Appeals Court Issues Decision Clarifying in Detail the Attorney-Client Privilege of Municipal Entities

In a decision issued on March 28, 2025 a panel of the Massachusetts Appeals Court has analyzed in detail the attorney-client privilege of municipal entities. Kay v. Town of Concord, No. 23-P-1271 (2025), involved an appeal from a Superior Court judgment that the plaintiffs were not entitled to obtain unredacted emails involving communications between Town officials regarding a public dispute regarding a trail in the Town and abutting property owners. The Town had redacted the emails in response to a discovery request and a later request under the Public Records Law on the basis that they were communications covered by the Town’s attorney-client privilege and by the work product doctrine (both of which municipal privileges had been established by prior decisions).

On appeal the Appeals Court affirmed in part and reversed in part. The court first rejected the plaintiffs’ argument for a per se rule that the privilege could not apply to all emails that did not involve the Town’s attorney. Noting prior decisions at odds with this argument, the court observed in addition that there was no dispute that the Town is a “client” or that the Town Manager and members of the Select Board are the Town’s “agents”. The court pointed out that in order for the Town to obtain legal advice or to discuss taking action based on that advice, some discussions “will necessarily be outside of direct communications with counsel.” The court therefore held that “when the town manager and members of the select board communicate amongst themselves for the purpose of obtaining legal services, … those communications may be protected by the [Town’s] attorney-client privilege” even if the Town’s attorney is not on the communications.

Next, the court noted that it was not expanding the generally narrow scope of the attorney-client privilege but that, instead, the Town had to show that each of the communications still meets the requirements of that privilege. It observed that the absence of counsel in a communication is one relevant factor. In those circumstances the court held that “the ultimate standard” is “whether the communication revealed legal advice from, or the intent to request legal advice from, an attorney in some fashion.” Examining each email closely the court ruled that four emails met this test. It decided, however, that others did not. The court pointed out that “prior consultation with town counsel on a particular subject does not magically cloak all future discussions among municipal officials on that same issue”. Instead, these emails were “mere deliberations and musings among town officials” about “what to do with the trail” that would not have been privileged “even if town counsel is included.” In a footnote the court observed that “this is not a case where town officials communicated with each other at the behest of counsel to gather more information.”

The court also found that one email refers to information gathered by a town employee at counsel’s request. It held that because the email reveals “town counsel’s mental impressions” it fits within the Town’s separate work product privilege.[1]

One of the Justices also issued a concurring opinion emphasizing that the court’s ruling is consistent with the narrow scope of what is covered by the attorney-client privilege.

This is the first appellate decision that examines in detail the application of these privileges to municipal communications. It is unclear whether any party will seek further appellate review by the Supreme Judicial Court or whether such an application would be granted. Absent that, however, this decision provides important guidance to municipal/school officials regarding what is and is not covered by the attorney-client privilege and by the work product doctrine, both in terms of a public records request and in ensuring that communications will be considered privileged. There are nuances which are likely to vary from case to case and any doubts should be resolved by seeking the advice of counsel.

We are happy to provide advice in these and related areas to public entities and bodies.

[1] The court flatly rejected an argument by the plaintiffs that the Open Meeting Law is a “statutory waiver” of the Town’s attorney-client privilege, finding instead that the Law’s 2010 revision actually “strengthened” the privilege.

This update is provided for informational purposes only and should not be considered legal advice.