Attorney-Client Privilege — Government Lawyers

In re County of Erie, 2007 U.S. App. LEXIS 26 (2d Cir. Jan. 3, 2007), the Second Circuit addressed whether "the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light." The Second Circuit determined it appropriate to employ a "predominant purpose" test to analyze and determine the scope of the privilege in this context, stressing that ‛[f]undamentally, legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.“ The Erie Court concluded that the privilege applied to emails discussing the compliance of the county's existing search policy with the Fourth Amendment, liability of the county and its officials stemming from the existing policy, alternative search policies, guidance for implementing alternative policies, and evaluations of the county's progress in implementing an alternative search policy. Last week, Magistrate Judge A. Kathleen Tomlinson applied this ruling in a First Amendment retaliation action against Nassau County and various officials, upholding the assertion of privilege, although directing production of certain documents in redacted form, because ‛the majority of these documents are communications generated for the purpose of obtaining or providing legal advice, and particularly the interpretation and application of legal principles to guide future conduct or to assess past conduct. As such, the majority of the documents at issue are privileged and are not required to be produced.“ Raba v. Suozzi, 2007 U.S. Dist. LEXIS 2099 (E.D.N.Y. Jan. 11, 2007).

Subsequent note: Marty Flumenbaum and Brad Karp of Paul Weiss have written up the County of Erie case in a January 24, 2007, New York Law Journal article that has been posted on the Paul Weiss website at http://www.paulweiss.com/files/upload/NYLJ1-24-07.pdf.

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