making local government more ethical

The Government Attorney-Client Privilege in a Local Government Investigatory Context

Is the attorney-client privilege, in the context of an inspector general's (or, for that a matter, an ethics commission's) investigation of misconduct in city government, "sacred," as Chicago's corporation counsel insists? Is it even appropriate?

This is a long post that will be fascinating to many, will raise hackles in some, but will be of less interest to others. If you want to cut to the chase, read the summary paragraph at the end and move on.

A year ago, I wrote a blog post about an Illinois circuit court decision in the case of Ferguson v. Georges, where it was decided that Chicago's corporation counsel could redact documents subpoenaed by the city's inspector general on the basis of attorney-client privilege. I gave many reasons why, on the basis of law and public policy, this decision was wrong.

The treatment of attorney-client privilege in a government investigatory context is relevant to ethics commission investigations as well, because ECs too usually have subpoena power. In fact, in some jurisdictions, it is the IG's office that performs ethics investigations.

Chicago's IG appealed the decision, and oral argument was held on March 24, 2011. Taking into account what was said by the only judge who asked questions of the IG's counsel, it doesn't look good for the use of subpoenas in local government investigations of high-level officials in Illinois.

Background: The IG's Report
This is Chicago, where the Shakman Decree, seeking to control patronage through the federal courts, is still active (see my blog posts on Shakman-related matters). In March 2009, the federal district court overseeing the Shakman Decree directed Chicago's IG to submit "a report to the Court summarizing (i) his investigations of political discrimination in connection with any aspect of employment with the City; (ii) any recommendations for corrective or disciplinary action he has made; and (iii) his views with regard to the City’s response to those recommendations."

In that report, filed on January 29, 2010, the IG reported that "the City has begun routinely invoking the attorney-client privilege to preclude the IGO from obtaining key documents in investigations, including in employment investigations. For example, the City asserted the privilege and withheld documents in an investigation relating to the hiring of a former high-level City employee through a sole source contract. In fact, the City now routinely adopts the position that it need not provide the IGO with information that it characterizes as 'privileged.' If the conduct and decisions of high-level City employees are cloaked from the IGO under the auspices of a wholesale invocation of privilege, it is difficult to conceive how substantial compliance with the Shakman decree could ever be obtained."

In Ferguson v. Georges, the corporation counsel asserts that she is required to take the attorney-client privilege into account in dealing with the IG's request, or she could be in violation of the Rules of Professional Conduct. But the IG report points out that,
"The importance of this matter to the City appears not to be borne merely out of a cautious impulse by the City to steer clear of any possible breach of the attorney-client privilege. To the contrary, the Corporation Counsel has publicly asserted in a hearing before the City Council that even if the Chancery Court were to issue a ruling favorable to the IG on the privilege issue, she would seek to override an adverse ruling by seeking an amendment to the Municipal Code that adopts her position."

"My Privilege Is Sacred"
In fact, according to the report, in a hearing before a city council committee, the corporation counsel said, "If a court held that I would have to submit these documents to the IG because of statutes within the Municipal Code, I’d probably ask you all to amend the Municipal Code to say that my privilege is sacred."

Note those last four words, "my privilege is sacred." First of all, it is not the corporation counsel's privilege; it is her client's privilege. Second, no privilege is sacred. As one of the appellate court judges told the assistant corporation counsel arguing the case, "a privilege is not a right." And even rights are not sacred; they are balanced against other rights, and obligations.

These four words show how emotional the issue of attorney-client privilege is to lawyers, how prejudiced they are in its favor, and how blind it makes them to public policy considerations that are undermined by this privilege. This is why judges, who are also lawyers, have generally discriminated in favor of the privilege, even when other policies and even laws militate against raising this privilege or act effectively as waivers by the client. Remember that the client here is the public and its representatives, that is, the very people who gave the IG the power to investigate city officials, who gave themselves an obligation to cooperate, and who made no exceptions for attorney-client privilege.

Reasons Why Chicago Documents Should Not Be Privileged
In two appellate briefs (attached; see below) and in the oral argument, the IG set out four reasons why the requested documents should not be protected by the attorney-client privilege. I add to the IG's arguments.
    1. Every official owes an express statutory duty of full cooperation to the IG. Because they have this duty, the IG argues, officials have no expectation of confidentiality with respect to matters that may be investigated by the IG. I would argue that, because of this duty, they have an obligation to waive whatever privilege they may have.

    2. The IG and the city share a common interest in the goal of uncovering and eliminating government misconduct. Because of this common interest, the documents are effectively staying within the same political entity, and they are being used for a shared purpose. Therefore, the purpose of the privilege, to protect confidential information, does not even exist. It is not even confidential information.

    3. Obstructing an investigation by insisting that documents are privileged poses a risk of undermining public trust in the integrity of the government and its commitment to serving the public interest. I would translate this into the statement that a mayor, or other official, who would not waive the attorney-client privilege will look like he is hiding valuable information from the office responsible for investigating government misconduct.

    4. The Rules of Professional Conduct recognize that attorney-client privilege does not apply to government attorneys the same way it does to private attorneys. A comment to Rule 1.13 reads, "[W]hen the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved."
A Privilege Based on Membership, Not Function
I go further than this. I believe that government attorneys are government first, and attorneys second. Let me give you an example that makes this statement more clear. I am not a member of any bar association. I administer a public campaign financing program in New Haven. When the board members have questions about the relevant ordinance, or other laws and policy matters, they ask me. I deal with legal issues all the time. If I were a member of a bar, the Chicago corporation counsel and, I think, the majority of government attorneys, would say that what the board members said or wrote to me would be privileged, and no one would have an obligation to waive this privilege, even if an inspector general or ethics commission subpoenaed the documents and the officials had an obligation to cooperate with them. However, because I am not a member of a bar, what the board members said or wrote to me would not be privileged at all.

