Columns & Stories]
Invasion Of The Privilege Snatchers
By ANDY THIBAULT, Columnist
Law Tribune Newspapers
March 21, 2005
Golly gee: State officials - like corporations - are people under the law,
Who woulda thunk it, especially during these times of never-ending federal
corruption cases in Connecticut? It seemed as if the feds were completely
taking over the state - because they could.
For those who have not noticed, Connecticut is on the front lines in a
national assault on attorney-client privilege. Say what you will about
state or city officials in terms of their humanity and integrity. When the
federal prosecutors come knocking, they really don't need any extra
firepower - especially the kind that diminishes our rapidly-diminishing
rights including privilege.
It took the Second Circuit U.S. Court of Appeals to spell this out in a
20-page opinion released last month. The language of the decision - by
Chief Judge John Walker Jr. and judges Dennis Jacobs and Pierre Leval - is
striking for its clarity in staking out the rights of clients and lawyers,
as well as the public interest. For this reason, and because the opinion
did not generate that much attention, I cite it at length.
"We cannot accept the Government's [prosecutions'] unequivocal
assumption as to where the public interest lies," the judges wrote.
"To be sure, it is in the public interest for the grand jury to
collect all the relevant evidence it can. However, it is also in the
public interest for high state officials to receive and act upon the best
possible legal advice. Indeed, the people of Connecticut have deemed the
latter interest more important than the former … "
They pointed to a Connecticut law [CSG 52-146r(b)] that asserts privilege
- even for government lawyers, in both civil and criminal proceedings.
"We cite the Connecticut statute," the Second Circuit judges
continued, "to point out that the public interest is not nearly as
obvious as the Government suggests. One could as easily conclude, with the
Connecticut legislature, that the protections afforded by the privilege
ultimately promote the public interest, even when they might impede the
search for truth in a particular criminal investigation.
"We believe 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 criminal advice.
Upholding the privilege furthers a culture in which consultation with
government lawyers is accepted as normal, desirable, and even
indispensable part of conducting public business. Abrogating the privilege
undermines that culture and thereby impairs the public interest."
The players in this case included former Gov. John Rowland and one of his
legal counsels, Ann George. George had been subpoenaed to testify by a
federal grand jury. A Connecticut District Court judge had ordered George
to testify. Ross Garber, Rowland's last legal counsel before he resigned
as governor, appealed.
The Second Circuit had issued a summary order sparing George from
testifying last August. Because the Second Circuit opinion conflicts with
rulings by the D.C. and Seventh Circuits, an eventual U.S. Supreme Court
ruling is considered likely.
"In the end," the Second Circuit judges wrote, "we do not
view the question before us as whether to extend the `privilege' to the
government context, and our decision today does no such thing. Rather, we
have simply refused to countenance its abrogation in circumstances to
which its venerable and worthy purposes fully pertain."