The Government Attorney-Client Privilege in a Local Government Investigatory Context

Anonymous

Sat, 04/16/2011 - 04:05

City Related

Is the attorney-client privilege, in the context of an inspector
general's (or, for that a matter, an ethics commission's) investigation
of misconduct in city government,
"sacred," as Chicago's corporation counsel insists? Is it even
appropriate? 
 
This is a long post that will be fascinating to many, will raise hackles in some, but will be of less
interest to others. If you want to cut to the chase, read the summary
paragraph at the end and move on.

A year ago, I wrote <a href="http://www.cityethics.org/content/circuit-judge-chicago-gets-government…; target="”_blank”">a
blog
post</a> about an Illinois circuit court decision in the case of
Ferguson v. Georges, where it was decided that Chicago's corporation
counsel could redact documents subpoenaed by the city's inspector
general on the basis of attorney-client privilege. I gave many reasons
why, on the basis of law and public policy, this decision was wrong. 
 
The treatment of attorney-client privilege in a government
investigatory context is relevant to ethics commission investigations
as well,
because ECs too usually have subpoena power. In fact, in some
jurisdictions, it is the IG's office that performs ethics
investigations. 
 
Chicago's IG appealed the decision, and <a href="http://www.state.il.us/court/Media/Appellate/1st_District.asp" target="”_blank”">oral
argument</a> was held on March 24, 2011. Taking into account what was
said by the only judge who asked questions of the IG's
counsel, it doesn't look good for the use of subpoenas in local
government investigations of high-level officials in Illinois. 
 
Background: The IG's Report 
This is Chicago, where the Shakman Decree, seeking to control patronage
through the federal courts,
is still active (see <a href="http://www.cityethics.org/search/node/shakman" target="”_blank”">my blog posts on
Shakman-related matters</a>). In March 2009, the federal district court
overseeing the Shakman Decree directed Chicago's IG to submit "a
report to the Court summarizing (i) his
investigations of political discrimination in
connection with any aspect of employment with the
City; (ii) any recommendations for corrective or
disciplinary action he has made; and (iii) his
views with regard to the City’s response to those
recommendations." 
 
In <a href="http://www.scribd.com/doc/26083791/Report-Investigations-of-Political-D…; target="”_blank”">that
report</a>, filed on January 29, 2010, the IG reported that "the City has begun routinely
invoking the attorney-client privilege to preclude
the IGO from obtaining key documents in
investigations, including in employment
investigations. For
example, the City asserted the privilege and withheld documents in an
investigation relating to the hiring of a former
high-level City employee through a sole source
contract. In
fact,
the City now routinely adopts the position that it need not
provide the IGO with
information that it
characterizes as 'privileged.' If the conduct
and decisions of high-level City employees are cloaked from the IGO
under the auspices of a wholesale invocation of
privilege, it is difficult to conceive how
substantial compliance with the Shakman
decree could ever be obtained." 
 
In Ferguson v. Georges, the corporation counsel asserts that she is
required to take the attorney-client privilege into account in dealing
with the IG's request, or she could be in violation of the Rules of
Professional Conduct. But the IG report points out that,"The importance of this matter to
the City appears not to be borne merely out of a cautious
impulse by the City to steer clear of any possible
breach of the attorney-client privilege. To the
contrary, the Corporation Counsel has publicly
asserted in a hearing before the City Council that
even if the Chancery Court were to issue a ruling
favorable to the IG on the privilege issue, she
would seek to override an adverse ruling by seeking an
amendment to the Municipal Code that
adopts her position." 
 
"My Privilege Is Sacred" 
In fact, according to the report, in a hearing before a city council
committee, the corporation
counsel said, "If a court held that I would have to
submit these documents to the IG because of
statutes within the Municipal Code, I’d probably ask
you all to
amend the Municipal Code to say that my privilege is sacred." 
 
Note those last four words, "my privilege is sacred." First of all, it
is not the corporation counsel's privilege; it is her client's
privilege. Second, no privilege is
sacred. As one of the appellate court judges told the assistant
corporation counsel arguing the case, "a privilege is not a right." And
even rights are not sacred; they are balanced against other
rights, and obligations. 
 
These four words show how emotional the issue of
attorney-client privilege is to lawyers, how prejudiced they are in its favor, and how blind it makes them to public policy considerations that are undermined by this privilege. This is why judges,
who are also
lawyers, have generally discriminated in favor of the privilege, even
when other policies and even laws militate against
raising this privilege or act effectively as waivers by
the client. Remember that the client here is the public and its representatives,
that is, the very people who gave the IG the power to investigate city officials, who gave themselves an obligation to cooperate, and who made no exceptions for attorney-client privilege. 
 
Reasons Why Chicago Documents Should Not Be Privileged 
In two appellate briefs (attached; see below) and in the oral argument,
the IG set out four reasons why the requested documents should not be
protected by the attorney-client privilege. I add to the IG's arguments.<ul>

1. Every official owes an express statutory duty of full cooperation to
the IG. Because they have this duty, the IG argues, officials have no
expectation
of confidentiality with respect to matters that may be investigated by
the IG. I would argue that, because of this duty, they have an
obligation to waive whatever privilege they may have. 
 
2. The IG and the city share a common interest in the goal of
uncovering and eliminating government misconduct. Because of this
common interest, the documents are effectively staying within the same
political entity, and they are being used for a shared purpose.
Therefore, the purpose of the privilege, to protect confidential
information, does not even exist. It is not even confidential
information. 
 
3. Obstructing an investigation by insisting that documents are
privileged poses a risk of undermining public trust in the integrity of
the government and its commitment to serving the public interest. I
would translate this into the statement that a mayor, or other
official, who would not
waive the attorney-client privilege will look like he is hiding
valuable information from the office responsible for investigating
government misconduct. 
 
