Can We Talk? Privileged Communications, Official Communications, and the Government Attorney

1. Can We Talk?Privileged Communications, Official Communications, and the Government Attorney Phillip M. Sparkes Director, Local Government Law Center and Assistant Professor of Law Salmon P. Chase College of Law Northern Kentucky University

3. Agent and Principal • It is a fundamental principle of Kentucky law that an attorney is an agent for his client. • Nat. Res. & Env. Prot. Cabinet v. Pinnacle Coal Corporation, 729 S.W.2d 438, 439 (Ky. 1987) • Agency relationship between attorney and client is “peculiar” • Clark v. Burden, 917 S.W.2d 574, 576 (Ky. 1996)

4. Agency defined • Agency is the fiduciary relationship that arises when one person (a “principal”) manifests assent to another person (an “agent”) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act. • Restatement (Third) of Agency, § 1.01

5. “Fiduciary relationship” • Agent owes principal duties of: • Loyalty • Restatement (3d) §§ 8.02 – 8.06 • “Foremost among the fiduciary duties of an agent” • Includes the duty not to use or disclose confidential information (§ 8.05) • Performance • Restatement (3d) §§ 8.07 – 8.12

6. Duty of agents generally • Joint adventurers … owe to one another … the duty of the finest loyalty…. Not honesty alone, but the punctilio of an honor the most sensitive is then the standard of behavior. • Meinhard v. Salmon, 240 NY 458 (1928)

7. Duty of attorney • Since the relationship of attorney-client is one fiduciary in nature, the attorney has the duty to exercise in all his relationships with this client-principal the most scrupulous honor, good faith and fidelity to his client's interest. • Clark v. Burden, 917 S.W.2d 574, 575 (Ky. 1996) citing Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky. App. 1978)

8. Higher standard for attorneys • The relationship of attorney-client is generally that of principal and agent; however, the attorney is vested with powers superior to those of any ordinary agent because of the attorney's quasi-judicial status as an officer of the court; thus the attorney is responsible for the administration of justice in the public interest, a higher duty than any ordinary agent owes his principal. • Clark v. Burden, 917 S.W.2d 574, 575 (Ky. 1996) citing Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky. App. 1978)

9. Confidentiality • Three aspects: • the ethical duty to preserve client confidences • the attorney-client privilege • work product doctrine • Attorneys have an ethical obligation to maintain client confidences even if they are not privileged.

10. Rules • SCR 3.130(1.6)(a): A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). • Older than and differs somewhat from current MRPC Rule 1.6

11. The Problem • Rules of Professional Conduct modeled on private practice • one lawyer/one client • plays up lawyer/advocate; plays down lawyer/counselor • Assumption is that the government lawyer represents his or her client in much the same way a private lawyer represents the individual client

12. The Question • Is the government lawyer’s duty of confidentiality different in scope or different in kind? • To what lawyers does the duty apply? • To whom is the duty owed? • What is the nature of the work being performed?

13. Lawyers covered • Rules apply to attorneys in government • Rules apply to attorneys performing non-legal functions • Rules apply to attorneys performing non-adversarial legal functions

14. Disclosure of confidences • Client consents • Implied authority to carry out representation • Prevent commission of certain criminal acts (Rule 1.6(b)(1)) • Establish claim or defense (Rule 1.6(b)(2)) • Comply with law or court order (Rule 1.6(b)(3)) • Inadvertent waiver

15. Who can consent? • Commentators’ view • (1) the responsible officers who make decisions for the agency • (2) the particular agency or department in which the lawyer works • (3) the branch of government in which the lawyer is employed • (4) the government as a whole • (5) the public

16. Outside help? • Restatement • Clark v. Burden • Sarbanes-Oxley

17. Outside help? • Restatement view • Client (principal) is the person 1) on whose behalf and 2) subject to whose control the attorney is acting

18. Outside help? • Clark v. Burden • Attorney has quasi-judicial status as an officer of the court • Attorney is responsible for the administration of justice in the public interest

19. Outside help? • Sarbanes-Oxley Act (15 U.S.C. §§ 7201 et seq.) • Prompted changes to MRPC 1.6 and 1.13 • Rule 1.6 now permits disclosure to comply with law and to prevent substantial injury to financial interests or property damage • Rule 1.13 requires a lawyer to report improper conduct “up the chain” and permits disclosure to prevent injury to organization

20. Attorney-client privilege • Evidentiary rule • No tradition of governmental attorney-client privilege • KRE 503 • Broad government attorney-client privilege • “Client means a person including a public officer … or other organization or entity, either public or private….”

