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Privilege In Jeopardy

Governors Journal

May 1, 2011

Authors: Ross H. Garber

A recent court decision adds further doubt about the strength of the attorney-client privilege between public officials and their government lawyers. Until just a few years ago, there was little reason to question the extent of the attorney-client privilege between a governor and his or her government lawyer; public officials across the country were free to communicate candidly and openly with their government attorneys, seeking and relying on their advice and counsel on a variety of sensitive issues central to the efficient operation of their public office. That landscape has shifted dramatically over the course of the years as more and more courts have found that the privilege does not apply in the context of a federal grand jury investigation.

In the recent case, United States v. Bravo-Fernandez, decided on Dec. 23, 2010, the District of Puerto Rico joined the majority of courts in ruling that, in the context of a federal criminal investigation, “no attorney-client privilege” exists between a government official and his government lawyer.

Doubt as to the legitimacy of the government lawyer’s privilege with his client was previously raised when Courts of Appeals for the D.C. Circuit and the Eighth Circuit held that lawyers from President Clinton’s(D) White House Counsel’s office were required to provide otherwise privileged information to Whitewater Independent Counsel Kenneth Starr. More recently, the Seventh Circuit held that the privilege did not apply in criminal cases and decided that the counsel to Governor George Ryan(R) of Illinois could be compelled to testify about conversations he had with Ryan when Ryan was the Secretary of State. In each of these cases, the court reasoned that because a government lawyer is a public official, the interests of the grand jury supersede the privilege.

Only one court has reached a contrary conclusion. In United States v. John Doe, the Second Circuit held that a former counsel to the governor of Connecticut could not be compelled to give grand jury testimony about confidential discussions she had with the governor and other members of the governor’s staff. In so holding, the Second Circuit became the first and only federal appellate court to recognize an attorney-client privilege for public officials similar to the one enjoyed between private individuals or companies and their counsel.

Until the United States Supreme Court weighs in, the extent of the privilege between government officials and their government lawyers is uncertain. In the meantime, governors, their staffs and their counsel must be mindful that they might be subpoenaed to testify about the substance of all manner of conversations. For particularly sensitive issues, public officials should retain private counsel and may wish to consider engaging an outside law firm to represent their office.

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