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

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 an article in the Chicago Sun-Times, 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:

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.

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 the complaint in this case, Ch. 2-56 of the city's municipal code 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 an executive order. 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 §213(6) of the City Ethics Model Code).

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 article in the Chicago Tribune, 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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