OLR RESEARCH REPORT
November 30, 1998
ATTORNEY-CLIENT PRIVILEGE FOR GOVERNMENT LAWYERS
By: Christoper Reinhart, Research Attorney
You asked about any Connecticut rulings or legislation regarding attorney-client privilege for government lawyers and whether there are any rules or problems similar to those raised by the Starr investigation.
In Connecticut, the attorney-client privilege is a common law evidentiary privilege that protects a client's confidential communications to an attorney when seeking legal advice. It likely exists for government lawyers in Connecticut. But because of limited case law and no statutory provision, we are unable to give you a definitive answer.
A recent Connecticut Supreme Court decision held that the privilege existed between a municipal entity and a lawyer hired to conduct an investigation and provide legal advice (Shew v. Freedom of Information Commission, 245 Conn. 149 (1998)). Additionally, a number of authorities indicate that the privilege exists in the government context, including the Proposed Final Draft #1 of the Restatement of the Law Governing Lawyers, and Professor Rice's treatise Attorney-Client Privilege in the United States.
The Starr investigation has resulted in two federal court of appeals decisions that the attorney-client privilege does not protect communications to a government lawyer about possible criminal conduct from disclosure to a grand jury. These decisions have no impact on Connecticut law. They address a complex area of the law because they involve one branch of the government demanding information from another branch.
THE ATTORNEY-CLIENT PRIVILEGE IN CONNECTICUT
In Connecticut, the attorney-client privilege is a common law privilege that protects confidential communications by a client to an attorney when seeking legal advice. Any type of legal advice can be involved but the information communicated must be necessary to obtain that legal advice. The client or his representative can waive the protection. But the privilege continues after the death of the client (Tait and LaPlante, Connecticut Evidence, § 12.5).
It appears that the attorney-client privilege applies to government lawyers. A recent Connecticut Supreme Court decision ruled that the attorney-client privilege existed between a lawyer and a municipal entity that hired the lawyer to conduct an investigation and provide legal advice (Shew v. Freedom of Information Commission, 245 Conn. 149 (1998)). The court has also recognized that the privilege applies to public defenders and court-appointed attorneys (Ullmann v. State, 230 Conn. 698 (1994)). Connecticut's Freedom of Information statutes also recognize the attorney-client privilege as an exception to public disclosure (CGS § 1-19(b)(10)). Additionally, a number of authorities indicate that the privilege exists in the government context, including Professor Rice's Attorney-Client Privilege in the United States and the Restatement of the Law Governing Lawyers. The Rules of Professional Conduct also discuss the role of the lawyer when the government is the client.
Shew v. Freedom of Information Commission
In this case, the town of Rocky Hill retained an attorney to investigate the town's police chief. The town manager hired the attorney to avoid legal complications in the possible removal of the chief. The attorney investigated the chief's conduct and gave legal advice based on her findings. An individual requested disclosure of the attorney's interview reports. The Freedom of Information Commission ordered the town manager to disclose the reports because they were public documents that did not meet the exemptions for preliminary drafts or notes or the attorney-client privilege (CGS § 1-19(b)).
The court noted that the purpose of the privilege is to protect the giving of legal advice to those who can act on it and the giving of information to a lawyer to allow him to give sound and informed advice. With an individual, the provider of the information and the person acting on the attorney's advice is usually the same. With a corporation or municipality, employees who possess information will communicate with the lawyer.
The court had not previously considered the attorney-client privilege with a corporate or municipal client but found the two settings to be similar. The court found the U.S. Supreme Court's decision on corporate attorneys in Upjohn Co. v. United States (449 U.S. 383 (1981)) persuasive and adopted a similar test.
In Upjohn, the U.S. Supreme Court ruled that the attorney-client privilege protected communications made in confidence by an employee to the corporation's lawyers when the corporation was seeking legal advice. The Court rejected the “control group test” used by some courts to limit the privilege's protection to senior management, those who have the ability to guide the corporation and possess an identity analogous to the corporation. The Court said that the “control group test” overlooks the fact that the privilege exists to protect the giving of information as well as the giving of professional advice. In the corporate context, employees beyond the control group often possess the information that a corporation's lawyers need. The “control group test” frustrates this purpose of the privilege and might also limit the efforts of corporate counsel to ensure that their client is complying with the law.
