Closed Session Deep Dive: Attorney-Client Privilege

The open meetings law requires all official meetings of public bodies to be open to the public. G.S. 143-318.10(a). However, government bodies can hold closed-door meetings, known as closed sessions, under certain limited circumstances. This post focuses on closed sessions for the purpose of preserving the attorney-client privilege and is Part 2 of a series examining each of the closed session purposes.

Purpose (a)(3): Attorney-Client Privilege

Under G.S. 143-318.11(a)(3), public bodies can hold closed sessions to consult with their attorneys in order to preserve attorney-client privilege. This subsection contains a couple of clear restrictions. First, general policy discussions, even those that involve an attorney, are not appropriate for closed session under this purpose. Furthermore, merely inviting an attorney does not justify holding a closed session. Finally, if a public body approves or considers a settlement in closed session, the terms of that settlement must be reported to the public body and entered into its minutes as soon as possible after the conclusion of the settlement.

The subsection also contains at least one specific authorization. The public body can consider and instruct its attorney on the handling of a settlement, judicial action, mediation, arbitration, or other administrative procedure.

Let’s walk through the statute.

“To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege which is hereby acknowledged.”

This type of closed session must be held to consult with an attorney employed or retained by the public body. A board member’s personal attorney does not satisfy this requirement, while a formally appointed or contracted city attorney or county attorney does. Additionally, the closed session must be for the purpose of preserving the attorney-client privilege, meaning that the discussion must center on matters within the scope of that privilege.