Thursday, February 24, 2005

The Attorney Client Privilege Extends to Communications Between Government Officials and Their Government Lawyers

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the "public interest" served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the "meaning of related state ethics laws." The Office of the Governor (both before and after Governor Rowland's resignation) asserted the privilege, but the district court held that the privilege did not apply "because the interests served by the grand jury's fact-finding process clearly outweigh the interest served by the privilege," and that the "governmental" attorney-client privilege differed from the private privilege because the government lawyer's duty did not lie solely with the agency, but also with the public.

The Circuit rejected this reasoning in all respects. It showed that there had long been assumed to be a governmental privilege of some scope, and it squarely rejected the argument that in a criminal case the "public interest" in having all relevant evidence of crime outweighed that privilege. One could as easily conclude, the Court stated, "that the protections afforded by the privilege ultimately promote the public interest, even when they might impede the search for truth in a particular criminal investigation." Indeed, the Court thought the rationale for the privilege had "special force" in the governmental situation because of the "crucial" need for officials "to receive fully informed legal advice."

The Circuit further rejected arguments that the privilege did not function in the same manner in the public as in the private context or that there should be some kind of balancing test for determining the applicability of the privilege on a case-by-case basis.

The Court noted that its decision was in conflict with a decision of the Seventh Circuit and in "sharp tension" with decisions of the Eighth and District of Columbia Circuits. It is unlikely that this case will lead to the Supreme Court, however, since, following issuance of the Court's order of reversal in August, 2004, Governor Rowland pled guilty, rendering further substantive proceedings in the case moot, in all likelihood. The Court noted that issuing an opinion justifying its August order was not prevented by the mootness doctrine, but it seems likely that a further government appeal would be.

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