Attorney-Client Privilege: Government Official Has No Personal Privilege with Government Lawyer Consulted on Ethics Issues (Government Holds Privilege) — Perhaps Different If Government Lawyer Representing Official Personally

In re Grand Jury Subpoena, 2016 U.S. App. LEXIS 12860 (9th Cir. July 13, 2016):

This case arises in the midst of an investigation by the federal government into activities of the former Governor of Oregon, John Kitzhaber. A grand jury's subpoena seeks a broad range of information [*3]  from the State of Oregon, much of which would be available to the general public under Oregon's public records laws. But a wide net is susceptible to snags.

For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. According to Kitzhaber, he was unaware of the archiving of these emails, which include many private details unrelated to his official duties regarding him and his family, as well as private communications with his personal attorneys and with attorneys for the State of Oregon. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad, as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in particular that the attorney-client privilege protects his communication with attorneys for the State of Oregon regarding issues concerning possible conflicts of interest and ethics violations. The government disclaims any interest in Kitzhaber's communications with his personal attorneys but argues it is otherwise entitled to everything it has requested.

The public's interest in accountability and transparency is [*4]  particularly strong when it comes to the investigation of elected officials, and grand juries are appropriately accorded a wide degree of latitude. But we agree with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment's protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case -- which is not even minimally tailored to the government's investigatory goals -- is unreasonable and invalid. We do not agree, however, that Kitzhaber may assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon's attorneys. Whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity.

I

John Kitzhaber served as Governor of Oregon from 1995 until 2003, and again from 2011 until 2015. During this second period in office, Kitzhaber declined to use an official email address provided by the State of Oregon. Instead, he established an account with the commercial email service Gmail, which [*5]  he used for official business. He requested that the Oregon Department of Administrative Services (DAS) archive on the state's servers emails sent to or from this "official" Gmail address, and DAS complied.

In addition to his official Gmail account, Kitzhaber had a personal Gmail account and another personal account hosted at att.net. He checked all of these accounts from the same computer. According to a member of the Governor's senior staff, Kitzhaber commonly used his personal addresses "to communicate with senior staff for both personal and state business."

In February of 2015, Kitzhaber resigned from office, surrounded by controversy over whether he had used his position to benefit his fiancée, Cylvia Hayes. See Lee van der Voo and Kirk Johnson, Governor Leaves Office in Oregon, Besieged in Crisis, N.Y. Times, Feb. 14, 2015, at A1, http://www.nytimes.com/2015/02/14/us/kitzhaber-resigns-as-governor-of-oregon.html . Shortly before Kitzhaber's resignation, a federal grand jury issued a subpoena to DAS as part of an investigation into the Governor's actions. The subpoena asked DAS to provide "all information, records, and documents" going back to January 1, 2009, "relating to" Kitzhaber, Hayes, and several businesses and other entities. The subpoena also sought [*6]  "any and all email communications from or to, or regarding" seventeen individuals, including Kitzhaber and Hayes.

After he left office, Kitzhaber intervened in the grand jury proceedings, filing a motion to quash the subpoena in the United States District Court for the District of Oregon. According to Kitzhaber, shortly before resigning he discovered that DAS had been archiving emails to and from his personal email accounts on state servers. Kitzhaber asserted that DAS was not authorized to archive his emails from his personal addresses, which he says contain a great deal of private communication, including privileged communication with his personal attorneys. He challenged the subpoena on the grounds that it was unreasonably broad; a violation of his Fourth Amendment rights; and a violation of attorney-client privilege.

The district court ruled that Kitzhaber's communication with his private attorneys over his personal email addresses was protected by the attorney-client privilege and should not be disclosed to the grand jury. The court directed the government to create a "taint/filter team" to segregate the protected emails from the remaining content generated in response to the subpoena and prevent [*7]  the protected content from reaching the jury. It ruled against Kitzhaber on every other issue. The court held that third parties to a subpoena, like Kitzhaber here, may not challenge the burden of production required to comply with the subpoena. It also held that any potential Fourth Amendment violation could be raised only in a suppression motion filed if Kitzhaber ends up being indicted and brought to trial. And it held that the attorney-client privilege did not apply to Kitzhaber's communication with government attorneys. The court therefore declined to quash the subpoena. Kitzhaber timely appealed.

II

Kitzhaber argues that the district court should have quashed the subpoena in its entirety. We agree.

***

III

Kitzhaber also challenges the subpoena as violating attorney-client privilege. He claims the privilege protects both his communications with his personal attorneys and specific communications with government attorneys regarding potential conflicts of interest.

