Estrada Memos Deserve More Privileges: The Debate over the Role and Obligations of Government Lawyers

"All lawyers, whether they are White House lawyers, or private lawyers, or Justice Department lawyers, are bound by the same ethical obligations."

An attorney made that comment in a high-profile case involving the role and obligations of a lawyer in keeping confidential legal advise given to a client. Was it made in the Arthur Andersen document-shredding case involving Nancy Temple, the Andersen lawyer who advised her client not to put something in writing? Was it made by Daniel Bryant, assistant attorney general for legislative affairs, in reference to Senator Patrick Leahy’s request for litigation memorandums written by appeals court nominee Miguel Estrada?

It was neither, although the statement could refer to both situations and many others of recent news. Actually, that quote is from testimony given in August, 1995 by Bernard Nussbaum, then-White House Counsel, before the Special Committee to Investigate Whitewater Development Corporation and Related Matters of the Senate Committee on Banking, Housing, and Urban Affairs.

It would be an understatement to say that during the Clinton Administration we heard a lot about professional ethics, privileges and confidentiality. But some of us seem to have learned nothing from it.

Some time has passed since Mr. Nussbaum resigned in 1994 and referred to himself as a "martyr to professional ethics." Yet current events prove that the legal system continues to struggle with defining the ethical standards for attorneys, particularly those applying to a government lawyer.

There is no clear case law, and certainly no Supreme Court case, addressing whether and to what extent a federal official has any attorney-client privilege that can be asserted. Perhaps that explains why Senate Judiciary Committee Chairman Patrick Leahy thought it was okay to request from the Justice Department the litigation memorandums written in the 1990s by appeals court nominee Miguel Estrada while he was working in the solicitor general’s office.

But the importance of protecting the confidentiality of communications between government lawyers and their superiors, as well as encouraging loyalty in the ranks, was not lost on Daniel Bryant. In his response to Mr. Leahy’s request, Mr. Bryant sent a two-page letter refusing to turn over documents in the Senate Judiciary Committee’s latest "fishing expedition." Mr. Bryant defended the Justice Department’s rejection, stating that if it turned over the papers, government lawyers would "be chilled . . . from providing the candid and independent analysis that is essential to high-level decisionmaking."

As in the energy task force contretemps, the Bush Administration has appropriately asserted its executive privilege in denying Congress access to the documents. (For an overview of executive privilege, read "Legislative vs. Executive Branch: The Clash Over Access to Information.")

What may have been overlooked so far in this ongoing political battle involving executive privilege are other privileges that apply to the relationship between government lawyers and their superiors. Unless the battle spills over into the courts, we are unlikely to hear more about these privileges.

The Model Rules of Professional Conduct, the Bible on ethical conduct of lawyers, does not address executive privilege, but does mandate that a lawyer protect the confidences of his or her clients through other privileges, including the attorney-client privilege and the work-product privilege.

The attorney-client privilege is the oldest recognized form of common law privilege. (8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961)). Historically, the privilege was viewed as protecting the bond of trust between attorney and client and upholding the honor of the lawyer. (Okay, some of you can stop laughing at the honor part.)

The preeminent evidence scholar and author of a treatise on evidence, Professor and Dean John Henry Wigmore of Northwestern University School of Law in Illinois defined the privilege in the early 1900s as one where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, which are at his insistence permanently protected from disclosure by himself or by the legal adviser, except if the protection is waived. (8 J. Wigmore, Evidence 2290 (McNaughton rev. 1961)).

The attorney-client privilege protects clients by shielding confidential communications from forced disclosure by their attorneys. Much like executive privilege, the purpose is to facilitate full and free disclosure to one’s counsel. A waiver of the privilege occurs when either client or attorney acting with client’s permission discloses a privileged communication to persons outside the privileged relationship.

So why didn’t the White House, through the Justice Department, invoke attorney-client privilege to avoid handing over Estrada’s memorandums? Probably for several reasons. First, Congress is generally not required to recognize either attorney-client privilege or attorney work-product privilege. If, however, a federal court hearing does transpire to enforce a Senate subpoena, most likely the court should and would enforce a common law claim to privilege if the court found the claim valid.

