Principles, politics and privilege: how the crime-fraud exception can preserve the strength of the attorney-client privilege for government lawyers and their clients.

Author:Glenn, Michael W.

Introduction I. Attorney-Client Privilege Background and Policy Justifications A. Historical Background and Constitutional Justifications B. Attorney-Client Privilege Promotes Public Policy Through Disclosure and Effective Legal Advice C. As an Entity Privilege D. Limitations on the Attorney Client Privilege E. Crime-Fraud Exception II. Dispute over Whether the Government Attorney-Client Privilege Should Exist in a Federal Grand Jury Proceeding A. Declining to Extend the Government Attorney-Client Privilege in the Federal Grand Jury Context 1. In re Grand Jury Subpoena Duces Tecum 2. In re Lindsey 3. In re A Witness Before the Special Grand Jury 4. Categorical Arguments Against Extending the Government Attorney-Client Privilege in the Federal Grand Jury Context a. Corporate Privilege Rationale Does Not Extend to the Government Context b. Open and Honest Government Is the Paramount Public Interest c. Client Candor Is Not Increased Through Preservation of the Privilege d. Other Privileges Can Provide Sufficient Protection to Confidential Materials B. Extending the Government Attorney-Client Privilege in the Federal Grand Jury Context 1. In re Grand Jury 2. In re County of Erie 3. Categorical Arguments for Government Attorney-Client Privilege in Federal Grand Jury Context a. Corporate Analogy Is Relevant to a Consideration of the Government Attorney-Client Privilege b. Denying Elected Officials Open Discussions About Pending Litigation with Counsel Would Be Detrimental to Society as a Whole c. Full and Frank Disclosure Is Just as Important in the Public Context as It Is in the Private Context d. Other Privileges Do Not Deal with the Unique Requirements of Attorney Confidentiality III. Resolving the Unclear Standard for the Government Attorney-Client Privilege in the Criminal Context A. The Client of a Government Attorney Is the Organization They Serve B. The Underlying Principles Support the Privilege in the Federal Grand Jury Context C. The Crime-Fraud Exception Is Sufficient to Protect the Public Interest Conclusion [W]e can attest to the vital importance of candor and confidentiality in the Solicitor General's decisionmaking process.... Our decisionmaking process require[s] the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality. (1)


Government lawyers are regulated by the ethical rules of the state in which they are members of the bar. (2) In most states, professional responsibility rules of confidentiality do "not distinguish between government and private sector lawyers." (3) As a result, government lawyers are under an ethical obligation to comply with their clients' instructions. (4) The scope of protections provided by asserting the attorney-client privilege in the face of a grand jury subpoena, however, is not clear. (5) Given that over 40,000 lawyers serve our federal government in some capacity, a clear ethical obligation should be provided. (6) An expanding government in the current regulatory regime will require more lawyers to provide counsel to government officials so the government can "function efficiently and effectively." (7) Leaving the attorney-client privilege without clear boundaries for these lawyers is a cause for great professional concern.

Government lawyers advise on policy issues, issue legal advice on various matters, and serve as counselors at the highest levels of government. (8) Shouldn't the privilege apply to them in the same manner as those lawyers serving in the private sector? What if the government official seeking legal advice may face incarceration due to illegal policies or public corruption? Some would point to the recent "torture memos" as a means of cautioning against a desire for equal ethical obligations. (9) Others suggest that whistleblower statutes and other mandated reporting requirements reduce the efficacy of this argument. (10) However, a different set of rules for government lawyers can be confusing when implemented in practice. (11) Further, systematically reducing the privilege could have great consequences for the profession of lawyering. As Michael Greco, former President of the American Bar Association (ABA) stated,

In the end, erosion of the attorney-client privilege will marginalize the lawyer and the lawyer's ability to defend liberty and pursue justice. Erosion of the lawyer-client relationship will lead to the diminishment of the lawyer's role in society because clients will no longer entrust confidences with and seek counsel from their lawyers. And such diminishment will lead to a less effective, less respected, and greatly reduced lawyer's role in society not only in particular client matters, but more broadly. (12) Although the notion of an attorney-client privilege for government lawyers is relatively new, (13) the underlying principles remain the same. (14) Dean Wigmore provides one of the fundamental descriptions of the privilege in his oft-cited treatise:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. (15) Government lawyers inherently share the "same broad confidentiality obligation" as private sector attorneys. (16) However, this obligation is "tempered by the fact that [the lawyer] has a deeper obligation to the public." (17) Completely abrogating the privilege would have the effect of placing the government lawyer at a disadvantage in both civil and criminal litigation. (18) Courts have not been clear as to how far the privilege should extend given the unique obligations of government lawyers (19) Before 1996, there was no legal precedent available on whether the government attorney-client privilege applied in the criminal context. (20) This is an important consideration in the assertion of the privilege for government clients because "they need the candid legal advice that only the attorney-client privilege can guarantee." (21)

This idea then ignites the debate as to who exactly is the government attorney's client. (22) Among the possibilities listed by one commentator are the public, the government as a whole, branches of government, agencies, and agency heads. (23) Others have suggested the President as a potential client due to his role as the head of the Executive branch. (24) The ABA has clarified that the duty of an organizational lawyer, and therefore representation of a client, extends to governmental organizations as well. (25) Identifying the client is critical, as it serves as the "triggering event" for a wide gamut of professional responsibilities. (26)

A former Attorney General argued for recognizing a higher calling to the public in the performance of a government lawyer's duty. (27) This idea that a government lawyer possesses "a higher duty to the public is not limited to the criminal context." (28) One rationale for this duty could be that the privilege serves to "encourag[e] internal investigations ... and ensur[es] future compliance with the law." (29) Others acknowledge the historical justifications for serving the public interest offered by courts and legislatures. (30) Further, it is argued that the "government lawyer represents a public-abiding client whose genuine interests" cannot be protected "by the same level of secrecy" as a private client. (31) For state and municipal government lawyers, this also causes unique concerns when determining whose interests to serve during representation. (32)

Another unique circumstance facing government lawyers is the divide over whether the attorney-client privilege can be equally exerted in civil and criminal cases. (33) Most courts have assumed the privilege exists in areas involving civil litigation. (34) The Supreme Court has insisted that there is "there is no case authority" justifying a different application "in criminal and civil cases." (35) However, there exists a circuit split regarding the assertion of the government attorney-client privilege before a federal grand jury. (36)

The Eighth Circuit in In re Grand Jury Subpoena Duces Tecum recognized the existence of a government attorney-client privilege but did not find that it extended to the federal grand jury context. (37) The court's rationale focused on a weighing of interests and an assertion that the public interest is best served by not recognizing the privilege in "criminal proceedings inquiring into the actions of public officials." (38) The D.C. Circuit in In re Lindsey also ruled against the privilege utilizing a balancing test. (39) There, the court found that the necessity of open government and the sake of the public interest outweighed the potential harms of "chill[ing] some communications between government officials and government lawyers." (40) The Seventh Circuit, in a case involving state officials, also ruled that the privilege does not extend because government lawyers have a "responsibility to act in the public interest." (41) On the other hand, the Second Circuit has held that the government attorney-client privilege does exist and should be extended in the federal grand jury context. (42)

Part I of this Note explores the history and fundamental justifications of the attorney-client privilege. Further, it looks at the evolution of the attorney-client privilege as an organizational privilege. Finally, this Part focuses on the limitations of the privilege and its impact on' public policy...

To continue reading