21. Attorney-client privilege • Evidentiary rule • Privilege in federal court is the product of case law, not rule • Restatement (Third) of Law Governing Lawyers §74 recognizes a government attorney-client privilege • Sixth Circuit, like other courts, assumed without deciding that government could assert the privilege

22. Ross v. City of Memphis • Government entity can assert attorney-client privilege in the civil context • 423 F.3d 596, 601 (6th Cir. 2005) • “The risk of extensive civil liability is particularly acute for municipalities, which do not enjoy sovereign immunity. Thus, in the civil context, government entities are well-served by the privilege, which allows them to investigate potential wrongdoing more fully and, equally important, pursue remedial options.”

23. Criminal context • Outside civil context, courts are split • 7th, 8th, D.C. circuits: No • 2nd Circuit: Yes • State ex rel. Thomas v. Schneider, 212 Ariz. 292, 130 P.3d 991 (Ariz. App. 2006): Yes

24. Arguments against privilege • Public interest argument • Government attorney has a fundamentally different relationship with the client than does a private attorney • Attorney’s loyalty to the organization must yield to the loyalty to the public interest • Private counsel argument • Any public official concerned about illegality can always consult with a private attorney

25. Waiver • Only the client can waive the privilege • In Ross, privilege belonged to the city, not its former official • Waiver can be express or implied by conduct that extinguishes one of the necessary elements of the privilege

26. Elements of Privilege • (1) Where legal advice of any kind is sought • (2) from a professional legal adviser in his capacity as such, • (3) the communications relating to that purpose • (4) made in confidence • (5) by the client • (6) are at his instance permanently protected • (7) from disclosure by himself or by the legal adviser • (8) unless the protection is waived. • Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998)

27. Legal advice • In re County of Erie, 473 F.3d 413 (2d Cir. 2007) • Matter of first impression “whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official where those communication asses the legality of policy and propose alternative policies in that light.” • McDermott v. Suozzi, 2007 WL 128817 (E.D.N.Y. 2007) • Modesto Irrigation Dist. v. Gutierrez, 2007 WL 763370 (E.D.Cal. 2007)

28. Caution • Application of governmental privilege tends to follow application of corporate privilege, but not always • Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998) • AG tends to follow corporation analogy in Open Records Decisions

29. Open Records • KRS 61.878(1)(l): All public records the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly • Allows withholding of materials covered by KRE 503 and CR 26.02(3) • KRS 61.878(1)(j): Preliminary recommendations in which opinions are expressed or policies formulated or recommended

30. Open Records • 06-ORD-125 • AG criticizes policy of blanket exclusion on the basis of attorney-client privilege • 06-ORD-096 • County attorney’s broad claim of privilege rejected • 06-ORD-018 • City improperly withheld records claimed to be privileged

31. Open Records • 05-ORD-177 • Extended discussion • 04-ORD-187 • Extended discussion • Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001) • Judicial Watch, Inc. v. Department of Justice, 432 F.3d 366 (D.C. Cir. 2005) • FOIA segregation requirement does not apply to attorney work product

32. Garcetti v. Ceballos • “The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.”

33. Garcetti v. Ceballos • “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

34. Majority Opinion • Case is about affording government employers sufficient discretion to manage their operations. • Employer is free to control speech that the employer itself commissioned or created • “Official communications have official consequences.” • need for substantive consistency and clarity • ensure that communications are accurate, reflect sound judgment, and promote the employer’s mission.

35. Not to worry • Public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” • The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.

36. Not to worry • Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. • These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions

37. Dissents • Speech in the course of official duties gets First Amendment protection “Sometimes,” not “Never” • “The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.” • A public employee can wear a citizen’s hat when speaking on subjects closely tied to the employee’s own job

38. Grievance trap • Public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” • If employers create a mechanism for airing internal dissent and require employees to use it, employees risk that the courts will treat that speech as in the course of official duties and thus unprotected. • Givhan v. Western Line Consol. Sch. Dist., 439 U. S. 410

39. The duty of loyalty trap • Agent has duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him • Restatement of Agency (2d) § 381 • Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with the agency. • Restatement of Agency (2d) § 387

40. Duty of loyalty trap • We thus have no occasion to articulate a comprehensive framework for defining the scope of an duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. The proper inquiry is a practical one. • Springer v. City of Atlanta, 2006 WL 22461888 (N.D.Ga. Aug 4, 2006).

41. “Additional safeguards” • Majority: Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment.

42. Breyer’s response • Ceballos complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v. Maryland • Two factors together justify First Amendment review: • First, the speech at issue is professional speech of a lawyer • Second, the Constitution itself imposes speech obligations upon the government’s professional employee.

43. Rules of conduct • The rules of the law of legal ethics as constituted for the private lawyer are not reliable and effective guides for the public lawyer • Ultimate source of the rules of legal ethics is the lawyer-client relationship • Premised on one lawyer, one client • Lawyer’s relationship to the government client is not so simple

44. Rules of conduct • Much of the work of the government lawyer is non-adversarial, but the canons downplay the role of lawyer as counselor • Government lawyer is responsible for the positions the agency takes in a way that private lawyers are not • Government lawyer is both counsel for the government and a government official

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