Thursday, February 24, 2005
Second Circuit Takes a Different Approach to Attorney-Client Privilege Claim Involving Government Official
During the government's investigation of former Connecticut Governor John Rowland, the grand jury subpoenaed the counsel to the Governor to testify regarding conversations she had with Rowland and members of his staff about the receipt of gifts, which was the focus of the investigation and the basis for the charge to which Rowland eventually pled guilty. The district court enforced the subpoena, but on appeal the Second Circuit (on Aug. 26, 2004) issued a summary order quashing the subpoena on attorney-client privilege grounds. On Feb. 22, the court issued its written opinion in In re: Grand Jury Investigation (available here on court website) explaining the basis for its decision. The Second Circuit rejected the approach of the Seventh, Eighth, and D.C. Circuits and upheld the attorney-client privilege assertion by a government attorney advising an official in relation to that person's duties. The other circuits have found the government's interests in investigating wrongdoing through the grand jury overcame the protections of the privilege when the investigation concerned the conduct of officials in the office. The D.C. and Eighth Circuit cases involved the Independent Counsel investigation of Whitewater (and "related" conduct) and the consultation by the President and First Lady with White House counsel. The Second Circuit rejected a balancing test, explaining
In arguing that we ought not "extend" the attorney-client privilege to the present situation, the Government asks us, in essence, to assign a precise functional value to its protections and then determine whether, and under what circumstances, the costs of these protections become too great to justify. We find the assumptions underlying this approach to be illusory, and the approach itself potentially dangerous. The Government assumes that "the public interest" in disclosure is readily apparent, and that a public official’s willingness to consult with counsel will be only "marginally" affected by the abrogation of the privilege in the face of a grand jury subpoena. Because we cannot accept either of these assumptions, we decline to abandon the attorney-client privilege in a context in which its protections arguably are needed most.
The court acknowledged that its decision conflicted with the Seventh Circuit's position and was in "sharp tension" with the Eighth and D.C. Circuit analysis, but it decided that the protections of the privilege outweighed the need of the grand jury to obtain evidence. While uncommon, cases involving the governmental attorney-client privilege do arise -- especially with the federal government's efforts to combat state and local corruption-- so that at some point the Supreme Court may have to intervene to settle the scope of the privilege.(ph)