The State Records Committee ruled Thursday that communications between state attorneys -- when representing agencies on opposing sides of a case -- are public and not protected under attorney-client privilege or attorney work product.
The 3-2 decision came after members reviewed the requested documents, including e-mails and attachments, behind closed doors.
At issue were communications between assistant attorneys general who represent the state's Division of Finance and Criminal Appeals.
The Utah Federal Defender office sought exchanges concerning defender pay and efforts to shape legislation concerning the state's compensation policy. The AG's criminal appeals division prosecutes death-row appeals, while the state's finance division pays the public defenders who represent the condemned.
"There's an argument that the money provided is so insufficient that it's violating both a statutory and constitutional right for effective representation by counsel," said Records Committee member Betsy Ross.
Ross said she could see no common interest between the Criminal Appeals division and the Division of Finance in this instance -- which would have provided the basis for the documents to be protected as attorney work product or under attorney-client privilege.
"The AG's office itself generally recognizes that there are occasions where there may be a conflict between its agencies and its own attorneys," Ross added. "Then they erect a 'Chinese wall'… this is one of those cases."
Committee member Lex Hemphill differed with Ross, asserting that the AG staff wanted to ensure the free flow of intra-office advice without fear the exchanges could be made public.
"For me, this is the kicker," Ross countered, speaking in terms specific to this records request. "[Insufficient pay] provides that no attorney will take the case. Then the prisoner must defend himself. That's his last option."
Brett DelPorto, assistant attorney general for the criminal appeals division, agreed with Ross's premise but said the documents in this case did not support her argument.
"The 3-2 vote showed there are some genuine issues about whether or not the documents we provided are privileged," DelPorto said.
That wiggle room could lead to a District Court appeal of the committee's ruling. DelPorto said that AG staff will discuss that option over the next few days.
"Betsy Ross laid it out correctly," said Daryl Sam, research and writing attorney for the Utah Federal Defender Office. "There's a conflict between those divisions and that's the issue. We'll see where it goes from here."
» The State Records Committee will issue its decision in writing in five business days. Then the Attorney General's office has 30 days to appeal.
» Last month, the Utah Supreme Court issued a similar ruling, striking down the state's claim of attorney-client privilege and attorney work product regarding possible litigation over roads across Utah's wilderness lands.