The privilege is all or nothing, based not on my role as a public servant providing information about laws, but on whether or not I am a member of a bar association. This privilege applies to attorneys even when they are not giving legal advice, but not to non-attorneys when they are providing information about laws.

It is absurd to base a privilege on membership rather than function. Such a position allows a government official to place her personal interest in protecting herself from an investigation ahead of the public interest in discovering misconduct by government officials. To do this, all she has to do is consult with the corporation counsel's office.

The Obligation to Be Transparent
The briefs talk on and on about laws and rules and decisions, but there is very little case law relevant to this situation, and the reason is that attorney-client privilege is rarely questioned. It is, in fact, treated as sacred, even in a governmental context.

By focusing on laws and rules and decisions, both parties and the judges ignore one very important issue:  do government officials have an obligation to waive the attorney-client privilege? Not only do Chicago officials have an express obligation to cooperate. But, like most officials nationwide, they are also subject to a Freedom of Information Act that creates an obligation to be transparent. Ordinary clients have neither obligation. This difference in obligations alone is enough to to make a government official's attorney-client privilege a pale thing compared to an ordinary client's.

The FOI Act sets forth exceptions to this obligation to be transparent, but none of the exceptions invokes the attorney-client privilege. There is an exception for litigation, but it is not because litigation involves lawyers. Litigation is excepted to prevent the other side from discovering government attorneys' litigation-oriented work product. It is a practical exception, not one that recognizes one profession's privileges as a more important public policy than transparency.

Is It Really Worth It?
Think how it looks to a citizen of Chicago. For decades, your city government has had the worst patronage problems in the country, including extensive fraud and waste, and you're lucky enough to have had an IG's office created to investigate it and a federal district court to keep the pressure on. And then the corporation counsel, hired by and accountable to the mayor, raises this special privilege on behalf of the mayor whose administration is being investigated. And the privilege doesn't even seem relevant to government, because a corporation counsel's client is the public, after all, not any individual. And this apparently irrelevant privilege, invoked apparently by someone who is being investigated (no one seems to have had the courage to say he refuses to waive the privilege), is used to keep the IG's hands off numerous documents and parts of documents relevant to its investigation. Then a judge, who is also a lawyer, puts this privilege ahead of the public interest in honest government and transparency. And then more judges, also lawyers, do the same thing . . .

Can this possibly do anything but undermine the public's trust in our government and our legal system? Could this possibly be worth whatever value the attorney-client privilege has in this context?

An Issue That Can Make a Seasoned Judge Naïve
I'd like to end this post with another unbelievable statement that shows how hard it is for a lawyer to get her mind around the possibility that the attorney-client privilege, in this context, is poor public policy. This time it is something one of the appellate judges said during oral argument. Here's the lead-in from counsel to the IG:
    If the corporation counsel, the mayor's lawyer, is able to obstruct ... investigations by asserting the authority of the attorney-client privilege, what, Your Honor, would the consequence be? Every time a sensitive investigation went forward and people were concerned about the investigative capacity of the inspector general, wouldn't they rush over and talk to the corporation counsel ahead of time, thereby to insulate from his investigative capacity the documents and the conversations they wanted to preserve as safe? And wouldn't the public see through that ruse ...
And here is the judge's response:
    I think it's unrealistic to suggest that someone would suddenly give information that would be protected, for the sole purpose of ... that makes no sense to me. ... The one portion of your remark, that this would suggest that people would suddenly go to the corporation counsel's office to give them information that would be detrimental to their own person...
Remember, this is Chicago. What but something as "sacred" as the attorney-client privilege could lead a seasoned judge to see as nonsense the possibility, even the likelihood, that Chicago officials would use the attorney-client privilege to protect themselves from an investigation into their conduct?

Pulling It All Together
The attorney-client privilege is not sacred. In fact, in a government context, where the attorney is neither private nor independent, where the client is not private, where both attorney and client have an obligation to cooperate with the IG as well as a fiduciary duty to make government ethical, and where there are clearly stated rules concerning the transparency of government documents, that provide no exception for officials who are members of a bar, where there is arguably no confidential information at all (at least in this context), what role should this privilege play at all?

Click here to read other blog posts on attorney-client privilege.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548

Visitor (not verified) says:

I presently have an appeal to the Illinois Attorney General's Public Access Counselor regarding a denial of a copy of the Village Attorney's analysis of its gambling ordinances in the town I live. Here is a portion of my response:

The following material is taken from a "Manual on Illinois Sunshine Laws regarding the Open Meetings and Freedom of Information Acts", prepared by the Illinois Municipal League (copy found at http://www.palospark.org/pdf/Sunshine%20Laws%20-%20IML.pdf)
Pages 15-16: Pending or Possible Litigation
'... Although the attorney-client privilege is very important it should not be used to evade the spirit and intent of the Act. For example, the House debates on House Bill 411 made it clear that the General Assembly did not intend to allow public bodies to consult in private with their attorneys on "routine things" such as "interpretation of statutes, legal policies or options generally available and so forth," and the Attorney General has indicated in his explanation of the amendments that this includes "general legal advice." ... ' (emphasis added)

While I believe the above material dealt with invocation of attorney-client privilege in regard to closed session meetings between a public body and its attorney, in my opinion the same principles should also apply to invocation of the same or similar attorney-client privileges for the Freedom of Information Act.

It would seem to me that the analysis of ....... gambling ordinances that was prepared by the Village Attorney for the benefit of the Village Manager and Village Council would fall into the category either of "interpretation of statutes" or "general legal advice". In the present case the Village Attorney is simply interpreting .....'s gambling ordinances.

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