Government Attorney Advice and the Attorney-Client Privilege
In <a href="http://www.cityethics.org/node/1478" target="”_blank”">my last post</a>, 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.<br>
<br>
That argument was well stated by the corporation counsel in her
appellate brief (attached; see below):<ul>
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.</ul>
This argument refers to two different kinds of legal advice. One is
legal advice to officials that will enable them to uphold and execute
the law. This advice is given to officials before they act. I agree
that this sort of advice is extremely important, but there is nothing
to hide when an official asks an attorney what he should do to comply
with the law. This is not the sort of information that needs to be
privileged.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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 <i>Tribune</i>. In other words, in the context of an IG or
EC investigation, you can't give your advice and privilege it, too.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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