Federal Decision on Citizens and the Attorney-Client Privilege

Music to my ears in an order yesterday from the federal court for the Eastern District of Wisconsin, in a case involving an unsuccessful attempt by certain Wisconsin state legislators to claim the attorney-client privilege with respect to documents relating to redistricting. What resonates so nicely is the way the court considered state citizens to be the client of the private lawyer. Since they would, of course, be the client of a government lawyer as well, this decision would apply even more forcefully, but without the talk of "shamefulness," to documents discussed with government lawyers.

The Court well appreciates that in this instance there is an extremely fine line between legal advice offered by counsel to the Legislature (its client) on the one hand, and political or strategic advice offered on the other. But that line is so thinly drawn purely as a result of the Legislature’s own doing. Without a doubt, the Legislature made a conscious choice to involve private lawyers in what gives every appearance of an attempt—albeit poorly disguised—to cloak the private machinations of Wisconsin’s Republican legislators in the shroud of attorney-client privilege. What could have—indeed should have—been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny.

Thus, simply put, a requirement that the documents be disclosed is the only fair and just result of the Legislature’s decision to mix politics and the law. As noted above, political and strategic advice is not entitled to protection by the attorney-client privilege. Evans, 231 F.R.D. at 312. Merely hiding political decisions behind the closed doors (and email servers) of a law firm does not make the advice offered any less political, strategic, or policy related.

In concluding that the documents at issue here are not privileged from disclosure, the Court does not mean to suggest that the attorney-client privilege is unavailable to government entities. It is simply not available in this instance because of the Legislature’s peculiar (and frankly unfortunate) decision in this case to so blur the lines between political, strategic, and legal advice as to make those lines practically disappear. In so doing, the movants—who, in fact, seem to act on behalf of only a portion of the Legislature despite their assertion that they act on behalf of the full Legislature (and, by extension, all of Wisconsin’s citizens)—have tried to hide the redistricting process from the very people whose rights are at stake in that process. And those very people, Wisconsin’s citizens, have paid through their tax dollars for the efforts ostensibly taken on their behalf. The Court finds it highly doubtful that any lawyer’s client would delight in having the documents and communications for which they have paid kept beyond their reach. Thus, in these particular circumstances, it would be inappropriate to shield from disclosure the communications provided to the Court for in camera review.

Robert Wechsler
Director of Research-Retired, City Ethics

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