Suffolk Const. v. Capital Asset Management

• Citation: 870 N.E.2d 33,449 Mass. 444
• Parties: SUFFOLK CONSTRUCTION CO., INC. v. DIVISION OF CAPITAL ASSET MANAGEMENT.
• Decision Date: 13 July 2007
• Court: United States State Supreme Judicial Court of Massachusetts

870 N.E.2d 33

449 Mass. 444

SUFFOLK CONSTRUCTION CO., INC. v. DIVISION OF CAPITAL ASSET MANAGEMENT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 2007.

Decided July 13, 2007.

Christopher W. Morog, Boston (Joel Lewin & Jeremy Blackowicz with him) for the plaintiff.

Daniel J. Hammond, Assistant Attorney General, for the defendant.

The following submitted briefs for amici curiae:

Christopher J. Petrini, Framingham, Glenna J. Sheveland, & Thomas J. Urbelis, Boston, for City Solicitors and Town Counsel Association.

Roscoe Trimmier, Jr., Richard J. Lettieri, Michael J. Howe, David S. Mackey, Boston, & Shelly L. Taylor for Massachusetts Port Authority.

Edward V. Colbert, III, for Boston Bar Association.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

The issue in this case is whether, by enacting the public records law, G.L. c. 66, § 10, and G.L. c. 4, § 7 Twenty-sixth, the Legislature intended to extinguish the protection provided by the attorney-client privilege to public officers or employees and governmental entities subject to that law. The case arises in conjunction with a dispute between Suffolk Construction Co., Inc. (Suffolk), as general contractor, and the defendant, the division of capital asset management and maintenance (DCAM),¹ over payment of construction costs for the renovation of the public building in Boston now known as the John Adams Courthouse (the project). In the course of the dispute, Suffolk made two public records requests to DCAM for documents concerning the project. In response, DCAM produced approximately one-half million pages of documents, as well as an index of documents withheld from disclosure on grounds of, among other reasons, attorney-client privilege. Suffolk maintained that the production of the privileged information was required under our holding in General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 711 N.E.2d 589 (1999) (General Elec. Co.), in which we declined to find an implied exemption in the public records law for information otherwise protected by the attorney work-product doctrine.

In accordance with the public records law, Suffolk filed a complaint in the Superior Court for declaratory and injunctive relief. See G.L. c. 66, § 10(b). The Superior Court judge denied Suffolk's motion for preliminary injunctive relief and simultaneously reported the following question of law to the Appeals Court: "Do the provisions of the public records law, comprised of G.L. c. 66, § 10[,] and G.L. c. 4, § 7(26), preclude the protection of the attorney-client privilege from records made or received by any officer or employee of any agency of the Commonwealth?" See G.L. c. 231, § 111; Mass. R. Civ. P. 64(a), as amended, 423 Mass. 1403 (1996). We granted the parties' joint application for direct appellate review.²

We answer the reported question in the negative. As we discuss more fully below, the attorney-client privilege is a fundamental component of the administration of justice. Today, its social utility is virtually unchallenged. Nothing in the language or history of the public records law, or in our prior decisions, leads us to conclude that the Legislature intended the public records law to abrogate the privilege for those subject to the statute. The result Suffolk seeks—a global withdrawal of the attorney-client privilege from all documents and records of officials and agencies subject to the public records law—is not required by the plain terms of the public records law. It would also severely inhibit the ability of government officials to obtain quality legal advice essential to the faithful discharge of their duties, place public entities at an unfair disadvantage vis-à-vis private parties with whom they transact business and for whom the attorney-client privilege is all but inviolable, and impede the public's strong interest in the fair and effective administration of justice.³ Answering the reported question in the negative, we remand the case to the Superior Court for further proceedings consistent with this opinion.

