Confidentially Yours: Attorney-Client Privilege for Schools

Recent developments related to SSAA Section 31aa funding have put the attorney-client privilege squarely in the spotlight for Michigan schools. Understanding the attorney-client privilege, as well as how it can be maintained or lost, is critical now more than ever for school officials.

What Is the Attorney-Client Privilege?

The attorney-client privilege is one of the oldest and most fundamental doctrines in law. It shields communications between an attorney and a client (or their representatives) made in confidence and for the purpose of obtaining or providing legal advice. It encourages open and honest dialogue so school officials can discuss sensitive facts and legal risks with legal counsel without fear that these discussions will be publicly disclosed or used against the school in litigation. That protection promotes the public interest because it allows a school to safely obtain complete and accurate legal advice to develop sound public policy.

The privilege covers legal opinions, emails seeking legal guidance, strategy discussions, notes related to legal advice, and similar records. Importantly, the privilege belongs to the client, meaning the client controls whether it is asserted or waived.

Attorney-Client Privilege Under Michigan Transparency Laws

Michigan’s Freedom of Information Act (FOIA) gives the public the right to inspect the school’s public records. Not all records, however, must be disclosed. FOIA Section 13(1)(g) exempts from disclosure “information or records subject to the attorney-client privilege.” The FOIA exemption applies only to communications genuinely seeking or providing legal advice.

When a school receives a FOIA request, it may withhold legal memoranda, attorney-written advice, or other privileged communications, so long as those communications genuinely fall within the privilege. This privilege ensures that sensitive legal discussions remain confidential.

Similarly, Michigan’s Open Meetings Act (OMA) requires that school boards conduct business in meetings open to the public. There are statutory exceptions allowing certain topics to be discussed in closed session, including legal advice.

Under OMA Sections 8(1)(e) and 8(1)(h), a school board may enter closed session to consult an attorney regarding litigation strategy or to discuss material exempted by state or federal law, including attorney-client privileged records, since they would be exempt from disclosure under FOIA.

A public body cannot use a closed session under the attorney-client privilege exception to broadly debate policy, economics, or politics. All discussion must remain limited to the purpose of the closed session, such as to deliberate on strategy with legal counsel or to discuss written legal advice. To use the attorney-client privilege record exemption, a written legal opinion is necessary – oral legal advice alone does not justify a closed session under OMA Section 8(1)(h). Remember that closed session is limited to discussions; all board action must occur in an open meeting.

Waiving the Attorney-Client Privilege

Privilege is a powerful tool, but it is not absolute. The attorney-client privilege can be waived in several ways, sometimes unintentionally, including:

• Disclosing legal advice to a third party outside the attorney-client relationship;
• Placing legal advice “at issue” in defending a decision (e.g., “We did this because our lawyer said it was allowed”); or
• Failing to maintain confidentiality measures (e.g., storing privileged records on shared drives).

Why the Attorney-Client Privilege Matters for Schools

Schools rely on legal counsel to navigate complex issues, including student safety, discipline, special education, contracts, and emerging funding requirements like SSAA Section 31aa.

The attorney-client privilege ensures that school officials can receive candid legal advice and share all relevant facts without fear of public disclosure. This protection aids schools in forming sound public policy. A waiver of privilege, intentional or accidental, opens the door for internal legal advice and decision-making to be scrutinized by the public and by opposing parties, placing schools at real risk of reputational damage and substantial legal exposure.