Ending Agency Abuse of Attorney-Client
by Oregon Senator Doug Whitsett, Senate District 28
Attorney-client privilege is an uninfringeable pillar of
our legal system. That system rightfully and
unambiguously protects disclosure of those
communications. Further, attorneys are specifically
excluded from being compelled to testify regarding most
communications with their client in any legal
Regrettably, some state agencies are inappropriately
manipulating attorney-client privilege as a shield
against public disclosure laws.
The Oregon Department of Justice (DOJ) provides legal
services to most state agencies. An Attorney General
Opinion (Opinion) generally carries the force of law.
Agencies are permitted to apply the Opinion as if it
were law, until or unless it is overturned by the
courts, or by an act of the Legislative Assembly.
Opinions issued by the DOJ are public record. Citizens
who may wish to challenge an Opinion have full access to
its wording and legal reasoning. Their attorneys may
base their arguments on statutes, administrative rules
or case law that they believe contradicts the Opinion.
However, Oregon law appears to be silent on the
disclosure of “legal advice” provided by a DOJ attorney
to an agency. Using that ambiguity in the law, agencies
may simply ask their DOJ attorney for “legal advice”
rather than requesting a formal written Opinion.
At least two state agencies are now declaring they are
not required to disclose “legal advice” from their DOJ
attorney. Further, they are refusing to disclose the
advice, under the protection of attorney-client
privilege, while using the same advice to enact
administrative rules or written orders.
The Oregon Department of Energy (ODE) purportedly
obtained advice from an attorney regarding the sale of
the controversial Business Energy Tax Credits (BETC).
That advice allegedly authorized third-party sales of
BETCs at discounts that appear to be greater than
allowed by statute.
Subsequent to the claimed receipt of that legal advice,
ODE allowed BETC sales brokered by private third parties
at up to at least 25 percent discounts. The agency also
planned to create an administrative rule retroactively
authorizing those BETC sales, allegedly based on the
same legal advice.
ODE has refused to make the claimed legal advice
available to the news media, the public, legislators and
even to members of its own staff. The agency has even
declined to disclose the source of the advice.
The management at ODE has based its refusal to disclose
public information on claims of attorney-client
privilege. The Oregon Attorney General appears to concur
with that allegation.
The Oregon Water Resources Department (OWRD) claims to
have received advice from its DOJ attorney authorizing
its regulation of irrigation wells located on the
historic Klamath Indian Reservation. OWRD did not
regulate the wells prior to its alleged receipt of this
The OWRD subsequently issued written orders shutting
down many of those wells during the 2015 irrigation
season. The agency has repeatedly denied requests to
disclose the legal advice upon which it claims it based
the regulation of the wells. OWRD claims the legal
advice is privileged communication between the agency
and its DOJ attorney.
The rules of discovery in a court of law generally do
not apply to proceedings in administrative law. Citizens
attempting to challenge the validity of those rules or
orders are placed at an immense disadvantage when the
administrative rules or written orders are based on
undisclosed legal advice.
Their attorneys have no way of determining either the
content of the legal advice or the legal reasoning upon
which the agency based its rule or order. They may be
prevented from discovering that critical information
both by the rules of administrative law and the shield
of attorney-client privilege.
According to Legislative Counsel, the team of attorneys
who drafts and interprets state laws for the
Legislature, no Oregon statute prohibits this
misapplication of attorney-client privilege protection.
The two state agencies appear to be within their legal
I am deeply concerned that other state agencies will
soon adopt this strategy to avoid disclosure of legal
advice that they may subsequently use to regulate the
public through administrative rule or order. This
unacceptable abuse of attorney-client privilege by state
agencies needs to be addressed.
For that reason, I have asked legislative Counsel to
draft legislation for that purpose during the February
The proposed law will require an order expressed in
writing, or an administrative rule adopted by an agency,
to include a summary of any legal advice upon which the
agency bases the validity or effect of its order or
rule. To ensure that it is comprehensive and accurate,
the content of the required summary may be appealed to
I fully expect the bill to meet strong resistance by
those who may see its purpose as an attack on the
sacrosanct doctrine of attorney-client privilege. That
is neither the bill’s intent nor its legal outcome.
The bill actually safeguards attorney-client privilege.
It requires no testimony or disclosure of claimed
privileged, restricted or confidential information by
either client or attorney. Further, it does not even
require disclosure of the source of the legal advice.
However, the bill will require an agency to provide an
accurate written condensation of the legal theories and
precedents included in the legal advice upon which the
agency bases an administrative rule or written order.
That brief may be reviewed upon request by the courts to
ensure a comprehensive and accurate summation.
All of the scandals that lead to the resignation nearly
a year ago of former Governor John Kitzhaber amid
allegations of corruption and influence peddling
demonstrate the lack of transparency and accountability
in our state government. Governor Kate Brown called for
and promised greater accountability and transparency in
her inaugural address.
This bill will help address the Governor’s promise by
limiting the ability of agencies to shield their legal
opinions from public scrutiny. It will go a long way
towards making state government more responsive to the
public it is intended to serve.
Please remember--if we do not stand up for rural Oregon,
no one will.