1. Background. The factual record is uncontested. In 2001, DCAM designated Suffolk and a joint venture partner⁴ as general contractor for the historic restoration of the so-called "old" Suffolk County Court House, now the John Adams Court House, in Pemberton Square, Boston. In the course of its work, and in connection with changes in construction plans and schedules, Suffolk submitted to DCAM a number of "proposed change orders," including omnibus proposed change order 704. If accepted in full, the proposed change orders would have substantially increased DCAM's payments to Suffolk under the contract.⁵ In April, 2004, after evaluating proposed change order 704 with its architects and consultants, DCAM denied payment thereunder.

On October 7, 2004, Suffolk served two comprehensive public records law requests on DCAM. See G.L. c. 66, § 10(a). Among other things, Suffolk sought to "inspect and review all documents of every kind" related to the project, including "all documents between and among [the executive office for administration and finance] and/or DCAM, their counsel, agents, employees, consultants and/or counsel for other entities regarding this request." Suffolk claimed that such documents could not "be withheld in light of the holding" in General Elec. Co. Over the next eleven months, in what the judge termed "an ongoing incremental process," DCAM produced a large volume of material to Suffolk. Concurrently with the release of documents, DCAM created what the judge termed "an evolving privilege log" that, in its most relevant iteration, identified 189 documents withheld from public inspection on the ground of attorney-client privilege.

In August, 2005, Suffolk filed a verified complaint against DCAM for declaratory and injunctive relief, seeking to compel inspection and review of the withheld documents. See G.L. c. 66, § 10 (b). Simultaneously, Suffolk moved for a preliminary injunction seeking essentially the same relief.⁶ DCAM opposed the motion. Four days after Suffolk filed its complaint and motion for preliminary injunction in the instant action, it filed a complaint against DCAM in the Superior Court for breach of contract, in which it sought damages allegedly resulting from uncompensated extra work on the project.

The Superior Court judge hearing the public records law complaint issued four simultaneous rulings. The first denied Suffolk's motion for preliminary injunction on the grounds that, among other things, "the merits remain arguable, ... the balance of irreparable harm in light of the merits favors the defendant . . ., [and a] preliminary injunction would alter, rather than preserve, the status quo." See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-622, 405 N.E.2d 106 (1980). The second ruling ordered DCAM, among other things, to enlarge its privilege index to include additional information relating to its claim of attorney-client privilege.⁷ A third order consolidated the two actions Suffolk filed against DCAM. Finally, recognizing that a ruling on Suffolk's preliminary injunction plea would dispose of the public records case, and that the issue raised by Suffolk had not previously been decided by our appellate courts, the judge reported the above question.

In its brief to this court, Suffolk questions whether, under our common law, we recognize an attorney-client privilege in the public sphere. We turn first to this threshold question and, concluding that such a privilege does exist, then consider whether it is abrogated by the public records law.

2. Discussion. a. The attorney-client privilege.⁸ The general features of the attorney-client privilege are well known: the attorney-client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice. See, e.g., Matter of John Doe Grand Jury Investigation, 408 Mass. 480, 481, 562 N.E.2d 69 (1990), quoting Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 32 L.Ed. 488 (1888) ("seal of secrecy" on confidential communications between client and counsel); Foster v. Hall, 29 Mass. 89, 12 Pick. 89, 93 (1831) ("the general rule [is] that [where] matters [are] communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony"). Dating at least from the age of Shakespeare, "[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

One obvious role served by the attorney-client privilege is to enable clients to make full disclosure to legal counsel of all relevant facts, no matter how embarrassing or damaging these facts might be, so that counsel may render fully informed legal advice. In a society that covets the rule of law, this is an essential function. See, e.g., Hatton v. Robinson, 31 Mass. 416, 14 Pick. 416, 422 (1834) (attorney-client privilege exists to enable attorney to "successfully to perform the duties of his office").

The individual benefits of the attorney-client privilege mirror its more global functions. By "encourag[ing] full and frank communication between attorneys and their clients," the attorney-client privilege "promote[s] broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, supra. Paradoxically, this is so even though the attorney-client privilege may impede access to relevant facts. The attorney-client privilege "`creates an inherent tension with society's need for full and complete disclosure. . . .' But that is the price that society must pay for the availability of justice to every citizen, which is the value that the privilege is designed to...