51 Pages Posted: 13 Nov 2007
The long recognized common-law privilege afforded to certain conversations between attorneys and their clients has been the subject of troubling opinions when the lawyer and client are high ranking government officials. In a series of opinions from the 7th, 8th and D.C. Circuit Courts of Appeals, the courts refused to recognize the existence of the attorney-client privilege for the government actors under the circumstances surrounding the cases. However, recent opinions from the 2nd Circuit state that these other courts were simply wrong, setting the stage perhaps, for the U.S. Supreme Court to resolve the issue. Whether this privilege is equally applicable in both the public and private sectors remains controversial at best, and it has been used as political leverage in attempts to uncover what might otherwise be confidential information, leaving government lawyers and their clients with a level of unreasonable uncertainty regarding the sanctity and security of their professional relationship. Meanwhile, the American Bar Association and states across the country have advanced rules of professional conduct for attorneys that include as a key foundational concept the necessity of preserving the confidentiality of information communicated from a client to his/her attorney. The article concludes with a series of recommendations aimed at clarifying the privilege in the public sector context.
Keywords: government ethics, attorney client privilege
JEL Classification: K19
Suggested Citation: Suggested Citation
Salkin, Patricia and Phillips, Allyson, Eliminating Political Maneuvering: A Light in the Tunnel for the Government Attorney-Client Privilege. Indiana Law Review, Vol. 39, 2006. Available at SSRN: https://ssrn.com/abstract=1029421