Jeffrey Dzierbicki was a police officer with the Township of Oscoda, Michigan. In July 2007, Dzierbicki brought a lawsuit against the Township and its Police Chief. While the lawsuit was pending, Dzierbicki engaged in conduct that resulted in a disciplinary investigation by the Department.
Since Dzierbicki had litigation pending, the Township’s attorney was brought into the discussion as to whether Dzierbicki should be terminated. The meeting was attended by the attorney, the Chief of Police, the Township’s Superintendent, and two police sergeants who conducted the internal affairs investigation into Dzierbicki’s conduct.
Later in the litigation, Dzierbicki took the deposition of various individuals who were in attendance at the meeting. When the witnesses cited the attorney/client privilege as the basis for refusing to answer certain questions about the meeting, Dzierbicki challenged the refusal in court.
Engaging in a fairly thorough analysis of the issue, the Court found that the statements made in the meeting were protected by the attorney/client privilege. As the Court analyzed the issue, “when the client is an organization, such as a corporation or, as in this case, a Township, questions arise as to which employees of the organization are considered clients for purposes of the privilege. The answer to that question is that it depends upon the circumstances. The attorney/client privilege extends only to communications, and not to facts. Thus, a client may not be compelled to reveal what it said or wrote to its attorney, but may not refuse to disclose any relevant fact within its knowledge merely because it incorporated a statement of that fact into its communication to the attorney.”
The Court also found that the attorney/client privilege covered statements by even low-level employees to the employer’s attorney conducting an investigation or a fact-finding mission. Citing a Supreme Court case, the Court observed that “the privilege exists to protect not only the giving of professional advice to those who can act on it but also for giving of information to the lawyer to enable him to give sound and informed advice because the first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.”
Applying these principles to Dzierbicki’s case, the Court found that “the attorney/client privilege extended to the communications made during the meeting with the Township’s attorney. The privilege was not waived by the presence of the internal affairs investigators since the reason for their presence was to give information to the lawyer to enable him to render a sound and informed legal advice to the Township decision makers.”
Dzierbicki v. Township of Oscoda, 2009 WL 1491116 (E.D. Mich. 2009).
This article appears in the August 2009 issue