Sunday, June 8, 2008

Musings: Bird Talk

The birds, as usual, woke me this morning, and one told me that Derrick DePledge — briefly my colleague at The Honolulu Advertiser — is writing another series of stories on the Lingle connection to Hawaii Superferry.

The evidence, this little birdie said, seems to clearly point to the premise that the Lingle administration sought a legal opinion on whether an EIS was required, but ignored the opinion that was given.

Unfortunately, the birdie noted, the Lingle administration has refused to turn over any documents/communications that directly show the legal opinion that everyone knows was given. So it seems it is still technically in the realm of "speculation," however obvious.

Tweet, tweet.


Ed Coll said...

DCCA CATV asserts even the date of an opinion is covered by attorney/client privilege. The unasked question in response to the excuse of attorney/client privilege used to keeping public records from public eyes is, "The client has the absolute authroity to wave attorney/client privilege so why don't you as the client wave the privilege and tell the public. The simple answer is they, the client, and not the attorney, don't want the public to know the opinion their actions are based upon. In this case not even the date of the opinion. People who use this excuse are using attorneys to distance themselves from the brutal fact that they are the censors denying the publics right to know the basis from official actions. Thanks to media activist Jeff Garland for below:

Aloha Glen,
Let's try the 1st question one last time.
I requested a redacted copy of the first page of the AG's opinion to the DCCA regarding if the PEGs were subject to the State procurement code showing only the sender, recipient and date. I there was any attachment of a prior opinion, I asked for the same redaction treatment.
In anticipation of your likely denial I will ask now if you could at least provide the exact date(s) of the secretive opinion(s).

Jeff Garland

Response from DCCA
Mr Garland:
The AG's opinion to the DCCA, in its entirety, is covered under the attorney-client privilege and therefore will not be disclosed.

Glen Chock

Anonymous said...

"DCCA believes openness and accountability are crucial" !! ???gitaleyehi

Andy Parx said...

I had never heard this silly theory that public policy is not subject to release if a lawyer even sniffs at the document or meeting until Lani Nakazawa and Kaipo Asing cooked it up in 2001 or 2002. Now it is ubiquitous throughout the state. after Lingle and Bennett picked up on it to hide their SF actions. Les Kondo tried to fight it when he was the head of OIP but he got canned because he did and the new leadership is back to befuddlement.

The point is that the “client” in a public policy decision is the public, not the official receiving the advice. The only time atty.-client privilege is real between a government official and their county or state (or federal) attorney is when it covers personal liability such as charges of malfeasance negligence and the like. but now somehow advice on public policy is being claimed... it’s a joke.

Anonymous said...

From OIP Opinion Letter. No. 91-23

As the chief legal adviser to government agencies and
officials, the Attorney General provides legal advice in two
recorded forms. The Attorney General provides, in letter form,
"advice and counsel," to certain public officers concerning their
public duties. Additionally, the Attorney General issues
"opinions." Section 28-3, Hawaii Revised Statutes, requires the
Attorney General to file "opinions" on questions of law requested
by certain public officers with the Office of the Lieutenant
Governor, and requires that those opinions be made available for
public inspection. Additionally, section 28-4, Hawaii Revised
Statutes, provides that the Attorney General shall provide
"advice and counsel" to certain public officers and, unlike
section 28-3, Hawaii Revised Statutes, does not expressly require
the advice to either be filed with the Lieutenant Governor or be
made available for public inspection.
It is the position of the Attorney General that section
28-3, Hawaii Revised Statutes, only requires the public
availability of opinions: (1) that are requested by certain
public officers set forth in the statute, and (2) that are of
such significant statewide importance that they guide the actions
of government and, therefore, have been assigned an "opinion

Anonymous said...

Andy is mistaken.

Under the Model Rules of Professional Conduct, the government lawyer's client is the specific agency or body that employs him because it would be impossible to represent the abstract concept of "the public" or even of the entire government.

Hawaii Rules of Evidence Rule 503 on lawyer-client privilege mirror the federal rule. The Advisory Committee's Note to Proposed model Rule 503 states flatly that "[t]he definition of 'client' includes governmental bodies,"

Anonymous said...

