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The 2d U.S. Circuit Court of Appeals’ ruling that legal counsel for former Connecticut Governor John Rowland could assert attorney-client privilege for conversations about a federal investigation into quid pro quos for gifts the governor received, puts the court in conflict with other circuit courts. United States v. John Doe, No. 04-2287-cv. Unlike the D.C. Circuit, which had ordered former Deputy White House Counsel Bruce Lindsey to testify about former President Bill Clinton’s relationship with Monica Lewinsky, the 2d Circuit asserted that, if anything, “the traditional rationale for the privilege applies with special force in the government context.” Writing on behalf of the panel, 2d Circuit Chief Judge John M. Walker Jr. said, “It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice.” Connecticut U.S. District Judge Robert N. Chatigny had ordered Anne C. George, former chief legal counsel to the Office of the Governor, to answer questions before a grand jury about her conversations with Rowland and his staff concerning the federal probe. The scandal ended last year with Rowland’s resignation and guilty plea to one count of conspiracy to steal honest service. The 2d Circuit reversed Chatigny, finding that George would not have to testify. Chatigny had approached the Rowland case, which was captioned “John Doe” because of the pending grand jury investigation, on the theory that a government lawyer has two clients, the officeholder he or she works for and the public. The 2d Circuit said that “courts have by reason and experience concluded that a consistent application of the privilege over time is necessary to promote the rule of law by encouraging consultation with lawyers, and ensuring that lawyers, once consulted, are able to render to their clients fully informed legal advice.” Case law “generally assumes the existence of a governmental attorney-client privilege in civil suits between government agencies and private litigants.” The U.S. Attorney’s Office for the District of Connecticut had argued that recent case law recognized the existence of an attorney-client privilege in the government context but considered it weaker than the privilege in the private setting. It cited three cases: the 7th Circuit’s ruling in In re A Witness Before the Special Grand Jury, 288 F.3d 289 (2002); the Lewinsky ruling in the 1998 case of In re Lindsey, 158 F.3d 1263; and In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). All three decisions, Walker said, “broadly questioned the relevance of the traditional rationale supporting the privilege to the government context.” The rationales did not apply in the Rowland case because the discussions concerned an investigation into potential criminal conduct. The U.S. attorney, Walker said, contended that the “privilege should not be used as a shield to permit George, a government attorney, to withhold client confidences, when revealing them would be in the public interest.” But Walker said, “We cannot accept the Government’s unequivocal assumption as to where the public interest lies” because, while it is certainly in the public interest for a grand jury to collect all the facts, “it is also in the public interest for high state officials to receive and act upon the best possible legal advice.” According to Walker, Connecticut law specifically upholds the governmental privilege “even in the face of a criminal investigation . . . .We do not suggest . . . that federal courts . . . must . . . defer to state statutes in determining whether the public welfare weighs in favor of recognizing or dissolving the attorney-client privilege,” he said. “But we cite the Connecticut statute to point out that the public interest is not nearly as obvious as the Government suggests.”

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