client’s agent or employee to the attorney”). The Read-Kays do not dispute either that the town is a client or that the town manager and members of the select board are agents of the town. As “officers of government,” accountable to the people of the town, they are the town’s agents. See art. 5 of the Declaration of Rights of the Massachusetts Constitution. As agents, they fall within the definition of “representative.” See Mass. G. Evid. § 502(a)(2) (2024). Accordingly, when the town manager and members of the select board communicate amongst themselves for the purpose of obtaining legal services, we conclude that those communications may be protected by the attorney-client privilege.

Emails at issue

In sum, the remaining nine disputed e-mails are not communications about obtaining or disseminating legal advice given by town counsel but rather are simply discussions among town officials about what to do with the trail. Such communications are not protected by the attorney-client privilege as they are not made for the purpose of obtaining legal advice. Further, disclosure of these e-mails exchanged among town officials will have no impact on the full and frank discussions with counsel, the quality of counsel’s advice to town officials, the confidentiality of communications between counsel and town officials, or the “broader public interests in the observance of law and administration of justice” as embodied in the attorney-client privilege.

No waiver

Enacted three years after Suffolk Construction affirmed the application of the attorney-client privilege to public entities, the current open meeting law contains no language indicating that it operates as a statutory waiver of the privilege. In fact, the new statute contains additional provisions to ensure that the privilege protects entities like the town.10 See G. L. c. 30A, §§ 23 (f), 24 (e). By enacting a new open meeting law, the Legislature strengthened the privilege rather than making it “unmistakably clear” that it intended to divest towns “of a privilege as basic and important as the attorney-client privilege.” Suffolk Constr., 449 Mass. at 461.

Work product

The e-mail reveals town counsel’s mental impressions — it shows what counsel thought was important, and what information would be necessary or useful for litigating the case. Because the work product doctrine applies to the contested e-mail, the judge properly held that the town was not required to produce it.

Conclusion

For the foregoing reasons, we affirm the summary judgment entered against the plaintiffs on their public records law claim to the extent it was based on the portion of the May 26, 2016 e-mail from Jane Hotchkiss to Michael Lawson, and the e-mails dated March 29, 2016; August 1, 2016; May 11, 2017; and December 12, 2017. As to the remaining e-mails, and the portion of the May 26, 2016 e-mail from Michael Lawson to 22 Chris Whelan, the entry of summary judgment against the plaintiffs is reversed and the case is remanded for judgment to enter consistent with this opinion.

(Mike Frisch)