The newsletter of the ISBA’s Standing Committee on Government Lawyers
E-Mail and the Attorney-Client Privilege: In re County of Erie
In re County of Erie, 473 F.3d 413 (2d Cir. 2007), involved a class action lawsuit brought by a group of arrested individuals who alleged they were subjected to unconstitutional strip searches. During the course of the suit, a series of e-mails were exchanged between a government lawyer, an Assistant Erie County Attorney, and his client, the sheriff’s department. The issue was whether or not the attorney-client privilege was waived when those e-mails were distributed to certain individuals within the county sheriff’s department. The subjects of the e-mails were the law regarding strip searches of detainees, the county’s current search policy, and possible alternate policies. The e-mails also addressed any liability the county may face regarding the existing policy as well as guidance for implementing alternative policies.
During discovery, the county defendants withheld the e-mails as privileged, and the plaintiffs moved to compel production. The district court ordered the e-mails produced asserting that policy advice is not legal advice. The United States Court of Appeals for the Second Circuit reversed the district court, issued a writ of mandamus ordering the district court to vacate its order, entered an interim order to protect the confidentiality of the disputed e-mails, and remanded the case to the district court. County of Erie, 473 F.3d at 423. The question was whether the e-mails were merely rendering legal advice or going further into the realm of policymaking and administration.
Confidential communications between an attorney and his or her client made for the purpose of obtaining or providing legal assistance are protected by the attorney-client privilege. United States v. Construction Prods. Research, 73 F.3d 464, 473 (2d Cir. 1996). The purpose of this privilege is to encourage full and frank communication and thereby promote “broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The attorney-client privilege in the context of a government lawyer is distinguishable from that of a private lawyer. This is an issue of first impression regarding whether communications between a government lawyer with no policymaking authority and his client, who is a public official, are protected by the attorney-client privilege.
In the instant case, the Second Circuit focused on whether the “predominant purpose” of the e-mails was to solicit and render legal advice. County of Erie, 473 F.3d at 420-421. The court held that the purpose of the e-mail communications was to assess the legality of a policy and to suggest alternative policies based on the government lawyer’s advice. Id. at 422-423. In making its decision, the court considered the distinction between a government lawyer’s recommendations to his client, which are designed to ensure compliance with the law, as opposed to a government lawyer’s recommendations made for other reasons, such as policymaking, which may or may not be privileged. The court found that the government lawyer’s advice was not “general policy or political advice,” but was inherently legal in nature, and therefore protected from disclosure by the attorney-client privilege. Id. at 423.
There is little case law addressing the attorney-client privilege in the government context. However, in United States v. Doe (In re Grand Jury Investigation), 399 F.3d 527, 535 (2d Cir. 2005), the Second Circuit addressed this issue and upheld the attorney-client privilege in the context of a grand jury investigation. In that case, the court held that the attorney-client privilege applied, even in light of a grand jury subpoena, 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. The court further stated that a public official who is responsible for drafting policy that may directly effect the legal rights or responsibilities of the public and who is “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.” Grand Jury Investigation, 399 F.3d at 534. By holding that the legal counsel for 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. The Second Circuit’s decision in County of Erie further bolsters this circuit’s endorsement of the attorney-client privilege in the government attorney context.
Conflict with Other Circuits
In Re: A Witness Before the Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002) (Ryan), the Seventh Circuit found that government lawyers are under a higher, competing duty to act in the public interest. “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 In Re: Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d 1263 (D.C. Cir. 1998) (Lindsey), the D.C. Circuit supported the view that the attorney-client privilege in the government context is weaker than in its traditional form. The court 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. 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 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 In re: Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (Grand Jury Subpoena). 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 Subpoena, 112 F.3d 921. However, a government official who may have violated a criminal law and needs legal advice should consult with a private attorney. Id.
Ryan, Lindsey and Grand Jury Subpoena all questioned the significance of the traditional rationale supporting the attorney-client privilege and how that rationale applied in the government context. In County of Erie, the court reiterated its holding from In re Grand Jury Investigation that the attorney-client privilege applies with special force in the government context. County of Erie, 473 F.3d 418 - 9 (2d Cir. 2007). The Second Circuit continues to construe this privilege narrowly because although an open and accessible government is extremely important, public officials must have access to sound legal advice in order to serve the public interest. County of Erie, 473 F.3d 419. The court found that as long as “. . . the predominant purpose of the communication is legal advice, these considerations and caveats are not other than legal advice or severable from it.” Id. at 420. The court held that all of the e-mails at issue were “sent for the predominant purpose of soliciting or rendering legal advice.” Id. at 422. By upholding the attorney-client privilege, the Second Circuit has furthered 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, the Second Circuit’s endorsement of the attorney-client privilege for government officials may be a strong candidate for U.S. Supreme Court review.
Local Need for the Privilege
The Cook County State’s Attorney’s Office is routinely called on to give legal advice and counsel to elected and appointed county officials. Many of these officials are policymakers who may not yet be involved in litigation but could be the subject of future litigation based on their conduct and implementation of various policies that may be adopted. The legal advice given often impacts policy as well as legislation. The court’s decision in County of Erie is important in that it affirms that legal advice given should lead to a governmental policy that promotes compliance with existing law.
Cook County is involved with many types of litigation, including compliance with several consent decrees and/or settlement agreements that involve jail overcrowding, juvenile detention facilities, and political hiring. Negotiating the entry of such decrees and agreements and obtaining compliance with these requires careful legal advice. This legal advice impacts how policies are implemented and executed by elected and appointed public officials. Confidentiality of this legal advice is essential and must be protected by attorney-client privilege. As the court noted in County of Erie, “legal considerations will play a role in governmental policy making.” The legal advice given by government lawyers must be protected and kept confidential to promote and preserve public interest. The availability of confidential legal advice clearly benefits the governmental client as well as the general public.