24.5 Government Clients

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

24.5 GOVERNMENT CLIENTS

24.501 Introduction. An individual government employee's power to waive the government's privilege follows the privilege's applicability in the government context, which is discussed in Chapter 4 of this book.

One might think that the power to waive the government's privilege would involve dramatically different rules from those applicable to other institutions, such as corporations. After all, many standard legal principles do not apply in the same fashion in the government context. For instance, courts generally hold that normal estoppel principles do not apply in the government context. However, waiver principles seem to apply in the government setting in about the same way they do elsewhere.

24.502 Level of Government Employee. As with other institutions, the power to waive the government's privilege generally rests with senior decision-makers. The higher the government employee's position in the hierarchy, the more likely that employee is to have the power to waive the government's privilege.

For instance, the Northern District of New York issued an opinion in 2009 concluding that a state college's chief of police held a high enough position to waive the college's privilege.

If Sabo were among this group of core management in a corporate structure, she would possess the authority to waive the corporation's attorney-client privilege. Given Sabo's position as Chief of Police at SUNY Plattsburgh, she could constitute an officer with the requisite decision-making authority. Therefore, her waiver would waive the institution's privilege. ⁸⁰

Thus, courts have found that the following government officials could waive the government's privilege.

• Chief of a local government's police department; ⁸¹

• Executive director of a governmental entity; ⁸²

• Town council. ⁸³

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In contrast, courts have found that the following individual was not sufficiently empowered within the corporate bureaucracy to waive the government's privilege.

• City police department director. ⁸⁴

As in other institutional settings, a former government employee generally cannot waive the government's privilege. ⁸⁵ In another similarity to other institutional settings, one court held that the government's privilege could be waived by a lawyer acting with authority. ⁸⁶

24.503 Multimember Government Entities. Although a similar issue arises in other institutional contexts, there seems to be a greater frequency in the government...