Extending Government’s Attorney-Client Privilege

By Ronald C. Minkoff

[Originally published in NYPRR November 2005]

No one disputes that officials at government agencies may invoke the attorney-client privilege in response to subpoenas by private parties to avoid disclosing communications they have had with agency attorneys. But what if the person requesting the information is also a government official, either from the same or a coordinate branch of government? And what if the information requested concerns possible criminal conduct?

Although this question has received surprisingly little judicial attention, the answer had until recently seemed well established. The Seventh, Eighth and D.C. Circuits had all ruled that no attorney-client privilege exists for communications between a government agency lawyer and an agency official in the face of a government prosecutor ‘s investigation of possible criminality. [See, In re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002) (Ryan); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (Lindsey); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (Clinton).]

But earlier this year, in In re: Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) (George), the Second Circuit placed itself at odds with this view. It held that Anne C. George, former chief legal counsel for the Office of the Governor of Connecticut, could invoke the attorney-client privilege and refuse to answer questions posed by federal prosecutors investigating wrongdoing by former Governor John Rowland. The Second Circuit’s opinion emphasizes the importance of the attorney-client privilege to the proper functioning of government agencies, and the dangers of eroding that privilege with seemingly harmless exceptions. Its reasoning, however, may not be as persuasive as first appears.

George Decision

In George, the Government subpoenaed George to the grand jury, seeking her testimony about certain conversations she had had with former Governor Rowland and members of his staff. The Governor’s office instructed her to invoke the attorney-client privilege. The Government sought an order to compel George to testify, and the District Court granted it, holding that: (i) the attorney-client privilege in this context had to yield to “the interests served by the grand jury’s fact- finding process;” and (ii) a government agency lawyer, unlike a private lawyer representing an individual client, owes a duty of loyalty not just to his or her agency, but “also [to] the public.” [George, 399 F.3d at 530.]

The Second Circuit reversed. It began with a ringing endorsement of the attorney-client privilege in general, based on its long history in the common law tradition:

“[C]ourts have by reason and experience concluded that a consistent application of the privilege over time is necessary to promote the rule of law by encouraging consultation with lawyers, and ensuring that lawyers, once consulted are able to render to their clients fully informed legal advice.” [Id. at 531.]

The Court went on to note that all parties conceded “that a governmental attorney-client privilege exists generally, and that it may be invoked in the civil context.” [Id. at 532.] The Court gave particular emphasis to Proposed Fed.R.Evid. 503 and Restatement (Third) of the Law of Lawyering §74, both of which make clear that the scope of the attorney-client privilege is the same in the governmental context as it is in the context of private corporations and individuals. [Id.]

Indeed, the Court noted that “the traditional rationale for the privilege applies with special force in the government context,” since “[u]pholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business.” [Id. at 533.] Protecting the privilege will encourage government officials to seek out legal advice when they need it, and will make internal governmental investigations easier by encouraging agency employees to speak freely to government attorneys. [Id.] The Court deemed the privilege to be so important, in fact, that it refused to consider arguments that the privilege should yield to the need to “search for truth” in a grand jury investigation (except for traditional exceptions such as the crime-fraud exception), since this would weaken the privilege and render it uncertain:

“In arguing that we ought not ‘extend’ the attorney-client privilege to the present situation, the Government asks us, in essence, to assign a precise functional value to its protections and then determine whether, and under what circumstances, the costs of these protections become too great to justify. We find the assumptions underlying this approach to be illusory, and the approach itself potentially dangerous… In the end, we do not view the question before us as whether to ‘extend’ the privilege to the government context, and our decision today does no such thing. Rather, we have simply refused to countenance its abrogation in circumstances in which its venerable and worthy purposes fully pertain.” [Id. at 536.]

***George’s Similarities & Differences with Ryan, Lindsey,* and *Clinton***

The Second Circuit’s reasoning is simple and clear. But when read in light of Ryan, Lindsey, and Clinton, it also may be wrong. To understand why, we have to begin with the many similarities George shares with those cases. First, the facts are similar: in Ryan, a federal grand jury sought to question the former Chief Legal Counsel to the Illinois Secretary of State in connection with a corruption investigation; in Lindsey, Independent Counsel Kenneth Starr sought to question a Deputy White House Counsel about communications he had with President Clinton regarding the Monica Lewinsky and Paula Jones affairs [158 F.3d at 1267, 1270]; and in Clinton, the independent Whitewater prosecutor sought access to communications that occurred in meetings attended by White House counsel, First Lady Hillary Clinton and Ms. Clinton’s personal attorney. [112 F.3d at 914.]

