Andy Thibault

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Cool Justice
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, too.

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."

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