TCS Daily

Privilege 101

By Pejman Yousefzadeh - September 6, 2005 12:00 AM

One of the arguments that has erupted in relation to the nomination of Judge John Roberts to the United States Supreme Court concerns just how available his writings as a lawyer in the White House Counsel's Office during the Reagan Administration and as the Deputy Solicitor General of the United States should be. In trying to pave the way for as wide a release of documents as possible -- and in trying perhaps to legitimate the pre-planned objection to a Bush Supreme Court nominee that the Senate was not able to consider a sufficient amount of documents about the candidate -- Democratic members of the Senate Judiciary Committee have taken to arguing that the work done by government attorneys does not enjoy any claim of privilege. Thus we have Senator Edward Kennedy arguing that "There is no privilege, there is no rule, there is no logic that would bar us from getting" documents written by Judge Roberts as a government attorney. Similar comments have been made by ranking Senate Judiciary Committee Democrat Senator Patrick Leahy.

But an analysis of the state of the law reveals both Senators Kennedy and Leahy to be in the wrong. Contrary to their assertions, government attorneys enjoy the protections of the work-product doctrine and the attorney-client privilege.

Rule 26(b)(3) of the Federal Rules of Civil Procedure promulgates the work-product doctrine, which protects against the disclosure of "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." No exception is made in the Federal Rules for "the mental impressions, conclusions, opinions, or legal theories" of government attorneys. Additionally, in Hickman v. Taylor, the United States Supreme Court found that:

        Historically, a lawyer is an officer of the court and is bound to work for 
        the advancement of justice while faithfully protecting the rightful interests of 
        his clients. In performing his various duties, however, it is essential 
        that a lawyer work with a certain degree of privacy, free from unnecessary 
        intrusion by opposing parties and their counsel. Proper preparation 
        of a client's case demands that he assemble information, sift what he 
        considers to be the relevant from the irrelevant facts, prepare his legal 
        theories and plan his strategy without undue and needless interference. 
        That is the historical and the necessary way in which lawyers act within the 
        framework of our system of jurisprudence to promote justice and to protect 
        their clients' interests. This work is reflected, of course, in interviews, 
        statements, memoranda, correspondence, briefs, mental impressions, 
        personal beliefs, and countless other tangible and intangible ways--aptly 
        though roughly termed by the Circuit Court of Appeals in this case as the 
        "work product of the lawyer." Were such materials open to opposing 
        counsel on mere demand, much of what is now put down in writing would 
        remain unwritten. An attorney's thoughts, heretofore inviolate, would not 
        be his own. Inefficiency, unfairness and sharp practices would inevitably 
        develop in the giving of legal advice and in the preparation of cases for 
        trial. The effect on the legal profession would be demoralizing. And the 
        interests of the clients and the cause of justice would be poorly served.

Again, no exception is found for government lawyers and the policy considerations put forth by the Court in Hickman apply to the case of government attorneys just as strongly as they do to the case of attorneys in the private sector. We certainly do not want government attorneys to be unable to "assemble information, sift what [they] consider to be the relevant from the irrelevant facts, prepare [their] legal theories and plan [their] strategy" while being concerned that the thoughts of government attorneys, "heretofore inviolate, would not be [their] own." "Inefficiency, unfairness and sharp practices would inevitably develop" as a result of any finding that government attorneys could not enjoy the benefits of the work-product doctrine. As such, the argument that "there is no privilege, there is no rule, there is no logic" behind a claim of privilege regarding Judge Roberts's writings and work as a government attorney plainly fails.

The attorney-client privilege covers communications between a client and a lawyer that were made in confidence and for the purpose of obtaining or providing legal assistance to the client. The common-law attorney-client privilege is codified by Rule 501 of the Federal Rules of Evidence. In Trammel v. United States, the United States Supreme Court stated the policy underlining the existence of the privilege: "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." Once again, as with the policy statement in Hickman, we find that the policy considerations behind the attorney-client privilege as remarked upon in Trammel apply just as much to government attorneys as they do to attorneys in the private sector.

