The Government Lawyer and Confidentiality

1. The Government Lawyer and Confidentiality Prof. Phillip M. Sparkes Local Government Law Center NKU-Chase College of Law

2. An “Ordinary Agent” • Has a duty “not to use or communicate confidential information of the principal for the agent’s own purposes or those of a third party.” Restatement (Third) of Agency § 8.05 • Duty does not end when the agency terminates

3. An Ordinary Agent? • Duty of confidentiality is not absolute • An agent may reveal otherwise privileged information to protect a superior interest of the agent or a third party

4. A Superior Interest? • “I have a higher loyalty than my loyalty necessary to my past work. That's a loyalty to the truth." - Scott McClellan, speaking on NBC’s “Today” show

5. Not Any Ordinary Agent • “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.” • Daugherty v. Runner

6. Not Any Ordinary Attorney (?) • “Government lawyers have responsibilities and obligations different from those facing members of the private bar…. [They] have a higher, competing duty to act in the public interest.” • In re Witness before Special Grand Jury

7. Two Approaches • Agency approach • Public interest approach

8. The “client” • The public • The government as a whole • The branch of government in which the lawyer is employed • The particular agency or department in which the lawyer works • The responsible officers who make decisions for the agency.

9. The “client” • The public • The government as a whole • The branch of government in which the lawyer is employed • The particular agency or department in which the lawyer works • The responsible officers who make decisions for the agency.

10. Agency Approach • Resembles the client-centered approach to lawyers in private practice • Approach does not disregard the public interest, but it does not elevate it above the core duties of loyalty • Benefits • easier applicability of the ethics codes • clearer lines of authority • increased democratic accountability

11. Public interest approach • Places relatively greater weight on the duties of the lawyer to the courts and to innocent third parties • Makes serving the public good the attorney’s primary duty • Benefits • consistent with most government lawyers’ recognition that they owe a higher duty to “the people” • provides constraints that may prevent abuses of the lawyer’s position

12. Duty of Loyalty • Every agent owes the principal a duty of loyalty • Includes duty not to use or disclose confidential information • Attorney’s duty has three aspects • Duty to preserve client confidences • Attorney-client privilege • “Work product” privilege

13. Duty of Confidentiality • Confidentiality is an ethical rule • Rules of Professional Conduct 1.6(a) • Differs from attorney-client and work product privileges • They apply in judicial proceedings • Rule 1.6 applies not only to matters communicated in confidence, but to all information relating to the representation whatever its source

14. Applicability • Rule 1.6 applies to lawyers in government • But … • “When the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved.” KRPC 1.13, cmt. 7 • “Although in some circumstances the client may be a specific agency, it is generally the government as a whole.”

15. A Less Than Perfect Fit • Rules of Professional Conduct not necessarily a reliable and effective guide for the public lawyer • Premised on the private model of one lawyer and one client • Tends to emphasize the role of lawyer as advocate and to downplay the role of lawyer as counselor

16. Two Questions • Do the Rules, in contrast to the Restatement, embrace the public interest approach? • Under the Rules, is the duty of confidentiality owed by the government lawyer more modest in scope or even different in kind?

17. Two Challenges • The nature of the work performed • The identity of the client

18. Nature of the Work • Non-traditional legal work • Holding office • Making policy • Giving political advice • Non-adversarial functions • Misapprehension that like attorney-client and work product privileges, duty of confidentiality applies only in litigation context

19. Identity of the client • The public • The government as a whole • Ky. Rules • The branch of government in which the lawyer is employed • The particular agency or department in which the lawyer works • Restatement • The responsible officers who make decisions for the agency

20. Attorney-Client Privilege • An evidentiary rule • Kentucky Rules of Evidence, Rule 503 • No tradition of a government attorney-client privilege. • Courts and practitioners commonly assumed that the attorney-client privilege should apply to government clients by analogy to corporations and other organizations • Statutorily recognized in Kentucky when KRE 503 incorporated into Open Records Act by KRS 61.878(1)(l).

21. In Federal Courts • Congress rejected Proposed Federal Rule of Evidence 503 and left the development of the privilege to case law • Federal courts came to regard the proposed rule as a restatement of federal common law. • General assumption among writers and courts has been that the attorney-client privilege protects communications between government agencies and legal counsel. • Restatement also adopts this view (§ 74)

22. In Sixth Circuit • Long assumed that governments could hold the privilege • In 2005 holds “a government entity can assert attorney-client privilege in the civil context.” • Ross v. City of Memphis • Accepted proposed FRE 503 as federal common law and accepted Restatement view

23. Outside the Civil Context • Sixth Circuit noted recently emerged among the circuits as to the availability of the privilege in grand jury proceedings. • In re Grand Jury Investigation (2d Cir. 2005)held that the Connecticut governor’s office could assert attorney-client privilege in grand jury proceedings. • In re Witness Before Special Grand Jury 2000-2 (7th Cir. 2002), In re Grand Jury Subpoena Duces Tecum (8th Cir. 1997), and In re Lindsey (D.C. Cir. 1998) to the contrary • Sixth Circuit took no position

24. Waiver • The privilege belongs to the client • When the client is not a natural person, who holds the privilege? • The difficulty, as with the duty of confidentiality, is in identifying the client • In Ross, the privilege is the city’s to assert (i.e., government as a whole), not the officer’s or the agency’s

25. 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 advisor • (8)except the protection be waived.

26. Advice on Policy • In re County of Erie, (2d Cir. 2007) • Citing Ross, the Second Circuit agreed that, at least in civil litigation between a government agency and private litigants, the government’s claim to the protections of the attorney-client privilege is on par with the claim of an individual or a corporate entity.

27. Advice on Policy • Parallel issue arises in the context of communications to and from in-house lawyers who also serve as corporate business executives. • Second Circuit decided that the appropriate standard was whether the predominant purpose was to render or solicit legal advice. • “General policy or political advice” remains unprotected

28. Attorney Work Product • A rule of civil procedure (Ky. R.Civ. Proc. 26.02) (governs discovery) • Like attorney-client privilege, applies in judicial proceedings • Not every document prepared by an attorney is attorney work product • A qualified privilege against disclosure unless the “documents and tangible things” disclose “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

29. Limits of Privilege • Transit Authority of River City v. Vinson, 703 S.W.2d 482 (Ky. Ct. App. 1985) • “TARC seeks to stretch the work product protection of CR 26.02(3)(a) far beyond its limits.” • Work product which is primarily factual in nature is not absolutely immune from discovery • Reports and photographs, although prepared in anticipation of litigation, were discoverable

30. Work Product and Open Records • Attorney work product is also excluded from the application of the Open Records Act under KRS 61.878(1)(l) • Agencies claim the exemption with some regularity • As in TARC, the claim is occasionally broader than is the scope of the privilege • Behavior is consistent with the agency model • Supreme Court says Open Records Act “exhibits a general bias favoring disclosure.” • Statute is consistent with public interest model

31. Caveat • Occasional tendency to see government attorney as analogous to the ordinary attorney with an organizational client • Government attorney must be vigilant against taking the parallel to the corporate attorney too far.

32. Conclusion • Prudent government attorneys, conscious of the fact that federal courts do and Kentucky courts may hold them to an even higher standard, will be mindful of the duty to act in the public interest reflected in rules and statutes.