Member Groups

The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

September 2005, vol. 7, no. 1

Attorney-client privilege in the government sector: United States v. John Doe (In re Grand Jury Investigation)

United States v. John Doe (In re Grand Jury Investigation), 399 F.3d 527, 535 (2d Cir. 2005) (In re Grand Jury Investigation) addresses a grand jury subpoena issued to Anne C. George, former chief legal counsel to the Office of the Governor of Connecticut. The district court entered an order compelling Ms. George to testify in compliance with the grand jury subpoena. The court held that because the testimony was necessary to the grand jury, the governmental attorney-client privilege must yield as the interests served by the grand jury’s fact-finding process outweigh the interest served by the privilege. The United States Court of Appeals for the Second Circuit reversed, holding that the attorney-client privilege applied and refused to fashion a balancing test or otherwise establish a rule whereby a generalized assertion of privilege must yield to the demonstrated, specific need for evidence.

George was chief legal counsel to the Governor of Connecticut from August 2000 to December 2002. In February 2004, a federal grand jury subpoenaed her testimony. The U.S. Attorney’s Office was investigating whether the Governor and members of his staff received gifts from private individuals in exchange for public favors, specifically the award of state contracts. The grand jury subpoena would also include testimony by George regarding the content of confidential conversations she had with the Governor and members of his staff for the purpose of providing legal advice. The Governor’s Office asserted the attorney-client privilege. Further, George refused to submit to a voluntary interview with the U.S. Attorney’s Office because she believed that the information the Government was seeking was protected by the attorney-client privilege. On March 3, 2004, the Government moved in the district court to compel George to testify about confidential communications between George, the Governor, and members of his staff. On April 7, 2004, George appeared before the grand jury and asserted the attorney-client privilege on behalf of her client, the Office of the Governor of Connecticut. George refused to answer questions pertaining to the content of conversations regarding the practice of state contracts being sent to the Governor’s Office for approval, the receipt of gifts, the meaning of related state ethics laws and other related discussions in which George was providing legal advice to her client. In re Grand Jury Investigation, 399 F.3d at 529-530.

The district court entered an order compelling the testimony of George. The court distinguished the government lawyer’s attorney-client privilege from the private lawyer’s attorney-client privilege finding that the latter involved a duty of loyalty only to an individual client. The court reasoned that a government lawyer’s duty does not lie solely with his or her client but also with the public. The court applied a balancing test to the government lawyer’s attorney-client privilege and determined that it must yield because the interests served by the grand jury clearly outweigh the interest served by the privilege. The Second Circuit reversed and took a position it said was in conflict with the other circuits. Id. at 536.

Federal Rule of Evidence 501 governs the nature and scope of a privilege asserted in proceedings before a federal grand jury. In re Katz, 623 F.2d 122, 124 n.1 (2d Cir. 1980). The rule instructs, “...the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed. R. Evid. 501. In determining whether the Office of the Governor may claim a privilege, the Second Circuit reasoned that while it is in the public interest for the grand jury to collect all relevant evidence, it is also in the public interest for high ranking state officials to receive the best possible legal advice. The court held that “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.” In re Grand Jury Investigation, 399 F.3d at 534. The court found that the attorney client privilege applies “with special force” in the government context. Further, the court rejected the idea that the privilege is somehow “less important” when applied in the government context and refused to fashion a balancing test. Id. at 535.

Of course, the court distinguished its decision from traditional doctrines such as the crime-fraud exception. The crime-fraud exception “strips the privilege” from attorney-client communications in furtherance of ongoing criminal or fraudulent conduct. In re John Doe, Inc., 13 F.3d 633, 636 (2d Cir. 1994). Further, the court’s decision did not merely “extend” the attorney client privilege to the instant case. Instead, the court held that it “simply refused to countenance its abrogation in circumstances to which its venerable and worthy purposes fully pertain.” In re Grand Jury Investigation, 399 F.3d at 536. By agreeing that George, as legal counsel to the former Governor, could assert the privilege applied to conversations about a federal investigation into quid pro quos for gifts received by the Governor, 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. Id.

With respect to other federal appeals courts, in 2002, the Seventh Circuit found that government lawyers were under a higher, competing duty to act in the public interest. In Re: A Witness Before the Special Grand Jury (Ryan), 288 F.3d 289 (7th Cir. 2002) (“While we recognize the need for full and frank communication between government officials, we are more persuaded by the serious arguments against extending the attorney-client privilege to protect communications between government lawyers and the public officials they serve when criminal proceedings are at issue.”) Ryan, 288 F.3d at 293. The Seventh Circuit fashioned a balancing test and determined that the “lack of criminal liability for government agencies” and the significant duty of government lawyers to “uphold the law and foster an open and accountable government” outweighs the need for an attorney-client privilege in this context. Id. at 294.

Similarly, in 1998, the District of Columbia Circuit (D.C. Circuit) supported the view that the attorney-client privilege in the government context is weaker than in its traditional form. The D.C. Circuit found that government lawyers have a higher, competing duty to act in the public interest and rectify wrongful official acts despite the general rule of confidentiality. In Re: Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d 1263 (D.C. Cir. 1998). The court held that a government attorney is absolutely distinct from a private attorney in the context of a grand jury subpoena for information related to federal crimes. Further, the court found that “when government attorneys learn, through communications with their clients, of information related to criminal misconduct, they may not rely on the government attorney-client privilege to shield such information from disclosure to a grand jury.” Lindsey, 158 F.3d at 1278.

The Eighth Circuit also fashioned a balancing test in support of the proposition that the “governmental” attorney-client privilege is outweighed by a federal grand jury seeking information or statements that would otherwise be privileged in order to further a criminal investigation. In re: Grand Jury Subpoena Duces Tecum (Grand Jury), 112 F.3d 910 (8th Cir. 1997). Similar to the rationale in Ryan, the Eighth Circuit found that because entities of the government are not themselves subject to criminal liability, a government attorney has the liberty to discuss anything with a government official, except for possible criminal wrongdoing by that official, without concern for later revelation of the discussion. Grand Jury, 112 F.3d at 921. However, a government official who may have violated criminal law and needs legal advice should consult with a private attorney and not a government attorney. Id.

Ryan, Lindsey and Grand Jury all questioned the significance of the traditional rationale supporting the attorney-client privilege and how that rationale applied to the government context. By upholding the attorney-client privilege, the Second Circuit in In re Grand Jury Investigation furthers a culture in which consultation with government lawyers is accepted as a normal and even indispensable part of conducting public business. However, given the tension with other circuits, this court’s endorsement of the attorney-client privilege for government officials may be a strong candidate for United States Supreme Court review.