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Government Attorney Advice and the Attorney-Client Privilege
Saturday, April 16th, 2011
In my last post, I dealt with the many arguments against application of
the attorney-client privilege in the context of an inspector general,
or ethics commission, investigation of official misconduct. One thing I
did not do was respond to the general argument in favor of
attorney-client privilege.
That argument was well stated by the corporation counsel in her appellate brief (attached; see below):
In fact, with respect to possible unethical conduct, this advice would ordinarily be sought from the ethics board or the inspector general's office rather than from the corporation counsel. Then the advice would be protected not by attorney-client privilege, but by the fact that it was given by the very people charged with investigating or enforcing the relevant laws, and therefore could be relied on by the official.
The second kind of advice is after-the-fact advice, advice sought in a situation where job, reputation, and liberty are vulnerable, and where it is important that a client provide his lawyer with the "raw truth." The corporation counsel wrongly described the reason this "raw truth" needs to be given, that is, to ensure that the government complies with the law.
It's too late for that at this point. If the conduct has already occurred, then the government is in the position not of complying with the law, but defending, or not defending, its official. And the question arises whether the government should be defending an official from a government investigation, whether by the IG, the ethics board, an auditor, or an investigator hired to do the job for the government.
I think the official, in this situation, should be telling the "raw truth" to private counsel, where the attorney-client privilege does arguably apply. I say arguably, because the official still has an obligation to cooperate fully with the IG's investigation, an obligation that does not exist in, say, an FBI investigation.
In fact, if the corporation counsel is successful in getting either the court or the council to make the attorney-client privilege "sacred" in the government context, this makes it all the more important that the corporation counsel refuse to talk with an official who has participated in what might be unethical or illegal conduct. The reason is that, by doing this, the corporation counsel is effectively protecting the official and compromising her own obligation to fully cooperate with the IG, her obligation to uncover and eliminate official misconduct, and her obligation to preserve the public trust.
Were there not an attorney-client privilege in such a context, then the corporation counsel could advise the official, as long as the advice was of the sort that she would not be embarrassed to have appear on the front page of the Tribune. In other words, in the context of an IG or EC investigation, you can't give your advice and privilege it, too.
Robert Wechsler
Director of Research-Retired, City Ethics
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That argument was well stated by the corporation counsel in her appellate brief (attached; see below):
-
It is crucial that government
officials, who are 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.
Upholding the privilege furthers a culture in which consultation with
government lawyers is accepted as a normal, desirable, and even
indispensable part of conducting public business. Abrogating the
privilege undermines that culture and thereby impairs the public
interest. ... [T]here is every reason to fear that absent protection of
confidential
communications with government counsel, public officials, who could
risk their "jobs, their reputations, their privacy, or their
liberty,"
would be less likely to tell the "raw truth" to government counsel so
that counsel could ensure the government complied with the law.
In fact, with respect to possible unethical conduct, this advice would ordinarily be sought from the ethics board or the inspector general's office rather than from the corporation counsel. Then the advice would be protected not by attorney-client privilege, but by the fact that it was given by the very people charged with investigating or enforcing the relevant laws, and therefore could be relied on by the official.
The second kind of advice is after-the-fact advice, advice sought in a situation where job, reputation, and liberty are vulnerable, and where it is important that a client provide his lawyer with the "raw truth." The corporation counsel wrongly described the reason this "raw truth" needs to be given, that is, to ensure that the government complies with the law.
It's too late for that at this point. If the conduct has already occurred, then the government is in the position not of complying with the law, but defending, or not defending, its official. And the question arises whether the government should be defending an official from a government investigation, whether by the IG, the ethics board, an auditor, or an investigator hired to do the job for the government.
I think the official, in this situation, should be telling the "raw truth" to private counsel, where the attorney-client privilege does arguably apply. I say arguably, because the official still has an obligation to cooperate fully with the IG's investigation, an obligation that does not exist in, say, an FBI investigation.
In fact, if the corporation counsel is successful in getting either the court or the council to make the attorney-client privilege "sacred" in the government context, this makes it all the more important that the corporation counsel refuse to talk with an official who has participated in what might be unethical or illegal conduct. The reason is that, by doing this, the corporation counsel is effectively protecting the official and compromising her own obligation to fully cooperate with the IG, her obligation to uncover and eliminate official misconduct, and her obligation to preserve the public trust.
Were there not an attorney-client privilege in such a context, then the corporation counsel could advise the official, as long as the advice was of the sort that she would not be embarrassed to have appear on the front page of the Tribune. In other words, in the context of an IG or EC investigation, you can't give your advice and privilege it, too.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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 Ferguson v Georges App Def Response Brief.pdf | 0 bytes |
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