Specific case law exists finding that the attorney-client privilege extends to government attorneys. As lawyer-blogger William Dyer points out in responding to Senator Leahy's claim to the contrary, the D.C. Circuit Court of Appeals found in In re Lindsey that:

        Courts, commentators, and government lawyers have long recognized 
        a government attorney-client privilege in several contexts. Much of the law 
        on this subject has developed in litigation about exemption five of the Freedom 
        of Information Act ("FOIA"). . . . Under that exemption, "intra-agency 
        memorandums or letters which would not be available by law to a party 
        other than an agency in litigation with the agency" are excused from mandatory 
        disclosure to the public. . . .

Dyer highlights as well the following statement made by former Assistant Attorney General and Solicitor General Ted Olsen-a statement approved of by the D.C. Circuit:

        [a]lthough the attorney-client privilege traditionally has been recognized in 
        the context of private attorney-client relationships, the privilege also functions 
        to protect communications between government attorneys and client agencies 
        or departments, as evidenced by its inclusion in the [Freedom of Information 
        Act], much as it operates to protect attorney-client communications 
        in the private sector.

Now, a number of documents written by Judge Roberts in his capacity as a lawyer in the Reagan Administration's White House Counsel's Office have been made public. But the documents were made public because the current Bush Administration -- as a successor-in-interest to the Reagan Administration -- waived the existence of the privilege. Only via such a waiver -- which is entirely at the discretion of the White House -- can certain documents be made public. The ability of the White House to waive the privilege does nothing whatsoever to undercut the existence of the privilege in the first place.

Of course, Democratic Senators are not the only ones getting the privilege arguments incorrect. The media have made serious mistakes in analyzing the issue as well -- including a mistaken citation to In re Grand Jury Subpoena by the Eighth Circuit Court of Appeals. In Grand Jury Subpoena, former Independent Counsel Kenneth Starr successfully argued that the attorney-client privilege for government lawyers cannot be used "to withhold potentially relevant information from a federal grand jury" assembled for the purpose of "a federal criminal investigation." (Emphasis mine.) As the lawblog Patterico's Pontifications quite properly points out in analyzing the import of this case:

        The [Eighth Circuit] did not base its ruling on the theory that government 
        lawyers work for the people, so that everything they say should be disclosed 
        to the people. Rather, the court repeatedly emphasized that Starr was 
        undertaking a criminal investigation
, and the privilege was being invoked 
        to shield testimony from a federal grand jury.

Additionally, Patterico points out the following language from the Eighth Circuit leaving the attorney-client privilege intact for government lawyers when there is no request for otherwise privileged documents in the course of a federal grand jury criminal investigation:

        We need not decide whether a governmental attorney-client privilege 
        exists in other contexts, for it is enough to conclude that even if it does, 
        the White House may not use the privilege to withhold potentially relevant 
        information from a federal grand jury.

As the language of the Eighth Circuit's decision and Patterico's own analysis make clear, the Eighth Circuit pierced the privilege only in the context of a federal grand jury criminal investigation. In other contexts, per the D.C. Circuit's decision in In re Lindsey, the government attorney-client privilege remains "long recognized." Or as blogger and law professor Eugene Volokh puts it:

        . . . the [Eighth Circuit] held only that there's no government attorney-client 
        privilege in criminal cases, where information is demanded by the grand jury. 
        The court's reasoning focused heavily on criminal investigations, and it said 
        that it "need not and do[es] not decide" what should happen in civil cases; 
        this suggests that it also didn't decide what should happen in other noncriminal 
        investigations, such as a Congressional investigation that wasn't focused on 
        criminal conduct.

So we see that the claims of Senators Kennedy and Leahy -- along with the claims of some in the media -- notwithstanding, the doctrines of work-product and attorney-client privilege are alive and well when it comes to government attorneys. Something to consider in what promises to be a furious and largely fact-free argument over whether Judge Roberts's work as a lawyer in the White House Counsel's Office and as Deputy Solicitor General should enjoy the claims of privilege absent any waiver.

The author is a lawyer and TCS contributor.


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