A basic tenant of the western legal construct says that a client’s communication with its attorney is “privileged” or protected. The reason being is the private and open communication between an attorney and client is critically necessary in order to deliver sound legal advice and advocacy. The attorney-client privilege becomes even more critical when two parties are involved in litigation. Gaining access to another parties’ private communication could provide huge and unfair advantages.
OHA has recently filed a motion before the circuit court to determine whether the State auditor should be provided access to OHA information that is protected by the attorney-client privilege. OHA sought this determination from the court after the State auditor’s requests; we provided thousands of documents and conducted interviews. The information in question is from executive session meeting minutes of the board that have been partially redacted to protect attorney-client communications. We provided the documents requested but the auditor wanted unredacted minutes.
The auditor has the power to subpoena the records he seeks, but a subpoena would require him to go to the court and make the case for why he is entitled to privileged information. The auditor chose not to subpoena the documents and to instead suspend the audit. This was shocking.
Our board has fiduciary obligations to make informed decisions and to exercise due diligence when making those decisions. We have a legal duty to protect the interests of the beneficiaries of this trust. We would NOT in good conscience, waive our attorney-client privilege without the guidance of a court. This was not an attempt by OHA to be uncooperative, it was a sound legal decision by the trustees of a large trust corpus.
Unfortunately, the State auditor and at least one member of this board have sought to politicize this issue and claim that OHA is withholding information. The auditor could have done his job and gone to the court to obtain the subpoena; he chose not to, thus, we decided to do it for him. We will get a ruling on this and move forward accordingly; we hope the auditor can do the same.