October/November 2026 Issue

Also in this issue: The MGS Public Utility Status Case Is About More Than Just a Power Line     |     The PSC’s Decision in Docket 5-BS-296: Regional Cooperation, Utility Regulation, and the Limits of Traditional Cost-Of-Service Ratemaking     |     Governor’s Race Could Reshape Wisconsin’s Utility and Natural-Resources Leadership

A Refresher On Attorney-Client Privilege

Heather Curnutt | 11.11.26

Municipalities seek legal advice for various reasons. The attorney-client privilege protects from disclosure communications between an attorney and the attorney’s municipal client if the communications are intended to be confidential and are “made for the purpose of facilitating the rendition of professional legal services to the client.” Wis. Stat. § 905.03(2). The attorney-client privilege is narrowly construed, but, where it applies, it is absolute and applies even after the legal representation has ended or the specific legal matter has been resolved.

Communications that are protected by the attorney-client privilege can be disclosed if the client decides to waive the privilege. Only the client can waive the privilege. Unless an exception to the privilege applies, an attorney cannot choose to disclose confidential communications with a client without the client’s approval. In the case of a municipal client, the municipality owns the privilege. As a result, attorney-client privilege can be waived by a municipality only by an individual or entity with authority to make that decision for the municipality. Thus, waiver of attorney-client privilege may require a vote of the municipality's governing body. An individual municipal employee or official who seeks and receives legal advice on behalf of a municipality does not own the privilege and cannot waive the privilege without authorization from the municipality.

Attorney-client privilege is waived if the client voluntarily discloses or consents to disclosure of the communication. In addition, a client’s intentional disclosure of one communication may forfeit the attorney-client privilege with respect to another communication if the communications concern the same subject matter and “[t]he disclosed and undisclosed communications ought in fairness to be considered together.” Wis. Stat. § 905.03(5)(b). Whether fairness requires the communications to be considered together is determined on a case-by-case basis and is most likely to be found in a litigation setting. If a municipality inadvertently discloses privileged attorney-client communications, it should immediately contact the person to whom the disclosure was made, acknowledge the mistake, explain that the municipality is not waiving attorney-client privilege, and ask for the privileged communication to be returned or destroyed. The municipality should alert its attorney in the event of an inadvertent disclosure and may ask the attorney to take these steps on its behalf.

There are five statutory exceptions to the attorney-client privilege that are listed in Wis. Stat. § 905.03(4). The exceptions include where the legal services were sought to help “commit what the client knew or reasonably should have known to be a crime or fraud” or if the communication is “relevant to an issue of breach of duty by the lawyer to the lawyer’s client or by the client to the client’s lawyer.” Wis. Stat. § 905.03(4). If two or more clients jointly hired a lawyer, attorney client privilege does not apply to prevent the communications being offered in an action between any of the clients, but the communications remain privileged with respect to third parties.

Because attorney-client privileged communications are specifically exempted from disclosure by state law in Wis. Stat. § 905.03, attorney-client privilege is grounds to deny a public records request. If only a portion of a requested record is protected by attorney-client privilege, the privileged portion should be redacted and the remainder of the record provided. If any municipality has questions about attorney-client privilege, please reach out to a member of the Boardman Clark’s Municipal Law Practice Group.