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Tuesday’s endorsement of the attorney-client privilege for government officials by the 2nd U.S. Circuit Court of Appeals may be a strong candidate for U.S. Supreme Court review. By agreeing that legal counsel for former Connecticut Governor John Rowland could assert the privilege applied to conversations about a federal investigation into quid pro quos for gifts the governor received, the panel admittedly staked out a position it said was in conflict with one other federal appeals court and “in sharp tension” with decisions in two other circuits. Unlike other circuits, including the D.C. Circuit when it ordered Deputy White House Counsel Bruce Lindsey to testify about former President Bill Clinton’s relationship with Monica Lewinsky, the 2nd Circuit in United States v. John Doe, 04-2287-cv, said that, if anything, “the traditional rationale for the privilege applies with special force in the government context.” “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,” Chief Judge John M. Walker Jr. said. “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.” Connecticut District Court 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 the resignation of Rowland and his entry of a guilty plea on Dec. 23 to one count of conspiracy to steal honest service. The 2nd Circuit reversed Chatigny after hearing an expedited appeal in August, finding that George would not have to testify. A panel of Judges Walker, Dennis Jacobs and Pierre Leval released a 20-page opinion on Tuesday explaining their rationale. ‘GROUNDED’ OPINION Robert K. Vischer, who teaches legal ethics as an assistant professor of law at St John’s University School of Law, called the decision “a very thoughtful, very realistic discussion of the relationships between government officials and their lawyers,” one that was “a little more grounded in the real world” than the D.C. Circuit’s opinion in Lindsey. In Lindsey, he said, the appellate court said that “we shouldn’t worry about the chilling effect on government officials because they don’t have the belief that they would discuss criminal conduct with their attorneys.” “That’s a little na�ve, because often it is not at all clear whether some conduct will be criminal,” he said. Vischer cited the “minutiae” of regulations governing the fund-raising calls of Vice President Al Gore from the White House as one example of the “expanding range of criminal liability for public officials.” Chatigny 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 they work for directly and the public. Chatigny had written that “unlike a private lawyer’s duty of loyalty to an individual client, a government lawyer’s duty does not lie solely with his or her client agency,” but also with the public. In the circuit’s ruling, Walker began by noting 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.” And “serious legal thinkers,” he said, “have considered the privilege’s protections applicable in the government context,” while the 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 argued that recent case law in other circuits recognized the existence of the privilege in the government context but considered it weaker than the privilege in the private setting. The prosecution 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.” Using those decisions, he said, the prosecutors argued that the reasons the rationales historically offered for the privilege “do not apply with the same force” in the Rowland case because the discussions concerned an investigation into potential criminal conduct. The U.S. attorney, he 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.” Walker said the people of Connecticut have indicated that the latter interest is more important, because Connecticut law specifically upholds the governmental privilege “even in the face of a criminal investigation.” “We do not suggest, of course, that federal courts, charged with formulating federal common law, must necessarily 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.” Vischer said the circuit was clearly inviting review of its decision. The circuit “acknowledges it is creating conflict with other circuits and it also acknowledges that uniformity and predictability are essential,” he said. The court is “signalling that this is a conflict that needs to be resolved,” he added.

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