"Andy is mistaken"

that's pretty much a given.

Larry said...

Indeed, the Attorney General is the government's attorney, and yes, it is the government agency that is keeping their correspondence with their attorney secret. That doesn't seem wrong to me.

Maybe people have a mis-impression that the AG is the people's attorney. This is just not true. For example, Felix parents suing the state to get a free appropriate public education for their children are up against the AG, defending the state's wrongdoing.

Also, the Board of Ed and many other government boards and agencies have held, and continue to hold, illegal secret meetings--for example, without public notice, or without a vote to go into executive session, and so forth. In those meetings they have held discussions that should have been held in full public view, according to the Sunshine Law.

Guess what--there is often a deputy AG in the meeting with them. Does the deputy tell them the meeting is illegal, or does the deputy participate? They participate fully in the illegal meeting.

So I submit, members of the jury, that the AG is often the state's partner in crime. You decide. And why would they let us know what they are up to, if they can get away with it?

DCCA, Superferry, whatever. The AG may say, "Whoa, you can't do that!!" Or the AG may not. We are not able to spy on their private conversations or correspondence. They are entitled to the privacy, same as any innocent citizen or criminal.

We need our own dedicated lawyers, and I'm grateful for the ones we have.

Anonymous said...

Larry is right that the AG should be able to have secret discussions when an agency wants a legal opinion before taking action. But if the AG concludes that the proposed action is illegal - and the client takes the action anyway - doesn't the AG lawyer have an ethical responsibility not to argue in Court that it was legal, if he's already on record stating its illegal.

And we are indeed very lucky for the few lawyers that do help us.

Ed Coll said...

Larry said, "Maybe people have a mis-impression that the AG is the people's attorney. This is just not true."

If it is not true then the government for whom the AG works must therefore also not represent the people.

Larry continues, "We need our own dedicated lawyers, and I'm grateful for the ones we have."

Why be grateful! If the government does not represent the people and the government write the laws to suit their needs, what use does an attorney serve?

Anonymous said...

Ed's syllogism is faulty. Just because the AG's client is the government and not the public, it does not follow that therefore the government itself does not represent the people.

Joan Conrow said...

Anonymous wrote: But if the AG concludes that the proposed action is illegal - and the client takes the action anyway - doesn't the AG lawyer have an ethical responsibility not to argue in Court that it was legal, if he's already on record stating its illegal.

Now that is an excellent point. And to take it one step further, why should taxpayers have to foot the bill for special sessions and court costs that stem from the client taking that illegal action?

Anonymous said...

It's not really that excellent of a point because of the difference between numbered AG opinions on the one hand, and legal advice on the other. Legal advice is more in the form of: on the one hand, this, on the other hand that, on balance we predict a court will rule in this way. It carries no legal weight and it isn't determinitive as to whether something is legal or illegal.

Joan Conrow said...

But in this case, it seems it was an opinion that was given, as opposed to "advice." Although if the guv and AG refuse to release any info related to it, it's hard to know for certain.

Anonymous said...

Depends on whether it turns out to be an actual, numbered AG opinion, or a memorandum of advice referred by a lay-journalist as "an opinion."

Larry said...

Ed seems to be suggesting that the government always acts as the representative of the people. Only in blog comments could this be said without much public ridicule.

People are always opposing, even suing, their governments. And they often win.

In this country, with corporations financing elections and newspapers (owned or paid by the same corporations) cheerleading war, most people are aware that corporate interest is not only strong, but often trumps the interests of the public who voted in their representatives.

So we still need attorneys to represent us, yes, against our government and our elected representatives..

My own favorite example close to home: In 1993 the State of Hawaii was forced to admit in court that by providing special education services to only 273 children (if memory serves) it was in gross violation of federal law. The state spent the next decade trying to do as little as possible for the children as the settlement dragged on. A series of attorneys general and their deputies facilitated this effort. The state remained in violation the whole way, and was found in contempt of court as well. IMHO it is an excellent example of long-term lawbreaking by our own state government, represented along the way by the AG. And yes, we citizens paid for the AG's anti-child efforts. At the end, I think something like 11,000 students were served, in agreement with national numbers (if section 504 children are included, I think that number goes to 23,000 but I could have these numbers wrong).

