CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, February 25, 2005

Second Circuit Applies Attorney-Client Privilege to Government Arena

From  "Tuesday's endorsement of the attorney-client privilege for government officials by the 2nd U.S. Circuit Court of Appeals may be a strong candidate for U.S. Supreme Court review. By agreeing that legal counsel for former Connecticut Governor John Rowland could assert the privilege applied to conversations about a federal investigation into quid pro quos for gifts the governor received, the panel admittedly staked out a position it said was in conflict with one other federal appeals court and 'in sharp tension' with decisions in two other circuits. Unlike other circuits, including the D.C. Circuit when it ordered Deputy White House Counsel Bruce Lindsey to testify about former President Bill Clinton's relationship with Monica Lewinsky, the 2nd Circuit in United States v. John Doe, 04-2287-cv, said that, if anything, 'the traditional rationale for the privilege applies with special force in the government context.'  'It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice,' Chief Judge John M. Walker Jr. said. 'Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business.'  Connecticut District Court Judge Robert N. Chatigny had ordered Anne C. George, former chief legal counsel to the Office of the Governor, to answer questions before a grand jury about her conversations with Rowland and his staff concerning the federal probe. The scandal ended last year with the resignation of Rowland and his entry of a guilty plea on Dec. 23 to one count of conspiracy to steal honest service.  The 2nd Circuit reversed Chatigny after hearing an expedited appeal in August, finding that George would not have to testify. A panel of Judges Walker, Dennis Jacobs and Pierre Leval released a 20-page opinion on Tuesday explaining their rationale."  Full story here.  [Mark Godsey]

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