Legal Affairs

Jeff Feuquay, Associate Editor

Whither Goest Attorney Client Privilege

Just as the Gulf War allowed us to operationally test and fine tune new weapons systems and the Viet Nam conflict offered significant advances in emergency medicine, so the Clinton Presidency has provided significant insights into the care and maintenance of our "nation of laws." Those laws are, at least by most reports, the bedrock, the foundation of our government and our society.

As I understand it, the framers of the Constitution likely envisioned presidential impeachment occurring with considerably greater frequency than twice in our history -- their concept of checks and balances resulted in a mere majority vote being sufficient to impeach. But, their concept of separation of powers resulted in a two-thirds majority being required for ouster. What genius. Despite the incredible divisiveness of our recent impeachment process, first and foremost it demonstrated that the American system of laws allows a bloodless challenge of our leader. Not once did the Commander in Chief threaten military action against the House Managers, or even against the folks that sent the Managers. Granted the process did not result in the type of internal cleansing which even the IOOC was able to accomplish, but certain wrongdoers were convicted and it confirmed that our system is working.

One of the interesting legacies resulted from Mr. Bruce Lindsey's refusal to answer federal grand jury questions about possible criminal conduct by governmental officials and others. You may recall the Lindsey was Deputy White House Counsel and also Assistant to the President. In response to the federal grand jury questions, Lindsey claimed executive privilege and attorney client privilege. (It was not clear if he was claiming that both privileges applied or asserting an alternative less the first not hold.) To understand the outcome, one must understand that the holder of the privilege is the client, not the attorney. The attorney generally asserts it for the client but only the client can waive the privilege, and thereby allow the attorney to talk about the protected information.

Whether or not there was attorney client privilege under specific circumstances was appealed to the D.C. Circuit Court of Appeals after the U.S. Supreme Court sent it there for prompt resolution. While the appeals court's holding was in the midst of obviously unique circumstances, it cited numerous prior decisions and may instruct those of use in government as to how confidential we can reasonably expect our communications with our attorneys to be and when the privilege disappears. The Lindsey Court found a fundamental difference in the responsibilities of a government lawyer and a private lawyer.

When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence. With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. The constitutional responsibility of the President, and all members of the Executive Branch, is to "take Care that the Laws be faithfully executed."

In re Bruce Lindsey, No. 98-3060 (D.C. Cir. 1998)

While the Lindsey court found strong support for its position in the Supreme Court's handling of similar issues related to former President Nixon (U.S. v. Nixon, 418 U.S. 683 (1974)), probably the most telling reference was to James Madison.

[A] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.

In re Lindsey, citing Letter from James Madison to W.T. Barry (Aug. 4, 1822) in 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910).

When can you expect your conversation with your government attorney to remain confidential? As a rule, the attorney(s) representing those of you in state and local government have sworn two oaths of office just as have their federal counterparts. The first oath was that of all attorneys upon entry to the bar. Because of that oath and attorneys' insistence upon the rule of law, Dick recognized that they would get in the way of a plot to overthrow the government. Thus his suggestion: "That first thing we do, let's kill all the lawyers." Shakespeare, Henry VI, Part 2. Second, they, like virtually all public sector employees, swore another, specific oath upon entry to public service; their responsibilities and loyalties are and must be different from their private-sector counterparts.

Just chatting with someone who is an attorney does not invoke the privilege. The privilege is invoked when you conversation "concerns the seeking of legal advice." But, and a very important exception, appears to be that a government attorney has a responsibility to report possible criminal conduct in the executive branch. This is certainly true in the federal sector; it is highly likely to be equally true at the state and local level. So, the attorney general, county attorney or city attorney should not be used as your confessor -- he or she may be required by law and by ethics to rat on you.

Understand, this discussion is about privilege. It does not address conflict of interest. Some of you may have found yourself sued by a constituent in your official and your individual capacity. Fairly often, the organizations' attorney will represent both you and the organization. That's fine and can save you a fortune in your own attorney fees if, and only if, your interest and the organization's interests are aligned. It is a recipe for disaster if the organization can save itself by "rolling over" on you, or vice versa. If you find your goals or interests and the organization's diverging after one attorney has represented both of you, explore the possibility of having that attorney cease representing either of you. Pay careful attention to what you may have told the attorney that may come back to haunt you. Again, this consideration is on top of your not retaining your attorney client privilege relative to possible crimes. Ah well, life is complicated.

See you in court.

Jeff may be reached at P.O. Box 706, Perry, OK 73077-0706; Phone: (580) 336-4908; Fax (580) 336-5366; Net: jeff@feuquay.com. If there is a topic that you would like to see addressed in this column please let him know.