JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General
AGO 83-1107
No. 83-1107
California Attorney General Opinion
Office of the Attorney General State of California
March 20, 1984
THE
HONORABLE ADRIAN KUYPER, COUNTY COUNSEL, ORANGE COUNTY, has
requested an opinion on the following question:
Is an
advisory committee which has been created by the Board of
Supervisors to advise it on airport matters entitled to meet
in closed session with counsel with respect to litigation to
which the board is the sole party representing the interests
of the county?
CONCLUSION
Assuming
that such a meeting with counsel which is held by the
advisory committee properly relates to its powers and duties
to advise the Board of Supervisors on airport matters, such
committee may meet with counsel in closed session to discuss
litigation to which the board is the sole party representing
the interests of the county.
ANALYSIS
Orange
County has by ordinance established an Airport Commission
("Commission") to advise it on airport
matters.
1 Apparently the Board of Supervisors
("Board") is involved in litigation involving
airport matters where it is the sole party representing
county interests. The question presented for resolution
herein is whether the Commission is entitled to meet in
closed session with counsel with respect to this litigation.
We
conclude that assuming such a meeting properly relates to its
powers and duties to advise the Board on airport matters, the
Commission may meet with counsel to discuss such litigation.
Advisory
commissions such as the Commission are "legislative
bodies" within the meaning of the Ralph M. Brown Act,
Government Code section 54950 et seq. (Gov. Code, §
54952.3.) Accordingly, their meetings are required to be open
and public unless otherwise specifically provided in the act
or as may be implied from some other provision of law such as
the attorney-client privilege. (Gov. Code, § 54953; 65
Ops.Cal.Atty.Gen. 412, 413 (1982).)
The
suggestion has been made that since the litigation names only
the Board, and since the Board has the duty to "direct
and control the conduct of litigation in which the County . .
. is a party" (Gov. Code, § 25203), only the Board
may properly meet with counsel in an attorney-client
relationship. We, however, do not believe that the
attorney-client relationship at the county level need be so
narrowly applied. In reaching our conclusion we will first
analyze the attorney-client privilege in the county context
and then analyze the implied exception carved out by case law
for such privilege in relation to the Ralph M. Brown Act.
An
examination of both the statutory law and the case law leads
us to conclude that when an action is brought against only
the Board as a board, and not in their individual capacity,
the "client" for purposes of the attorney-client
privilege is in reality the county as an entity, and not
merely the Board. From this conclusion, it follows that
any county board, commission, committee or officer
having a legitimate official interest in a particular lawsuit
may confer with counsel in an attorney-client
relationship.
2To illustrate, a committee such as the
Commission involved herein could be replete with expertise
which could be of invaluable aid to the Board in advising it
with respect to the possible conduct of litigation or the
settlement of such litigation.
As to
the statutory law, the attorney-client (or
"lawyer-client") privilege is codified in section
950 et seq. of the Evidence Code. "Client" is
defined in section 951 as follows:
"As used in this article, 'client'
means a person who, directly or through an
authorized representative, consults a lawyer for the
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