A Circuit Judge in Chicago Gets the Government Attorney-Client Privilege Wrong

Anonymous

Sat, 04/24/2010 - 05:42

City Related

A city creates the position of inspector general in order to root out,
and hopefully prevent, corruption. The inspector general decides to
investigate a situation. A city attorney is involved. The
attorney-client privilege is invoked. The investigation is blocked. And
the word goes out: if you want to hide your corrupt conduct,
involve a city attorney. It's that simple.

According to <a href="http://www.suntimes.com/news/cityhall/2189510,inspector-general-mayor-d…; target="”_blank”">an
article in the Chicago Sun-Times</a>, a circuit court judge dismissed
an attempt by Chicago's inspector general to get access to information
held by the city's corporation counsel. 
 
Here's how the inspector general put it: 
<ul>
The decision gives the mayor and his corporation counsel final word
on whether and how far the inspector general can proceed with an
investigation into the upper reaches of the administration. The danger
is that the administration can invoke attorney-client privilege when it
wishes to build a wall around actions that may be of questionable
legality. 
</ul>
In other words, the mayor decides what the inspector general
investigates. This most likely applies to the board of ethics, as well. 
 
Whose Privilege Is It? 
The attorney-client privilege is not the attorney's privilege, it's
the client's. And who is the corporation counsel's client? The city of
Chicago. And who is the inspector general's client? The city of
Chicago. And who has the right to waive the privilege? The city of
Chicago, acting through its elected representatives, that is, either
the mayor or the council. 
 
However, if the corporation counsel is aware of illegal activity by
city officials, counsel should tell the officials to get private
counsel. Corporation counsel should not be representing any official
involved in illegal or unethical activity. 
 
The Duty to Cooperate 
As the IG argues in <a href="http://www.chicagoinspectorgeneral.org/pdf/09-CH-43287_complaint.pdf">t… complaint in this case</a>, Ch.
2-56 of <a href="http://www.amlegal.com/nxt/gateway.dll/Illinois/chicago_il/municipalcod…; target="”_blank”">the
city's municipal code</a> makes it "the duty of every officer,
employee, department, agency ... of the city ... to cooperate with the
inspector general in any investigation." And in 2005, the mayor
emphasized this in <a href="http://www.chicagoinspectorgeneral.org/pdf/executive-order2005-2.pdf&qu…; target="”_blank”">an
executive order</a>. Neither the council nor the mayor made an
exception for city officers who are lawyers. It is important to put duty to cooperate provisions in ethics codes (see <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC81…; target="”_blank”">§213(6) of the City Ethics Model Code</a>). 
 
But it isn't the corporation counsel who is not cooperating, it's
the mayor. Because he did not exclude himself from his executive order,
he has violated the ordinance by refusing to cooperate with the investigation, which means, in this instance, waiving
any attorney-client privilege the city might arguably have. 
 
Blocking the Investigation 
The first request to the city law department was made in August
2008, and the suit was filed in November 2009. Already the Daley
administration has succeeded in putting off the investigation for
nearly two years. It is likely the IG will appeal, and the delay will
continue. 
 
By blocking the investigation, Mayor Daley has effectively gutted the
IG's office and taken himself and his administration out of its
jurisdiction. 
 
The timing is interesting, because the mayor is seeking to give the
IG jurisdiction over the city council. The city council can now argue
that the mayor is fighting the IG's jurisdiction over him and his
administration. Why should the council give the IG something the mayor
refuses to give it? 
 
By the way, this case is not the exception. According to a January <a href="http://articles.chicagotribune.com/2010-01-31/news/1001300213_1_hiring-…; target="”_blank”">article
in the Chicago Tribune</a>, an IG report stated that (quoting the
article, not the report) "[the IG's] investigations into hiring abuses have
been hampered because Daley's top lawyer routinely invokes
attorney-client privilege to stop him from obtaining crucial documents;
the mayor's compliance office does not share key information; and the
city has failed to discipline employees involved in illegal hiring
practices." 
 
How Government Lawyers Differ from Other Lawyers 
According to the Sun-Times article, the corporation counsel said to
the council back in November that if the IG won his case, "she would
ask the City Council to amend the municipal code 'to say my privilege
is sacred. ... I do not think I can do my job and do it effectively for
you if my client, including those people in this room, think that
whatever they tell me is going to be turned over to the IG." 
 
This is what a normal lawyer would say. But a local government
attorney is not a normal lawyer. She does not work for the individuals
who speak to her. They did not hire her, they do not pay her, and her
obligation to them is limited. If they are involved in illegal or
unethical activity, bringing a lawyer into discussions about it must
not protect the discussions or documents from an IG or ethics board
investigation. 
 
A government attorney has no "sacred privilege." In fact, she has no
privilege at all. The privilege, to the extent it exists at all, is
held by the city of Chicago, which clearly and without exception
requires all officials and employees to fully cooperate with the IG.
Every official who spoke with the corporation counsel knew, or should
have known, this before they said a word or showed her a single
document. She and the judge who accepted her argument are wrong. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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A Circuit Judge in Chicago Gets the Government Attorney-Client Privilege Wrong

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