Government lawyers and the attorney-client privilege

In In re: A Witness Before the Special Grand Jury 2000-2, No. 01-3386 (7th Cir. April 23, 2002), the Seventh Circuit addressed, at the request of a state official, whether his government attorney could refuse to answer questions posed by a grand jury on the basis of attorney-client privilege. The court of appeals affirmed the district court's conclusion that a "government attorney-client privilege" did not apply in the context of a federal criminal investigation. Thus, the government attorney was required to comply with the subpoena and disclose conversations with the official.

The government lawyer in question was Roger Bickel, who was described in the opinion as "Chief Legal Counsel to the Secretary of State's office," and whose job duties were to provide "legal counsel and advice to [Secretary of State George] Ryan and other Secretary of State officials as they carried out their public duties." Federal prosecutors wanted to talk to Bickel in connection with their investigation of the "licenses for bribes" scandal. When Ryan objected to a voluntary meeting between Bickel and the prosecutors, they subpoenaed Bickel to appear before the grand jury and testify "about all conversations he had with Ryan in his official capacity as General Counsel." The prosecutors also moved to compel Bickel's testimony, and they obtained a letter from Jesse White, Ryan's successor in office, purporting to waive the attorney-client privilege for the office. The district court granted the motion to compel, resulting in an order that Ryan, as the client, was entitled to appeal.

The Seventh Circuit described the client as "the State of Illinois itself, represented through one of its agencies." Stating that the parties conceded the applicability of the attorney-client privilege to a governmental agency in civil and regulatory matters, the court went on to consider whether the privilege applied in a criminal investigation "when the United States seeks information from a government lawyer."

Although it acknowledged the need for uninhibited communications between government officials, the Seventh Circuit was persuaded by the government's argument that the privilege should not apply to protect communications from inquiry in the context of criminal proceedings. It pointed out, first, that while attorneys in the private sector were primarily concerned with protecting their clients from criminal charges, government lawyers "have a higher, competing duty to act in the public interest," and to take actions that would ensure the government client's compliance with the law. The court also reasoned that, since a state agency cannot be held criminally liable by either the state or the federal government, there is "no need to offer the attorney-client privilege as an incentive to increase compliance with the laws." The fact that individual employees may be found guilty of crimes did not require another conclusion, because, the court explained, the only privilege being addressed was that of the office itself, not of its employees. A public official may always choose to consult a private attorney, just as corporate officials must do, in order to receive advice that would be protected by the attorney-client privilege.

The district court also had concluded that Jesse White had the power to waive the office's attorney-client privilege as to conversations that took place before he took office. The Seventh Circuit did not address this issue in its opinion.