Board-Savvy Superintendent

Who’s Privileged When You Consult the Board Attorney?

by David B. Rubin

You don’t need a lawyer to advise that you can’t sneeze today without implicating one of hundreds of state and federal statutes and regulations affecting every aspect of your school district’s operations. That’s why most school administrators value the chance to brainstorm solutions to legal problems with their school board’s legal counsel before they blossom into litigation or public relations disasters.

RubinDavid B. Rubin

Most superintendents assume their dealings with the board attorney are protected by the attorney-client privilege. Yet, there is much misunderstanding about this age-old legal doctrine, including, in some jurisdictions, whether government clients like school boards even have such a privilege.

Check with your school board attorney and your statewide professional association to confirm the parameters of the public sector attorney-client privilege in your state. You may be surprised to learn there is no definitive guidance at all on the point and can factor that uncertainty into your dealings with board counsel. In any case, remember the board attorney’s client is not you as the superintendent per se but the school board or the school district that employs you, and communications between you and the attorney are in your capacity as the agent of your employer.

Uncomfortable Moments
This situation can create some awkwardness when you have a long-standing working relationship with the attorney that has matured into a personal friendship or perhaps you were responsible for the attorney being there in the first place. In more than 30 years of representing school districts, I have had countless conversations with superintendents who have attempted to enlist me as their confidante or advocate in fighting their battles with the board. Most school board attorneys know the difference between cordiality toward you as the day-to-day point person and compromising their ethical duties to the board that employs you. It will make for a healthier working relationship if you’re mindful of this ethical minefield that we attorneys must negotiate.

The corollary to these principles is that superintendents — and even school board members themselves — have no personal right of confidentiality over communications between them and the board attorney because they are not the attorney’s client. In other words, a superintendent or board member may not prevent the board attorney from revealing those communications to the full board. Conversely, the superintendent or board member may not reveal those communications to outsiders without the board’s permission because only the board as the client can waive the privilege.

A real case from New Jersey shows the pitfalls that await those who forget these basic principles.

A school board member privately asked the board attorney to draft a resolution censuring a fellow member for misbehavior and to keep it “just between them” because he was not sure he was going to move forward with it. The resolution was never introduced, but the rest of the board got wind of what had occurred and demanded the attorney produce the draft resolution he had written.

Unclear of his ethical obligations, the attorney sought guidance from the state ethics authorities, who held, in no uncertain terms, the individual board member had no reasonable expectation of privacy in his communications with the board attorney and that the full board was entitled to know anything communicated between them.

Breaching Privilege
Who has the authority to waive the attorney-client privilege and reveal communications between board counsel and you as superintendent? Probably not you. In most jurisdictions only the school board as the client can waive the privilege and allow its attorney to testify about communications with individual board members or employees, even if those individuals want the attorney to. That means if you are an individual defendant in a legal proceeding and want to compel testimony from the board attorney about conversations you had that were helpful to your cause, you may find yourself out of luck unless the board agrees to allow it.

Be aware that the ground rules may change if there’s a criminal investigation under way. The courts are sharply divided over whether the privilege can be raised when prosecutors are pursuing grand jury evidence of wrong-doing. Most courts that have considered the issue so far have held that government clients may not raise the attorney-client privilege to prevent their attorneys from revealing confidential communications when testifying in criminal grand jury proceedings.

Finally, attorneys in many states now have the right and, at times, the obligation to breach the attorney-client privilege and blow the whistle to outside authorities on their own clients’ misdeeds. This is the legacy of the Enron scandal and the corporate meltdowns that followed where, it was argued, millions of innocent employees and investors suffered because lawyers silently stood by while serious misdeeds unfolded.

If you have concerns about rogue board members or employees in your district, you would do well to acquaint everyone involved with the attorney’s reporting obligations in this area. Perhaps that heads-up to all concerned will help curtail bad behavior before there’s anything to report.

David Rubin is an attorney specializing in education law in Metuchen, N.J. E-mail: rubinlaw@att.net