Inherent Power Reaches Government Counsel’s Monitoring Attorney-Client Privileged Communications between Plaintiffs and Their Counsel

District Judge Garr M. King was not convinced that Government lawyers, representing the defendant in Al Haramain Islamic Foundation, Inc. v. U.S. Dept’ of Treasury, 2008 U.S. Dist. LEXIS 45675 (D. Or. June 5, 2008), were monitoring the plaintiffs’ communications with their counsel, in this challenge to the designation of on of the plaintiffs as a terrorist organization. The Court held, however, that if the plaintiffs were in the future able to establish that factual predicate, inherent power sanctions could be imposed:

.... I agree with plaintiffs that I have authority to control the process of this litigation. Plaintiffs have cited no precedent for this proposition, but it is generally understood that "district courts are free to regulate the conduct of lawyers appearing before them." Paul E. Iacono Structural Eng'r, Inc. v. Humphrey, 722 F.2d 435, 439 (9th Cir. 1983) (considering disqualification of attorney appearing before it); see also Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S. Ct. 2123, 115 L. Ed. 2d 27, reh'g denied, 501 U.S. 1269, 112 S. Ct. 12, 115 L. Ed. 2d 1097 (1991) (describing inherent power of court, and particularly "the ability to fashion an appropriate sanction for conduct which abuses the judicial process"); Local Rule 83.7 (attorneys practicing in federal court must comply with Oregon Rules of Professional Conduct); Form 23 (Statement of Professionalism); and Oregon Rule of Professional Conduct 1.6 (confidentiality of information).

[G]overnment counsel should not have access to attorney-client privileged communications or use such communications in this litigation. Plaintiffs' counsel have an obligation to protect the confidential communications of their clients, and the evidentiary privileges protecting disclosure of attorney-client communications and attorney work product ensure plaintiffs have meaningful access to the courts. See Al Odah v. United States, 346 F. Supp. 2d 1, 10-11 (D.D.C. 2004) (describing privileges as necessary to obtain effective assistance of counsel). Government counsel have assured plaintiffs and me that they "understand and take seriously their ethical obligations." Ds.' Opp'n. at 22. Government counsel have also informed me that they believe they have acted with integrity and would be willing to provide any assurance necessary in camera and ex parte. Although I do not think such efforts are warranted at this time, I may consider it in the future.

If plaintiffs have information that would indicate government counsel have access to confidential attorney-client communications or work product in this case, they may move to renew their motion. Such a motion should specify the relief requested, and cite any relevant authority supporting their request. If plaintiffs are unable to divulge the information on the record, without further revealing attorney-client communications, plaintiffs may seek an order permitting such declarations to be filed in camera and ex parte.

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