Similarly, the Connecticut Supreme Court in Shew interpreted the privilege to promote communication of relevant information by employees to attorneys seeking to render legal advice to the municipality (Shew v. Freedom of Information Commission, 44 Conn. App. 611, 620 (1997)). The court ruled that communications are protected when the:
1. attorney acts in a professional capacity for the agency,
2. communications are made by current employees or officials of the agency,
3. communications relate to the legal advice sought by the agency from the attorney, and
4. communications are made in confidence (245 Conn. at 159).
Rules of Professional Conduct
Connecticut Rule of Professional Conduct 1.13 for organizational clients also applies to government organizations. The rule states that the government as a whole is considered the client, although it may be difficult to determine who the individual client is at times. The rule recognizes that in some circumstances the client may be a specific agency. The rule sets guidelines for lawyers to follow when an organization's members may be acting against the interests of the organization or against the law. But the comment to the rule states that the nature of government as public business may require a different balance between maintaining confidentiality and assuring that wrongful official acts are prevented or rectified. The rule does not explain how it might apply differently.
The D.C. Bar Association Rule of Professional Responsibility 1.6 takes a different view of the government as a client. The employing agency is designated the client under this rule. The comment explains that when a government lawyer is assigned to provide an individual with counsel, an obligation of confidentiality may run directly to that individual. But the agency's regulations may allow disclosures about the individual representation to supervisors or others within the employing governmental agency. This situation can include a public defender or a government lawyer representing a defendant sued for damages arising out of the performance of his government duties.
TREATISES ON ATTORNEY-CLIENT PRIVILEGE
Paul Rice on Attorney Client Privilege in the U.S.
According to Professor Rice, most courts have assumed that government entities can assert the attorney-client privilege. He cites a recent Sixth Circuit Court of Appeals case which stated that the court has assumed the existence of the privilege without ever explicitly deciding it (Reed v. Baxter, 1998 U.S. App. LEXIS 249 (6th Cir. Jan. 9, 1998)). He adds that the scope of the privilege is generally thought to be the same in the private and governmental context.
He views the government privilege as the same as the corporate privilege. It applies to communications with all agents or employees of the organization who are authorized to act or speak for the organization on the subject matter of the communication. Government, like a corporation, is a legal entity with no existence outside the law and government employees and officials, like those in a corporation, are responsible for the functioning of the entity and seek legal advice when necessary. He views the different agencies of government as different clients. Communications between government agencies should be privileged to the extent there is a “substantial identity of legal interests,” similar to a parent and subsidiary corporation. Sometimes agencies will have conflicting interests and only when there is a substantial identity of legal interests should the privilege apply (Rice, § 4:28).
According to Rice, many states have limited government attorney-client privilege to discussions in anticipation of litigation but no state or federal court has ever imposed this limitation without legislation (§ 4:28, Supplement p. 58)
Restatement of the Law Governing Lawyers
The Restatement of the Law Governing Lawyers, Proposed Final Draft No. 1 (1996) states that the privilege applies to government agencies as it does to other organizations and to individual government officers and agents who are individually represented as it would for individuals. Communications between a lawyer representing one agency and an officer or employee of another agency are not privileged unless the lawyer represents both agencies. The comments emphasize the importance of the privilege to government entities and officers in obtaining legal advice founded on complete and accurate facts. But the section states that more particularized rules may be necessary when one agency uses the privilege to resist a demand for information from another agency (§ 124).
THE STARR INVESTIGATION
The Starr investigation has resulted in three important court cases on the attorney client privilege. The U.S. Supreme Court reaffirmed the importance of the attorney-client privilege for private attorneys in Swidler and Berlin et al v. United States (118 S.Ct. 2081 (1998)). In this case, the Office of Independent Counsel (OIC) sought to compel disclosure to the grand jury of communications between deputy White House counsel Vince Foster and a private attorney. The Court ruled that the attorney- client privilege continues to protect confidential communications after the death of the client. A prosecutor cannot compel the attorney to disclose confidential communications, even if such communications are relevant to a criminal proceeding. The Court added that the certainty of the protection of the privilege is an important consideration and the Court rejected a balancing test.
Another case involved documents describing conversations between White House Counsel and the First Lady (In re: Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied 117 S.Ct. 2482). The Court of Appeals for the Eighth Circuit ruled that the attorney-client privilege cannot be asserted to block access to communications sought by a federal grand jury. According to the court, an overriding public interest in prosecuting criminal conduct and the strong interest in exposing wrongdoing by public officials required disclosure.