Second, and more important, the cases adopted the same touchstones. As in George, the Lindsey and Clinton courts began with a discussion of Proposed Fed.R.Evid. 503 and Restatement of the Law of Lawyering (Third) 574. [See, 158 F.3d at 1268–69; 112 F.3d at 915–16.] These were viewed, however, as merely stating the existence of a governmental attorney-client privilege generally — i.e., in disputes between the government and private parties — and not as applicable to “this dispute within the federal government.” [Id. at 915.] Indeed, both courts noted that these authorities contained exceptions for requests by one governmental entity to another: the Clinton court cited Proposed Fed.R.Evid. 502, limiting the governmental privilege to situations involving a pending investigation or litigation, [see id. at 916], while the Lindsey court cited Restatement §124, cmt. B, “More particularized rules may be necessary where one agency of government claims the privilege in resisting a demand for information by another.” [Lindsey, 158 F.3d at 1272.] Because neither the proposed evidence rules nor the Restatement were binding legal authority, the Lindsey and Clinton courts, as well as the court in Ryan, turned to Fed.R.Evid. 501, which states that privileges are “governed by the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.” [Ryan, 288 F.3d at 291, Lindsey, 158 F.3d at 1268; Clinton, 112 F.3d at 915-16.] These courts emphasized that although Fed.R.Evid. 501 “manifests a congressional desire to grant courts the flexibility to determine privileges on a case-by-case basis …’these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.’” [Ryan, 288 F.3d at 291, citing U.S. v. Nixon, 418 U.S. 683, 710 (1974).]

This analysis underscores a fundamental difference with the Second Circuit’s approach in George. In George, the court viewed the question before it as whether to create an exception to an established privilege [399 F.3d at 536], while in Lindsey et al. the issue was whether the privilege should be extended to cover the communications in question. [158 F.3d at 1272.] “These differences in approach are not simply semantical: they represent different versions of what is the status quo.” [Id.] Noting the absence of either “an existing body of case law” on which to rely or “a clear principle that the government attorney-client privilege has as broad a scope as its personal counterpart,” the Lindsey, Ryan, and Clinton courts invoked the general principle that “the attorney-client privilege must be strictly conformed within its narrowest possible limits,” and viewed the government officials’ proposed “extension” of the privilege with disfavor. [Id., citing In re Sealed case, 696 F.2d 793, 807 n. 44 (D.C. Cir 1982) (citations omitted); See also Ryan, 288 F.3d at 292; Clinton, 112 F.3d at 915–16.]

Upjohn Analysis

Another touchstone for all four courts was Upjohn Co. v. United States, 449 U.S. 383 (1981), which extended the attorney-client privilege to cover all communications between a corporation’s attorneys and corporate employees that are necessary to or involve the rendering of legal advice to the corporation. The George court noted that if private corporations may obtain the benefit of an expansive attorney-client privilege in order to ensure that they act within the law [see Upjohn, 449 U.S. at 389, 392], these considerations have even greater force in the governmental context, where an expanded privilege “furthers a culture in which consultation with government lawyers is accepted as a normal, desirable and even indispensable part of conducting public business.” [399 F.3d at 534.]

The other three Circuits had a different take on Upjohn, emphasizing the contrasts between “the government and nongovernmental organizations.” [Clinton, 112 F.3d at 920.] First, and perhaps foremost, they noted that the actions of a government official cannot expose the government, or even the specific agency, to either civil or criminal liability, while the opposite is true of corporations. [Id., Ryan, 288 F.3d at 293–94.] This has two related implications: private corporations have a greater need for the protections of the privilege, because their need to encourage employees to help ferret out internal wrongdoing is greater [Clinton, at 920], while the privilege is not required to incentivize government agencies themselves to comply with the laws (since they face no liability for failing to do so). [Ryan, 288 F.3d at 294.]

This, however, begs the question of governmental employees. Don’t they need the protections of the privilege in order to come forward and reveal misconduct within the agency? But these employees have a fundamentally different role than those who work within a private corporation. As the Ryan court noted: “Public officials are not the same as private citizens precisely because they exercise the power of the state. With this responsibility comes also the responsibility to act in the public interest.” [Id. at 294; see also Clinton, 112 F.3d at 920.] This is even more true of governmental lawyers, who are bound by both statute and tradition to turn over to prosecutors evidence they uncover of criminality within the agency — not to cover it up. [See, 28 U.S.C. §535(b), requiring agencies of the executive branch to report possible criminal violations to the Attorney General; Lindsey, 158 F.3d at 1272–76, providing historical examples of government lawyers assisting in criminal investigations.]