The Bush Administration may also have learned something from the Clinton Administration’s legal troubles. In two Whitewater-related cases, the Eighth and D.C. Circuits held that White House officials had no attorney-client privilege against a federal prosecutor’s grand jury subpoena. In In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8^th Cir.), cert. denied, 521 U.S. 1105 (1997)), the Office of Independent Counsel (OIC) issued a grand jury subpoena in its Whitewater investigation for the production of documents created during meetings between First Lady Hillary Clinton and White House counsel. The district court denied the motion to compel production of the documents. On appeal, the Eighth Circuit Court of Appeals reversed the decision in a two-to-one panel decision. In that decision, the court stated that although the attorney-client privilege would generally apply to government entities, "we believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a government attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials."

Not long thereafter, in In re Lindsey, 158 F.3d 1263 (D.C. Cir.), cert. denied, 525 U.S. 996 (1998), the OIC demanded that Bruce Lindsey, Deputy White House Counsel, testify before the grand jury investigating President Clinton's actions in the Monica Lewinsky scandal. Following the lead of the Eighth Circuit, the District of Columbia Circuit Court held that a Deputy White House Counsel could not assert attorney-client privilege to avoid disclosing advice he gave the President, noting that Lindsey's position as a government attorney "prevents him from withholding information about possible criminal misconduct from the grand jury." The Court did recognize the constitutionally based executive privilege.

Although those precedents appear to argue against invoking attorney-client privilege in the Estrada battle, each could arguably be overcome. First, as noted, a court, unlike Congress, would likely recognize the privilege. Second, prior case law from the Whitewater investigations, although having precedential value, is not on-point. The Estrada documents do not, to our knowledge, involve criminal proceedings, a fact clearly important to both courts in denying attorney-client privilege.

Attorney-client privilege’s own definition is the most likely reason its use is limited in the Estrada case. Privilege protects what the client confidentially communicated to the attorney to obtain legal advice or assistance. While Mr. Estrada’s memorandums may proffer policy or strategic advice, to which attorney-client privilege does not apply, it is more likely that these memorandums constitute either an opinion on law or assistance in some legal proceedings (such as whether the Solicitor General’s office should get involved in a case), both of which have been recognized as invoking privilege. (U.S. v. United States Shoe Mach. Corp., 89 F. Supp. 357, 358 (D. Mass. 1950)). Nonetheless, these memorandums most likely provide advice and counsel from attorney to client, less likely confidential communications from the client to the attorney.

There is, however, the alternative privilege of attorney work-product. Rule 26(b)(3) of the Federal Rules of Civil Procedure provides as follows: "[A] party may obtain discovery of documents and tangible things otherwise discoverable [under other provisions of Rule 26] and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."

The Supreme Court stated that "[a]t its core, the work-product privilege shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case." (U.S. v. Nobles, 422 U.S. 225, 238 (1975)). The Supreme Court has recognized that the work-product privilege applies to the work product of government attorneys. (FTC v. Grolier, Inc., 462 U.S. 19 (1983)).

The work-product doctrine generally protects only documents prepared by an attorney in anticipation of litigation. Unlike the attorney-client privilege, the immunity is qualified: it may be overcome by a showing that an opposing party has a substantial need for the materials and that the party would not be able to obtain the "substantial equivalent" without undue hardship. Mental impressions, conclusions, opinions, and legal theories of an attorney are, however, afforded special protection that is treated essentially as an absolute prohibition. (Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 734 (4^th Cir. 1974)).

The work-product privilege provides a high level of protection against disclosure of a lawyer's mental impressions or legal strategy. The President should not hesitate to assert this privilege if pushed by Senator Leahy’s committee. Congress should recognize that government lawyers need to have a confidential relationship with their client and that they should be able to provide decision-makers with frank and honest opinions without fear of subsequent public disclosure.

Perhaps some of this wrangling could have been avoided if a bill, introduced by none other than Senator Leahy, had made it into law. Just over three years ago, obviously in response to Monicagate, Senator Leahy sponsored a bill to clarify the applicable standards of professional conduct for attorneys for the Government. The term "attorney" was defined to include Justice Department lawyers and independent counsel. On the Senate floor, at introduction, Senator Leahy offered the following testimony in support for the bill: "I am not alone in my concerns about the tactics of these special prosecutors and, specifically, requiring a mother to testify about her daughter’s intimate relationships, requiring a bookstore to disclose all the books a person may have purchased, and breaching the longstanding understanding of the relationship of trust between the Secret Service and those it protects." (145 Cong Rec S 4033).

No government employee, including members of the Secret Service as well as Justice Department lawyers, should be ordered to breach longstanding relationships of trust, except perhaps in limited instances involving criminal activity. Senator Leahy was right in 1999 when he alone sponsored legislation to protect the integrity of such positions. Why doesn’t he respect them now?

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