A similar case involved Bruce Lindsey, a deputy White House counsel and an assistant to the President (In re Bruce Lindsey, 148 F.3d 1100 (D.C. Cir. 1998)). The OIC sought Lindsey's testimony about communications with the president. He raised several privilege claims, including attorney client privilege. The Court of Appeals for the District of Columbia Circuit ruled that the attorney-client privilege did not protect communications to a government attorney regarding possible criminal conduct from disclosure to a grand jury. The U.S. Supreme Court recently declined to hear the case.
In Re Bruce Lindsey
In reaching its holding on government attorney-client privilege, the majority reasoned as follows.
1. “Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts.” The court then cites to (a) the federal Freedom of Information Act exemption for material covered by the attorney-client privilege, (b) the practice of executive branch attorneys, (c) the proposed Federal Rules of Evidence which contained a section on government attorney-client privilege, and (d) the proposed draft for the Restatement of the Law Governing Lawyers that extends the privilege to government attorneys.
2. Lindsey's client, to the extent he provided legal services, was the Office of the President.
3. Competing values arise when the Office of the President resists demands for information from a federal grand jury and the nation's chief law enforcement officer. A grand jury is a constitutional body established by the Bill of Rights that belongs to no branch of government and the independent counsel is acting by statute in the place of the attorney general, the nation's chief law enforcement officer.
4. There is no case law on this issue but the Restatement points out that more particularized rules may be necessary in this situation based on the government structure, tradition, and regulation.
5. Government attorneys are in a different position than private attorneys. It is the constitutional duty of all members of the executive branch to faithfully execute the laws of the United States. The loyalties of government lawyers cannot lie solely with a client agency because of the public trust placed in them. Privileges work against the public interest in uncovering illegality among its officials.
6. It is the practice of executive branch attorneys to follow 28 U.S.C. § 535(b) to report criminal wrongdoing by other employees to the attorney general. The statute does not clearly implicate the Office of the President but it shows a strong congressional policy and the general practice has been to cooperate with the investigations of independent counsels.
7. The federal court has authority, under Federal Rule of Evidence 501, to interpret privileges “in light of reason and experience.” Congress left these matters to the courts as a matter of the common law.
8. “When an executive branch 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.” The attorney-client privilege may not be asserted to avoid responding to a grand jury about information of possible criminal violations.
THE PRIVILEGE IN CONNECTICUT AND ISSUES RAISED BY STARR
The test adopted by the Connecticut Supreme Court in Shew likely applies to other contexts of government lawyers. The attorney-client privilege is interpreted rather broadly in Shew and Upjohn, the U.S. Supreme Court case that the court relied on. But the Starr cases represent a difficult area of competing interests with one branch of government attempting to get information from another branch of government. The use of the privilege to promote good government through full, frank discussions and consideration conflicts with the interest in keeping government honest and preventing government officials from hiding information.
Connecticut Rule of Professional Conduct 1.6 places a general ethical obligation on an attorney to preserve the confidentiality of client information but provides exceptions. Under the rule, a lawyer must reveal information to prevent a client from committing a crime that he believes is likely to result in death or substantial bodily harm. A lawyer may reveal information to prevent a client from committing a crime that he believes is likely to result in substantial injury to the financial investment or property of another. A lawyer may also reveal information to rectify the consequences of a client's crime or fraud in which the client used the lawyer's services to perpetrate the act. In these circumstances, an attorney owes a higher duty to society and the intended victim.
The Connecticut Supreme Court has recognized the need for a balancing test when the privilege conflicts with the right to confrontation. This case involved an attorney who represented two co-defendants but did not represent them at trial. The court denied the privilege because the benefit to the adjudicative process by disclosure of the communication outweighed the injury to the attorney-client relationship (State v. Cascone, 195 Conn. 183 (1985)). But in State v. Williams, the appellate court applied the balancing test and upheld the privilege. The court ruled that the harm to the ongoing attorney-client relationship by disclosure outweighed the need for the information which related only to the credibility of witnesses who had already been cross-examined at length on the issue (30 Conn. App. (1993)).
While Upjohn and Shew are broad applications of the privilege, the Connecticut Supreme Court in Cascone showed its willingness to adopt a balancing test when important interests conflict. Many cases emphasize the need for certainty and predictability in the privilege in order to promote communication with lawyers. “[A]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts is little better than no privilege at all.” (Upjohn, 449 U.S. at 393). But the privilege is often interpreted narrowly because it withholds information from the court. It is unclear how these issues might be resolved in Connecticut.