This IS the way our system of government works. And as I said before, I'm thankful for the attorneys we have who were and are willing to dig in and help us set things right.

A courtroom is a somewhat civilized and remote battlefield, but necessary opposition also takes place in streets, at neighborhood board meetings, at public hearings, on radio, TV and in the newspapers and blogs. That's really the American way. Not trusting our elected representatives to have more wisdom somehow than we do. Quite the opposite. We need to keep them honest, considering who is greasing their palms.

Joan Conrow said...

Yes, and the key issue remains whether we, the public, anonymous attorneys and "lay-journalists" alike, will get to see it so we can make that determination.

Anonymous said...

If it's advice and not a numbered opinion then probably no such luck.

Joan Conrow said...

Yes, Larry, thank goodness for those attorneys who actually do something for the community and "are willing to dig in and help us set things right."

Anonymous said...

That's right. Because if you're an attorney who's not suing the state or the superferry over an eis then you're just not doing anything for the community.

Andy Parx said...

The dividing line, as I said, is whether it is public policy that the AG or CA is advising upon. Just because the CA or AG doesn’t issue a numbered opinion doesn’t make it automatically not a public policy matter. “Because I said so” is not a good enough reason to call public policy a personal consultation on legal “powers, duties, responsibilities and liabilities” as the sunshine law exemption reads.

But what has happened is that there now is no public policy according to this new “interpretation” If atty-client trumps the sunshine law then why have a sunshine law- it should be evident that the sunshine law provides exceptions to other legal requirements of atty-client as regard public policy..

Anonymous said...

How do you arrive at the conclusion that public policy is the dividing line? Under HRS 28-4, advice to public officers not requiring public inspection covers: "giv[ing] advice and counsel to the heads of departments, district judges, and other public officers, in all matters connected with their public duties, and otherwise aid and assist them in every way requisite to enable them to perform their duties faithfully."

That will clearly involve at times matters of public policy.

Also, the sunshine laws concern open meetings requirements. That's not really an issue here.

Mauibrad said...

The Attorney General is the peoples' lawyer, not just the Governor's lawyer. This narrow "attorney-client" privilege would/should not hold up under appeal.

Aloha, Brad

Anonymous said...

The AG is not just the governor's lawyer. But it is the lawyer of whatever individual, department, agency or other entity it is giving legal advice to. And the privilege runs between them.

Anonymous said...


Just because you want it, doesn't make it so.

This is a subject for the Legislature to address. They have power here to force a change in the process (or withhold funds!).

Ed Coll said...

The government body says, "Our actions are lawful because we have a legal opinion from the AG that says they are, but we don't want to show you the opinion -- just trust us."

Anonymous said...

I guess the birds were mistaken. DePledge's article this morning makes clear it was advice and not "an opinion."

Joan Conrow said...

Well, they were shama thrush and not legal eagles, so I'll cut 'em a little slack. Main thing, they got the gist right.

Andy Parx said...

That’s the point- when does getting “advice on duties” become a request for an opinion? Is it just the say so of the one asking the question? The new current system seems to say that it just an arbitrary- and then probably capriccios- choice so as to make any distinction impossible. But there is a law saying “opinions” are public as opposed to advice on duties so it must mean something has to be an opinion.

Is it whether it’s in writing that makes the difference- that seems silly. It would seem that when the opinion regards public policy it is no longer a simple question on the official’s duties, which is a pretty limited term to begin with.

Do duties include politics? I don’t think so no matter how ubiquitous political considerations are in the performance of government officials. “Common sense” says political considerations it what is wrong in decision making not that it’s something we embrace- or should even put up with, human nature notwithstanding

Anonymous said...

Whether the AG files a formal opinion is entirely in the discretion of the AG.