Law

This agenda is subject to change.

Law

Monday, November 13

9:00 a.m. - 11:45 a.m.
Location: Chase
9:00 a.m. - 11:45 a.m.

Agenda to be distributed at meeting.

Wednesday, November 15

Location: Key 9
9:00 a.m. – 10:15 a.m. C1

To Know or Not to Know: That is the Ethical Question

Scenario: A State Right-to-Know (RTK) requester was the Appellant in ongoing litigation he filed against a State utility in a court proceeding. The RTK requester asked the State public utility commission (PUC) for e-mail exchanges between counsel for the PUC and counsel for the utility regarding the PUC’s strategy and participation as amicus curie in that court proceeding, as well as disclose the exchange of draft legal arguments. Because these communications were an attorney-client work product between the Commission’s attorneys and the utility’s counsel and were PUC counsel’s legal strategies and consultations in furtherance of representation of the PUC’s legal interest, those communications were withheld as confidential attorney-client and attorney work product.

The RTK requester appealed and the State Office of Open Records (OOR) ordered the disclosure of the communications. The OOR determined that because no confidentiality agreement existed between the PUC attorneys and the utility’s counsel, and the Commission was only an amicus party, the Commission waived the privilege. OOR created a new separate standard for government attorneys when only the State Supreme Court has jurisdiction over the practice of law. No such requirement of an agreement exists when attorneys share the same litigation position. The OOR also ignored the ethical dilemma placed upon the attorneys by granting the RTK requester and his attorney access to privileged documents that could never be obtained under the Canons of Ethics. The ethical question was also raised for attorneys acting as solicitors for municipal governments, which are subject to the RTK Law in that State.

Attendees will:

  • Learn how to identify information and certain types of records to determine if the record fits the definition of a State’s RTK Law.
  • Review how to determine if a record is a public document or if it is protected by exemption from disclosure.
  • Participate in a discussion on the ethical responsibility to protect certain types of information balanced against transparency of government operations and the public’s right to know.

Facilitators:

Hon. David Sweet, Pennsylvania 

Rosemary Chiavetta, Secretary, Pennsylvania