The governmental attorney-client privilege: whether the right to evidence in a state grand jury investigation pierces the privilege in New York State.

• Author: Newman, Stacy Lynn

1. INTRODUCTION

   Whether a New York State government official represented by a government attorney can invoke the evidentiary attorney-client privilege when faced with a state grand jury subpoena has not been explicitly addressed by either New York State courts or the New York State Legislature. If a New York State grand jury were to subpoena the Governor's chief legal counsel to testify regarding private communications with the Governor, then it is currently uncertain whether the Governor's chief legal counsel would be able to avoid testifying based on the evidentiary attorney-client privilege. If New York State follows the rulings of the United States Courts of Appeals for the Eighth, District of Columbia, and Seventh Circuits, (1) then the Governor's chief legal counsel would be unable to successfully invoke the evidentiary attorney-client privilege and would be compelled to testify. However, if New York State follows the ruling of the Court of Appeals for the Second Circuit, (2) then the Governor's chief legal counsel would be permitted to invoke the evidentiary privilege. The recent circuit split among the United States Courts of Appeals (3) magnifies the uncertainty regarding whether the governmental attorney-client privilege (4) exists in the federal grand jury context. It should be noted, however, that governmental entities are generally afforded the protections of the attorney-client privilege outside of the grand jury context. (5)

   The existence of the evidentiary attorney-client privilege for federal government entities represented by federal government attorneys has been debated by academics in both the civil (6) and criminal contexts. (7) This Comment, however, focuses on whether New York State supports the extension of the evidentiary attorney-client privilege to state government officials represented by government attorneys who are under investigation by a New York State grand jury. (8) Part II of this Comment explains attorney-client confidentiality as it currently exists in New York State by describing the two bodies of law governing confidences between attorneys and clients: the ethical obligation set forth by the legal profession (9) and the evidentiary attorney-client privilege set forth by the judicial and legislative branches of government. (10) Even though this Comment does not examine an attorney's ethical obligations in state criminal proceedings, a brief discussion of the duty of confidentiality is necessary in ascertaining the importance that the legal profession ascribes to client confidences, which are at the heart of the evidentiary attorney-client privilege. Part III analyzes the United States Courts of Appeals cases that created the current split among the circuits. In determining which circuit New York State is inclined to follow, Part IV explores the competing interests between the need to protect client confidences and the public's right to know every man's evidence. Part V concludes that New York State government officials represented by government attorneys should be afforded the protections of the evidentiary attorney-client privilege in state grand jury proceedings based on New York State's high regard for attorney-client confidentiality when faced with the public's right to know.

2. THE ATTORNEY-CLIENT PRIVILEGE IN NEW YORK STATE: BODIES OF LAW GOVERNING CONFIDENTIALITY BETWEEN ATTORNEYS AND CLIENTS (11)

   Confidences between an attorney and his client are governed in New York State by both the ethical obligation (12) and the evidentiary attorney-client privilege. (13) The ethical obligation of an attorney regulates his moral responsibilities and is set forth by the legal profession. (14) In New York State, the New York Code of Professional Responsibility enacted by the New York State Bar Association governs the moral and ethical responsibilities of attorneys admitted to practice law. (15) In contrast, the evidentiary attorney-client privilege, enacted by both the legislature and judiciary, governs the admissibility of attorney-client confidences in adjudicative proceedings and is set forth by both common law principles and statutory provisions. (16) In New York State, the evidentiary attorney-client privilege is codified in the New York Civil Practice Law and Rules. (17) In comparing the ethical obligation of an attorney to preserve client confidences to the evidentiary attorney-client privilege, the ethical obligation is broader than the evidentiary privilege. (18) The ethical obligation applies both to matters communicated in confidence and to any information relating to the legal representation of the client. (19) Thus, the ethical obligation exists regardless of the nature or source of the information. (20) Additionally, the ethical obligation exists even if the content of the communication is known by third persons. (21) In contrast, the evidentiary attorney-client privilege applies solely to matters communicated by a client to his attorney in confidence and is waived when the communication is disclosed to third persons. (22) Also, the evidentiary attorney-client privilege only "appl[ies] in judicial and other proceedings in which a lawyer may be called as a witness or otherwise [be] required to produce evidence concerning a client" whereas the ethical obligation "applies in situations other than those where evidence is sought from the lawyer through compulsion of law." (23)

