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The attorney-client privilege “is one of the oldest recognized privileges for confidential communications.” 1The privilege is designed to encourage “full and frank communications between attorneys and their clients . . . .” 2 In Upjohn v. United States, 3the Supreme Court held that the attorney-client privilege encompasses communications between corporate employees (including lower-echelon employees) and corporate counsel when the communication is for the purpose of enabling counsel to provide legal advice to the corporation. 4Nevertheless, “[t]here is surprisingly little case law on whether a government agency may also be a client for purposes of this privilege . . . .” 5Recent decisions provide much-needed guidance on the applicability of the attorney-client privilege to government officials and entities. In Leslie v. Ohio Finance Agency, 6the Ohio Supreme Court recently held that the attorney-client privilege encompasses confidential communications between state officials and state agency in-house counsel. The court acknowledged that “the government attorney-client privilege has been subject to some criticism[,]” but followed “ the weight of authority” that applies the attorney-client privilege to confidential communications between government counsel and governmental employees. The fact that the attorney in Lesliewas the state agency’s “in-house” counsel rather than a member of the state attorney general’s office did not negate the privilege. The court found that application of the attorney-client privilege to confidential communications between government counsel and a governmental employee “furthers the laudatory objectives of the privilege: complete and candid communications between attorneys and clients.” 7 Who Is the ‘Client’? In a valuable opinion, the U.S. Court of Appeals for the Sixth Circuit in < href=”http://www.ca6.uscourts.gov/opinions.pdf/05a0393p-06.pdf” target=”_blank”  Ross v. City of Memphis 8recently held that municipals entities are “clients” protected by the attorney-client privilege. Of course, a municipality can communicate with municipal counsel only through its officials and employees. Who, then, is the “client,” the official (or employee) or the municipality? The court in Rossheld that there is presumption that the municipality is the client. The plaintiff, Herlancer Ross, an African-American female police offer, filed racial discrimination claims under, inter alia, �1983 against the city of Memphis, Walter Crews, who was the city’s former police director, and Alfred Gray, a police deputy. Mr. Crews was sued in his individual capacity and asserted the defense of qualified immunity based on advice of counsel he had received from the city attorney. Mr. Crews invoked the attorney-client privilege and declined to reveal the contents of this advice. The federal magistrate judge ordered Mr. Crews to reveal the conversations because he waived the privilege by raising advice of counsel as his qualified immunity defense. The city objected to this order on the ground that its former employee, Mr. Crews, could not implicitly waive the city’s attorney-client privilege. The Magistrate Judge rejected the city’s argument. The Magistrate Judge reasoned that the importance of counsel’s advice to Mr. Crew’s defense outweighed the city’s interest in maintaining the privilege The city took an interlocutory appeal from the order of the Magistrate Judge. The Sixth Circuit found that it had jurisdiction over this interlocutory appeal under the “collateral order doctrine,” because the appeal raised an important issue that was not effectively reviewable on appeal from a final judgment � by then the confidential communications may have been disclosed by Mr. Crews. Proposed Federal Rule of Evidence 503 In other words, unless the circuit court reversed the order of the Magistrate Judge, the city would be unable to “prevent [Mr.] Crews from disclosing allegedly privileged information.” 9On the merits, the Sixth Circuit reversed. The circuit court held that a municipal entity may assert the attorney-client privilege in civil litigation. The circuit court relied upon decisional law, 10Proposed Federal Rule of Evidence 503, which defines “client” to include public officers and public entities, and the Restatement (Third) of the Law Governing Lawyers, which states that the attorney-client privilege extends to government organizations. The circuit court found that application of the attorney-client privilege to governmental entities “helps insure that conversations between municipal officials and attorneys will be honest and complete.” 11 The circuit court in Rossalso held that the municipal officer’s assertions of the advice of counsel defense did not operate to waive the municipality’s privilege. The circuit court found that the Magistrate Judge should not have balanced the competing interests of the importance of the privileged communications to Mr. Crew’s defense against the city’s interest in maintaining the privilege The circuit court reasoned that application of the attorney-client privilege based upon a balancing of competing interests renders the privilege substantially uncertain. 12 The circuit court said that its analysis assumed “that the City does have a privilege as to the relevant communications between its attorneys and [Mr.] Crews.” 13This assumption “is in all likelihood correct” because when municipal officials have conversations with municipal counsel, generally, the municipality, not the individual officer, is the client. 14However, this does not mean that the individual officer can never be the client of the municipal attorney. “To do so, however, the individual officer must [clearly] indicate to the lawyer that he seeks advice in his individual capacity . . . . Requiring an individual officer to clearly announce a desire for individual advice is critical; it allows the attorney to judge whether it would be appropriate to advise the individual given the attorney’s obligations concerning representation of the corporation.” 