Second Circuit says government lawyers have privilege too.

The attorney-client privilege applies to government lawyers as well as attorneys representing private citizens or businesses, the Second Circuit has ruled. The appeals court reversed an order compelling a former lawyer for the Connecticut governor's office to testify before a grand jury in a federal criminal investigation of the governor and his staff. The ruling splits with three other circuits.

"The argument for letting state officials claim [this] privilege is that ... encouraging officials to seek advice and to communicate confidentially furthers governmental goals more effectively than a system in which no privilege is recognized in criminal investigations," said Professor Stephen Saltzburg, a privilege-issues expert at George Washington University Law School in Washington, D.C.

The U.S. Attorney's Office in New Haven was investigating possible criminal violations by Connecticut state employees, particularly whether Gov. John Rowland and his staff accepted gifts in return for public favors, such as awarding government contracts. In February 2004, a federal grand jury subpoenaed Anne George, former chief legal counsel to the governor's office.

Rowland's office told George that it believed the information sought by investigators was protected by the attorney-client privilege--a claim she asserted in her appearance before the grand jury in April. She confirmed that she had discussed the subject of the receipt of gifts and state ethics laws with the governor and his staff, but she refused to divulge the content of the conversations.

Later that same month, Chief District Judge Robert Chatigny ordered George to testify. The Second Circuit quoted Chatigny's unpublished ruling as saying that "'any governmental attorney-client privilege must yield because the interests served by the grand jury's fact-finding process clearly outweigh the interest served by the privilege'" and "'unlike a private lawyer's duty of loyalty to an individual client, a government lawyer's duty does not lie solely with his or her client agency,' but also with the public." (In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005).)

In June, one day before scheduled oral arguments in the Second Circuit, Rowland announced his resignation. The U.S. Attorney's Office asked the new governor to waive the attorney-client privilege with respect to George's testimony, but she refused. In August, the Second Circuit reversed the district court's order.

Rowland pleaded guilty to federal charges in December, and the grand jury expired the next month. The U.S. Attorney's Office asked the Second Circuit to dismiss the appeal and vacate its August order regarding the privilege, as the issue was now moot. The court refused and issued an opinion in February to explain its earlier ruling.

The U.S. Attorney's Office stressed George's status as a state employee, arguing that her "loyalty to the governor ... must yield to her loyalty to the public, to whom she owes ultimate allegiance when violations of the criminal law are at stake."

The Second Circuit disagreed, noting that the purpose of the attorney-client privilege is to encourage "full and frank communication." The court said, "It is also in the public interest for high state officials to receive and act upon the best possible legal advice."

Saltzburg said the issue is of "enormous importance." The question, he said, is "Why should a governmental client have less freedom to claim privilege than any other person or entity?"

Other circuits had held that the attorney-client privilege is weaker in the government context than in the private sector and must yield to a federal grand jury's criminal investigation. (In re A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997).)

The rulings by the D.C. Circuit and the Eighth Circuit involved federal employees. Those courts reasoned that the privilege must yield to a government investigation because federal employees--including government lawyers--must report evidence of criminal acts, so there is no expectation that communications that might involve crimes are confidential, Saltzburg said.

"The problem with this approach is that officials and agencies may have a genuine interest in seeking advice about whether an action is lawful or not, and the denial of a privilege may discourage the seeking of such advice," he said.

Some states do not have reporting requirements for their officials, so confidentiality may be expected. Connecticut has a law specifically protecting government attorney-client privilege in criminal and civil cases, Saltzburg said. Although it does not necessarily apply to this federal investigation, "the statute indicates a judgment made by the legislature on the importance of allowing officials and agencies to obtain confidential legal advice."