   Legal professionals practicing law in New York State must comply with both the ethical obligation and the evidentiary attorney-client privilege. However, the consequences resulting from a violation of the duty of confidentiality differ sharply from the repercussions facing attorneys who violate the evidentiary attorney-client privilege. The New York State Ethics Commission has the authority to investigate alleged ethical misconduct. (24) If the Commission finds that a violation has occurred, it may impose civil penalties on the attorney and, in certain instances, refer the situation to the state prosecutor for punishment as a class A misdemeanor. (25) In the most extreme cases where the ethical violation results in serious misconduct, the attorney may lose his license to practice law in New York State. (26) In contrast, if an attorney testifies and discloses confidential information at trial in violation of the evidentiary attorney-client privilege, the trial judge may suppress the evidence and, in some instances, the attorney may be subject to contract or tort liability. (27)

   1. The Ethical Obligation of an Attorney as Set Forth by the Legal Profession (28)

      The legal profession sets high ethical standards for its practitioners. (29) An attorney's respect for and faith in his fellow members of the legal profession and of the society in which he serves provides the attorney with an incentive to strive for the highest possible degree of ethical conduct. (30) Since 1969, the American Bar Association (ABA) has adopted three models of ethics rules governing the legal profession--the Model Code of Professional Responsibility and two versions of the Model Rules of Professional Conduct. (31) The Model Rules serve as ethical obligations for the majority of states. (32) For example, the ABA and most state bar associations state that an attorney should assist in maintaining the integrity and competence of the legal profession, (33) represent a client competently, (34) and represent a client zealously within the bounds of the law. (35) One of the most important ethical obligations of an attorney regarding the attorney-client relationship is the duty of confidentiality. (36) Rule 1.6 of the Model Rules states that "[a] lawyer shall not reveal information relating to the representation of a client unless the client gives [his] informed consent." (37) Similarly, Canon 4 of the Model Code states that "[a] [l]awyer [s]hould [p]reserve the [c]onfidences and [s]ecrets of a [c]lient." (38) Under both models of ethics rules, an attorney may, however, within his discretion, reveal confidential information under certain circumstances. (39)

      Even though New York State has not adopted the Model Rules in its entirety, (40) the New York State Bar Association has adopted similar guidelines, including the preservation of client confidences. (41) The New York Code of Professional Responsibility (42) contains Canons, Ethical Considerations, and Disciplinary Rules. (43) "Canons are statements of axiomatic norms, [which] express[] in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession." (44) Canons "embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived." (45) Ethical Considerations are advisory and provide aspirational principles to guide an attorney's future conduct. (46) In contrast, Disciplinary Rules are mandatory. (47) Disciplinary Rules prescribe the minimum level of professional conduct with which an attorney must comply. (48) If an attorney falls below this minimum standard, the attorney is subject to disciplinary action by the legal profession for non-compliance. (49) The Disciplinary Rules have been adopted by the Appellate Divisions of the Supreme Court of New York as joint rules and are promulgated in title 22, part 1200 of the Official Compilation of Codes, Rules & Regulations of the State of New York. (50)

      Unlike the single standard articulated in Rule 1.6 of the Model Rules, the New York Code of Professional Responsibility adopted a two-pronged duty of confidentiality identical to Canon Four of the Model Code. (51) In contrast to the Model Rules, which protects all information about a client "relating to the representation," Canon Four of the New York Code of Professional Responsibility requires an attorney to preserve both the confidences and secrets of a client. (52) Generally, the duty of confidentiality in New York State covers both...