10.02.02.02. Communication Between Government Attorney and Public Official

One issue that comes up more often than you would think involves communications between government officials and government lawyers.  Perhaps the best known case addressing this involved Hillary Clinton when she was First Lady.  During the Clinton presidency, a special prosecutor was appointed to investigate some transactions the Clintons were involved with while they were practicing law (known as “Whitewater”).  In the course of the investigation, the special prosecutor issued a subpoena for notes of communications between Hillary Clinton and lawyers employed by the White House.  Clinton claimed that the communications were protected by the attorney-client privilege.  The court rejected the argument, holding that privilege did not apply to communications between a government official and a government attorney where the discussions related to potential criminal wrongdoing, concluding:  “to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would present a gross misuse of public assets.”[1]  In these situations the privilege belongs to the government and not the public official.  Therefore, if the government official wants to ensure their communications are protected, they should retain their own private counsel.

John Kitzhaber served as governor of Oregon between 1995 and 2003 and again from 2011 until 2015.  During his second stint as governor there was a controvery over whether he used his position to benefit his fiancée.  He resigned admist the controversy in 2015.  As part of the investigation into whether Kitzhaber violated federal laws, the federal government issued a subpoena seeking a broad range of information – including emails between: (1) Kitzhaber and the lawyers for the State of Oregon and (2) Kitzhaber and his personal attorneys.  The emails were saved on a public server.  Should the court order disclosure of all of the emails? [In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083 (9^th Cir. 2016)]

The court ruled that the communications between the governor and the state attorneys about the governor’s potential ethical problems were protected by the attorney-client privilege held by the state and not the governor personally.  Here is how the court put it:  “Government lawyers, like the elected officials they assist, are public servants, and their client is the government, not officeholders in their official capacities.”  Therefore, the state of Oregon  has the authority to determine whether to waive the attorney client privilege (here the Freedom of Information law in Oregon would be broad enough to require disclosure).  However, with regard to the emails between the governor and his personal attorney, the privilege was not waived:  “Kitzhaber’s communication with his private attorneys should receive all the protections normally afforded by the attorney-client privilege.”

[1] In re Subpoena Duces Tecum, 112 F.2d 910 (8th Cir. 1997).  A more recent case dealing with this precise issue in the investigation of a former Governor of Oregon, see In re Grand Jury Subpoena JK-15-029, 828 F.3d 1083 (9^th Cir. 2016)(“We are thus unpersuaded by Kitzhaber’s arguments that his conversations with state attorneys regarding state conflict-of-interest laws are protected by a privilege that he may assert in his personal capacity.  Kitzhaber’s communications with his private attorneys should receive all the protections normally afforded by the attorney-client privilege.  But he may not himself invoke the privilege to protect his communications with attorneys for the state of Oregon.”).