4. The Rules of Professional Conduct recognize that attorney-client
privilege does not apply to government attorneys the same way it does
to private attorneys. A comment to Rule 1.13 reads, "[W]hen the client
is a governmental organization, a different balance may be appropriate
between maintaining confidentiality and assuring that the wrongful act
is prevented or rectified, for public business is involved."</ul>

A Privilege Based on Membership, Not Function 
I go further than this. I believe that government attorneys are
government first, and attorneys second. Let me give you an example that
makes this statement more clear. I am not a member of any bar association. I
administer
a public campaign financing program in New Haven. When the board
members have questions about the relevant ordinance, or other laws and
policy matters, they ask me. I deal with legal issues all the time. If
I
were a member of a bar, the Chicago corporation counsel and, I think,
the majority of government attorneys, would say that what the board
members said or wrote to me would be privileged, and no one would have
an obligation to waive this privilege, even if an inspector general or
ethics commission subpoenaed the documents and the officials had an
obligation to cooperate with them. However, because I am not a
member of a bar, what the board members said or wrote to me would not
be privileged at all. 
 
The privilege is all or nothing, based not on my
role as a public
servant providing information about laws, but on whether or not I am a member of
a bar association. This privilege applies to attorneys even when they are not giving legal advice, but not to non-attorneys when they are providing information about laws. 
 
It is absurd to base a privilege on membership rather than function. Such a
position allows a government official to place her personal interest in
protecting herself from an investigation ahead of the public interest
in discovering misconduct by government officials. To do this, all she
has to do is consult with the corporation counsel's office. 
 
The Obligation to Be Transparent 
The briefs talk on and on about laws and rules and decisions, but there
is very little case law relevant to this situation, and the
reason is that attorney-client privilege is rarely questioned. It is,
in fact, treated as sacred, even in a governmental context. 
 
By focusing on laws and rules and decisions, both parties and the
judges ignore one very important issue: do government officials
have an obligation to waive the attorney-client privilege? Not only do
Chicago officials have an express obligation to cooperate. But, like
most officials nationwide, they are also subject to a <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2" target="”_blank”">Freedom
of
Information Act</a> that creates an obligation to be transparent.
Ordinary clients have neither obligation. This difference in
obligations alone is enough to to make a government official's
attorney-client privilege a pale thing compared to an ordinary client's. 
 
The FOI Act sets forth exceptions to this obligation to be transparent,
but none of the exceptions invokes the attorney-client privilege. There
is an exception for
litigation, but it is not because litigation involves
lawyers. Litigation is excepted to prevent the other side from
discovering government attorneys' litigation-oriented work product.
It is a practical exception, not one that recognizes one profession's
privileges as a more important public policy than transparency. 
 
Is It Really Worth It? 
Think how it looks to a citizen of Chicago. For decades, your city government has
had the worst
patronage problems in the country, including extensive fraud and waste, and you're
lucky enough to have had an IG's office created to investigate it and a
federal district court to keep the pressure on. And
then the corporation counsel, hired by and accountable to the mayor,
raises this special privilege on behalf of the mayor whose
administration is being investigated. And the privilege doesn't even
seem relevant to government, because a corporation counsel's client is
the public, after all, not any individual. And this apparently
irrelevant privilege, invoked apparently by someone who is being
investigated (no one seems to have had the courage to say he refuses to
waive the privilege), is
used to keep the IG's hands off numerous documents and parts of
documents relevant to its investigation. Then a judge, who is also a
lawyer, puts this privilege ahead of the public interest in honest
government and transparency. And then more judges, also lawyers, do the
same thing . . . 
 
Can this possibly do anything but undermine the public's trust in our
government and our legal system? Could this possibly be worth whatever
value the attorney-client privilege has in this context? 
 
An Issue That Can Make a Seasoned Judge Naïve 
I'd like to end this post with another
unbelievable statement that shows how hard it is for a lawyer to get
her mind around the possibility that the attorney-client privilege, in
this context, is poor public policy. This time it is something one of
the appellate
judges said during oral argument. Here's the lead-in from counsel
to the IG:<ul>

If the corporation counsel, the mayor's lawyer, is able to obstruct ...
investigations by asserting the authority of the attorney-client
privilege, what, Your Honor, would the consequence be? Every time a
sensitive investigation went forward and people were concerned about
the investigative capacity of the inspector general, wouldn't they rush
over and talk to the corporation counsel ahead of time, thereby to
insulate from his investigative capacity the documents and the
conversations they wanted to preserve as safe? And wouldn't the public
see through that ruse ...</ul>

And here is the judge's response:<ul>

I think it's unrealistic to suggest that someone would suddenly give
information that would be protected, for the sole purpose of ... that
makes no sense to me. ... The one portion of your remark, that this
would suggest that people would suddenly go to the corporation
counsel's office to give them information that would be detrimental to
their own person...</ul>

Remember, this is Chicago. What but something as "sacred" as the
attorney-client privilege could lead a seasoned judge to see as
nonsense the possibility, even the likelihood, that Chicago officials
would use the attorney-client privilege to protect themselves from an
investigation into their conduct? 
 
Pulling It All Together 
The attorney-client privilege is not sacred. In fact, in a government
context, where the attorney is neither private nor independent, where
the client is not private, where both attorney and client have an
obligation to cooperate with the IG as well as a
fiduciary duty to make government ethical, and where
there are clearly stated rules concerning the transparency of
government documents, that
provide no exception for officials who are members of a bar, where there is arguably no confidential information at all (at least in this context), what role
should this privilege play at all? 
 
<a href="http://www.cityethics.org/search/node/attorney-client%20privilege" target="”_blank”">Click
here</a> to read other blog posts on attorney-client privilege. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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