Fiduciary Exception

All this reflects the simple reality that Executive Branch employees, whether layman or lawyers, are public officials being paid with public funds to perform the public good. “It would be both unseemly and a misuse of public assets to permit a public official to use a taxpayer-provided attorney to conceal from the taxpayers themselves otherwise admissible evidence” of wrongdoing. [Ryan, 288 F.3d at 293.] Indeed, government employees must always keep in mind who their real constituents are. In this regard, the Lindsey and Ryan courts drew another, more appropriate analogy to the corporate context: the fiduciary exception to the attorney-client privilege. [See, Garner v. Wolfinbarger, 430 F.2d 1093, 1011 (5th Cir. 1970), describing this exception.] Just as corporate officials may not assert the privilege to keep their communications with the corporation’s attorneys about corporate business away from the shareholders they serve, so may government officials not invoke the privilege to keep evidence of their own wrongdoing from the public “to whom [they] owe [] ultimate allegiance.” [Ryan, 288 F.3d at 294; Lindsey, 158 F.3d at 1276.] In any event, public officials concerned with obtaining confidential legal advice about their own conduct may always consult with private counsel. [Id.]

This reasoning is undoubtedly sound: there is no principled reason for applying the Garner exception — which has long been applied in New York to trustees and other fiduciaries through Hoopes v. Carotta, 74 N.Y.2d 716, 544 N.Y.S.2d 808 (1989), and its progeny — only to traditional, private fiduciaries and their beneficiaries, and not to public officials whose obligations to the public are at least as important. And it should certainly be applied to the communications between most Executive Branch officials and Executive Branch lawyers. The line should be drawn, however, at attorney-client communications involving the Chief Executive him- or herself. The holdings of Ryan, Lindsey, and Clinton not only fail to take into account the unique nature of the Presidency (or indeed, a governorship), but they belittle it.

In Lindsey and Clinton, the White House argued — we believe correctly — that the personal interests of the President cannot easily be separated from those of the Presidency as an institution. A criminal investigation of the President, his wife and/or his subordinates implicates not just the President’s personal legal concerns, but also political concerns — both for him personally, for the White House, and for the nation. This is an area where the President uniquely needs the ability to consult in confidence with White House counsel, who is in the best position to weigh such legal and political considerations. The Clinton court airily swept this argument aside:

“[W]e believe there is a difference between ‘official misconduct’ — whatever that might be — and ‘misconduct of officials.’ The OIC is actually investigating the actions of individuals, some of whom hold positions in the White House. The OIC’s investigation can have no legal, factual or even strategic effect on the White House as an institution. Certainly action by the OIC may occupy the time of the White House staff members, may vacate positions in the White House if any of its personnel are indicted, and may harm the President and Mrs. Clinton politically. But even if we assume that it is proper for the White House to press political concerns upon us, we do not believe that any of these incidental effects on the White House are sufficient to place that governmental institution in the same canoe as Mrs. Clinton, whose personal liberty is at stake.” [112 F.3d at 922-23 (emphasis added).]

See also Lindsey, 158 F.3d at 1282-83, refusing to apply common interest privilege to cover communications between White House counsel and President’s personal counsel. But see Id., 158 F.3d at 1286, “Since for any President the line between official and personal can be both elusive and difficult to discern, I think Presidents need their official attorney-client privilege to permit frank discussion not only of innocuous, routine issues, but also sensitive, embarrassing or even potentially criminal topics” (Tatel, J. dissenting).

In sum, the holdings of Ryan, Lindsey, and Clinton, as applied to most government agency officials, fit easily into well-established limitations on the attorney-client privilege. But as applied to the Chief Executive, these rulings fail to take into account the practical realities of that office and the importance of the principles underlying the privilege to the individual office-holder.

Ronald C. Minkoff is a shareholder/director of Frankfurt Kurnit Klein & Selz, P.C. He is an Adjunct Professor of Professional Responsibility at Brooklyn Law School, and the President of the Association of Professional Responsibility Lawyers.

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Ronald C Minkoff