Kitzhaber is correct, and the government does not dispute, that his communication with privately-retained attorneys is protected by the attorney-client privilege and should not be turned over to the grand jury. See, e.g., Horn, 976 F.2d at 1318-19. But, for several reasons, we conclude that Kitzhaber may not invoke the attorney-client privilege for his communications with government attorneys regarding conflicts of interests or ethics violations. Whatever privilege such communications may implicate is held by the State of Oregon, not Kitzhaber personally.

First, Kitzhaber maintains that the privilege over the conflict of interest and ethical obligations conversations should attach to him personally, because any liability resulting from breaking those obligations would be personal. The potential for personal liability, Kitzhaber maintains, should have indicated to the government attorneys he consulted that he was seeking [*19]  personal legal advice. Also, because of the potential for personal liability, Kitzhaber argues, he himself had a reasonable expectation that his conversation with government attorneys would be protected by the attorney-client privilege.

Much uncertainty surrounds the reach of the attorney-client privilege in the context of investigations into public officials. See, e.g., In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005); In re Witness Before the Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). That uncertainty, however, has concerned cases in which an attorney-client privilege with a government lawyer was invoked by a governmental entity, or by an individual in his or her official capacity. Where courts have acknowledged the attorney-client privilege to apply to conversations between government officials and government lawyers, they have construed the privilege to mean that "the Government may invoke the attorney-client privilege," not that officeholders in their personal capacity may invoke the privilege. United States v. Jicarilla Apache Nation, 564 U.S. 162, 170 (2011) (emphasis added); see also In re Grand Jury Investigation, 399 F.3d at 534-35 & n.3. In no instance, as far as we are aware, has a former officeholder successfully claimed that a government staff lawyer discussing a matter relating to official business was representing the officeholder personally [*20]  during a conversation had while both were government employees.6

6   A different scenario arises when a government attorney is provided by the government specifically for the purpose of representing a public employee sued in her personal capacity. See, e.g., Restatement (Third) of the Law Governing Lawyers § 74 cmt. d (Am. Law Inst. 2000). In that situation, where "government attorneys stand in the shoes of private counsel," In re Lindsey, 158 F.3d at 1269, whether and when the government employee may invoke the privilege in their individual capacity may require a different analysis. We express no view of that scenario here.

Moreover, a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. For example, when a judge considers whether a statute or code of conduct requires that she recuse from a case because of personal financial interests or the involvement of a relative or friend, what is at stake is precisely how she is to carry out judicial obligations. Similarly, an executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.

Consideration [*21]  of the possible personal sanctions for non-compliance with such legal obligations is likely to be an integral part of such discussions; sanctions are imposed precisely to induce compliance. But that does not mean that during those conversations, the government lawyers are acting as the personal attorneys for the officeholders. Government lawyers, like the elected officials they assist, are public servants, and their client is the government, not officeholders in their personal capacities. "[G]overnment lawyers have responsibilities and obligations different from those facing members of the private bar. While the latter are appropriately concerned first and foremost with protecting their clients . . . government lawyers have a higher, competing duty to act in the public interest." In re Special Grand Jury, 288 F.3d at 293. The public interest may well include advising government officials about their ethical duties; that the public's interest partially overlaps with those officials' private interests does not convert government attorneys into those officials' private attorneys.

Kitzhaber maintains, however, that officeholders will "be less likely to engage in full and frank discussions with agency counsel about the facts underlying a potential [*22]  conflict" if the privilege does not attach to officeholders in their personal capacity. Perhaps so. But the State of Oregon has an exceedingly strong interest in keeping conversations concerning conflicts of interests between its lawyers and other officials confidential to ensure candor, and therefore in invoking the attorney-client privilege as to such conversations.7

7   In a letter submitted after oral argument in this case, the State informed us that it has asserted and continues to assert the attorney-client privilege in the U.S. Attorney's investigation. Where government officials assert the attorney-client privilege during criminal investigations into government misconduct, the scope of the privilege is not clearly established. See In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005); In re Witness Before the Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). We express no opinion on the proper scope of Oregon's asserted privilege in this decision, as the State of Oregon is not a party before us and Kitzhaber may not invoke the privilege in his personal capacity.

Further, Kitzhaber could have hired his own lawyer for consultation about his conflict-of-interest concerns, and indeed did hire his own lawyer to represent him in an ethics inquiry. Generally, [*23]  "[a]n official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney." In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 921. As to any communications with a private lawyer, Kitzhaber must "receive[] the full protection of the attorney-client and work product privileges in his dealings with personal counsel." In re Lindsey, 158 F.3d at 1278.

We are thus unpersuaded by Kitzhaber's arguments that his conversations with state attorneys regarding state conflict-of-interest laws are protected by a privilege that he may assert in his personal capacity. Kitzhaber's communication with his private attorneys should receive all the protections normally afforded by the attorney-client privilege. But he may not himself invoke the privilege to protect his communication with attorneys for the State of Oregon.

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