Federal Decision on Citizens and the Attorney-Client Privilege

Music to my ears in <a href="http://electionlawblog.org/wp-content/uploads/11-CV-562-PLD-166-2012-02…; target="”_blank”">an
order yesterday</a> from the federal court for the Eastern
District of Wisconsin, in a case involving an unsuccessful attempt by certain
Wisconsin state legislators to claim the attorney-client privilege
with respect to documents relating to redistricting. What resonates so nicely is the way the court considered
state citizens to be the client of the private lawyer. Since they
would, of course, be the client of a government lawyer as well, this
decision would apply even more forcefully, but without the talk of
"shamefulness," to documents discussed with government lawyers.<ul>

The Court well appreciates that in this instance there is an
extremely fine line between legal advice offered by counsel to the
Legislature (its client) on the one hand, and political or
strategic advice offered on the other. But that line is so thinly
drawn purely as a result of the Legislature’s own doing. Without a
doubt, the Legislature made a conscious choice to involve private
lawyers in what gives every appearance of an attempt—albeit poorly
disguised—to cloak the private machinations of Wisconsin’s
Republican legislators in the shroud of attorney-client privilege.
What could have—indeed should have—been accomplished publicly
instead took place in private, in an all but shameful attempt to
hide the redistricting process from public scrutiny.<br>
<br>
Thus, simply put, a requirement that the documents be disclosed
is the only fair and just result of the Legislature’s decision to
mix politics and the law. As noted above, political and strategic
advice is not entitled to protection by the attorney-client
privilege. Evans, 231 F.R.D. at 312. Merely hiding political
decisions behind the closed doors (and email servers) of a law
firm does not make the advice offered any less political,
strategic, or policy related.<br>
<br>
In concluding that the documents at issue here are not privileged
from disclosure, the Court does not mean to suggest that the
attorney-client privilege is unavailable to government entities.
It is simply not available in this instance because of the
Legislature’s peculiar (and frankly unfortunate) decision in this
case to so blur the lines between political, strategic, and legal
advice as to make those lines practically disappear. In so doing,
the movants—who, in fact, seem to act on behalf of only a portion
of the Legislature despite their assertion that they act on behalf
of the full Legislature (and, by extension, all of Wisconsin’s
citizens)—have tried to hide the redistricting process from the
very people whose rights are at stake in that process. And those
very people, Wisconsin’s citizens, have paid through their tax
dollars for the efforts ostensibly taken on their behalf. The
Court finds it highly doubtful that any lawyer’s client would
delight in having the documents and communications for which they
have paid kept beyond their reach. Thus, in these particular
circumstances, it would be inappropriate to shield from disclosure
the communications provided to the Court for in camera review.</ul>

Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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