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Attorney-client privilege

Attorney-client privilege
Re Lindsey Grand Jury Testimony, CADC, 148 F.3d 1100

The attorney-client privilege has been frequently relied upon in an effort to bar the disclosure of conversations between an individual and his or her attorney. The decision by the U.S. Circuit Court of Appeals for the District of Columbia in the Lindsey case points out a number of important limitations concerning claiming such a privilege, which affects both federal and state officials.

In Lindsey, the issue was whether the conversation between an government executive, here the President, and a government employee-attorney serving as his counsel for the purpose of obtaining legal advice, triggered the attorney-client privilege with respect to compelling testimony by the attorney before a grand jury.

In a nutshell, the court said that if a public official wishes to claim an attorney-client privilege in connection with discussions involving ?official business? with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.

Essentially the ?attorney-client privilege? attaches to statements between an attorney and a client involved in a professional relationship, and which the attorney is not permitted to divulge without the approval of the client. It should be noted that only the client could rely on the privilege. If he or she waives the privilege, his or her attorney cannot refuse to divulge the communications on the grounds that it is subject to the privilege.

The D.C. Circuit said that no attorney-client privilege existed in the Lindsey case because in ?investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar.?

This view parallels the proposition that a government employee may not refuse to answer questions concerning the performance of his or her official duties on the theory that requiring such testimony violates the individual?s Fifth Amendment protections against self-incrimination.

When such testimony is compelled, the individual is given ?transactional? or ?use? immunity, meaning the statements so compelled may not be used against the employee in a subsequent criminal proceeding [see, for example, People v Corrigan, 80 NY2d 326].

One exception to this general rule noted by the courts: if the individual lies while giving such testimony, he or she cannot claim transactional or use immunity in connection with charges of perjury arising from his or her false testimony [see United States v. Apfelbaum, 445 US 115; People v. Shapiro, 50 NY2d 747].

In the Lindsey case, the principal question was whether a government employee-attorney in the Office of the President, having been called to testify before a federal grand jury, may, on the basis of the attorney-client privilege, refuse to answer questions about possible criminal conduct by government officials and others. The Circuit Court said no such privilege existed in this instance.

Below are selected quotes from the opinion:

1. If an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence.

2. With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.

3. Where one consults an attorney not as a lawyer but as a friend or as a business adviser or banker, or negotiator ... the consultation is not professional nor the statement privileged. Thus, advice on political, strategic, or policy issues, valuable as it may be, would not be shielded from disclosure by the attorney-client privilege.

As government officials can be compelled to testify concerning their performance of their official duties because such testimony would be subject to ?use immunity? or face disciplinary action, the claim of ?attorney-client privilege? appears to be illusory as a possible bar against a government-employee attorney testifying about his or her conversations with a public official.

Full post as published by New York Public Personnel Law on September 17, 2009 (boomark / email).