15The circuit court remanded the case to the district court to develop the record on this point. Under Ross,when a municipal officer communicates with a municipal attorney there is a rebuttable assumption that the municipality is the client. Further, Rossclearly holds that the officer’s reliance upon advice of counsel cannot operate to waive the municipality’s attorney-client privilege. 16 What if it turns out in Rossthat former Police Director Crews was the city attorney’s client? In that case, it is clear that Mr. Crews’ assertion of the advice of counsel defense would operate as an implicit waiver of Mr. Crews’ attorney-client privilege. 17This is because the attorney-client “‘privilege cannot be used as a shield and a sword[,]‘” meaning that “the privilege may implicitly be waived when defendant asserts a claim that in fairness requires examination of protected communications. Mr. Crews certainly could not assert that he relied on privileged communications and then hide behind the privilege if he ever had it.” 18 Split in Circuits There is a split in the circuits over whether a governmental entity or official can assert the attorney-client privilege in grand jury proceedings. 19The U.S. Court of Appeals for the Second Circuit in In re Grand Jury Investigation v. Doe 20recently held that the attorney-client privilege protects confidential communications between government counsel and government officials from disclosure in the grand jury. The court specifically found that the attorney-client privilege protected communications between the state governor and the governor’s chief legal counsel from disclosure in a grand jury investigation. The Second Circuit relied in part on the same secondary sources relied upon by the Sixth Circuit in Ross.Proposed Evidence Rule 503(a)(1) includes public officers and public entities within the definition of “client” for the purpose of the attorney-client privilege. “While Proposed Rule 503 was not adopted by Congress, courts and commentators have treated it as a source of general guidance regarding federal common law principals.” 21Section 74 of the Restatement (Third) of the Law Governing Lawyers provides that the “attorney-client privilege extends to a communication of a governmental organization as it would to a private organization.” The commentary to that section of the Restatement states that “[t]he privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture.” These secondary sources show that “serious legal thinkers, applying ‘reason and experience,’ have considered the privileges protections applicable in the government context.” 22 Furthermore, federal court decisional law, “while not extensively addressing the issue, generally assumes the existence of a governmental attorney-client privilege in civil suits between government agencies and private litigants.” 23While the U.S. Courts of Appeal for the Seventh, Eighth and District of Columbia circuits have “broadly questioned” whether the attorney-client privilege should apply with full force in the context of governmental clients and the grand jury, the Second Circuit held that the privilege is fully applicable The Second Circuit reasoned that governmental officials who are charged with enforcing the law and who may face criminal charges for doing so should be “encouraged to seek out and receive fully informed legal advice. Culture of Consultation Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable and even indispensable part of conducting public business. Abrogating the privilege undermines that culture and thereby impairs the public interest.” 24 Swidler & Berlin v. United States, Upjohn Co. v. United States, Upjohn Upjohn In re Witness before Special Grand Jury, RossRoss, Ross Swindler & Berlin v. Unites States, Upjohn v. United States, Ross, Ross Ross, United States v. Bilzerian, Martin A. Schwartz is a law professor at Touro College � Jacob D. Fuchsberg Law Center in Huntington, N.Y. Mr. Schwartz also is the co-chair of the Practising Law Institute annual program in �1983 litigation.Deborah Hill, a student at Touro Law Center, assisted in the preparation of this article. Endnotes: 1. Swidler & Berlin v. United States, 524 US 399, 403 (1998). 2. Id at 403 (quoting Upjohn Co. v. United States, 449 US 383, 389 (1981)). 3. 449 US 383 (1981). 4. The Court in Upjohn also stressed that: 1) the employees were aware that the purpose of their communications was for counsel to provide legal advice to the corporation; 2) the communications were made at the request of corporate superiors; 3) the communications concerned matters within the scope of the employees’ corporate duties; and 4) the communications were treated as confidential within the corporation. “Upjohn did not say that all four factors had to appear, but the first and fourth are essential for all application of the privilege.” C.B. Mueller and L.C. Kirkpatrick, Evidence: Practice Under the Rules �5.16 pp.473-74 (2d edition 1999) 5. In re Witness before Special Grand Jury, 288 F3d 289, 291 (7th Cir. 2002). 6. 105 Ohio St. 3d 261, 824 N.E. 2d 990 (2005). 7. 105 Ohio St. 3d at 270, 824 N.E. 2d at 999 8. 423 F3d 596 (6th Cir. 2005). 9. Id at 599. 10. See cases cited in Ross, 423 F3d at 601 11. Ross, 423 F3d at 602 12. The court in Ross cited to Swindler & Berlin v. Unites States, 524 US 399 (1998) and Upjohn v. United States, 449 US 383 (1981). 13. Ross, 423 F3d at 605. 14. Id. 15. Id. 16. Although not discussed by the court in Ross it is possible that government counsel may purport to represent both the governmental entity and the client. In this situation counsel must ensure that the entity and officer do not have a conflict of interest. See M. Schwartz, Section 1983 Litigation: Claims and Defenses, �7.22 (4th edition 2005). 17. See M. Schwartz, Section 1983 Litigation: Federal Evidence �7.7 (3d ed. 1999). 18. Ross, 923 F3d at 604-605 (citation omitted) (quoting United States v. Bilzerian, 926 F2d 1285, 1292 (2d Cir. 1991)). 19. Id at 602-603 (citing competing authorities). 20. 399 F3d 527 (2d Cir. 527). 21. Id. at 532 22. Id. 23. Id. 24. Id.at 534. Martin A. Schwartz is a law professor at Touro College – Jacob D. Fuchsberg Law Center in Huntington, N.Y. Mr. Schwartz also is the co-chair of the Practising Law Institute annual program in �1983 litigation. Deborah Hill, a student at Touro Law Center, assisted in the preparation of this article.

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