Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys
38 Pages Posted: 17 Dec 2008
Date Written: January 1, 2007
Courts have divided over whether the attorney-client privilege operates as it does for private individuals as it does when the client is a government entity. The traditional instrumental rationale for the privilege - i.e., that the privilege is necessary to facilitate full disclosure of information from the client to the attorney - has been called into question by empirical research even in the context of the relationship between private individuals and their attorneys. When the client is an entity, such as a corporation, the instrumental need for this incentive is even more questionable. And when the client is not only an entity, but also a government body, bestowing a privilege upon that entity seems particularly perverse: the privilege could then be used to withhold information from the very citizens that the entity exists to represent.
To bolster the argument against an absolute privilege in the context of government entity clients, my article summarizes the results of thirty detailed interviews I conducted with attorneys who represent government entities. Twenty-five attorneys represented state government entities; five represented municipalities. In the aggregate, the attorneys I spoke with suggested that they did not view their role as analogous to the role of an attorney in the private sector and indicated that they gave substantial weight to the public interests at stake in the representation. This was the case regardless whether the ethical rules in the attorney's state mandated an absolute privilege for government entities or indicated that some qualification to the privilege was appropriate. The article concludes, therefore, that a qualified rather than an absolute privilege is appropriate in the context of representation of a government entity client.
Keywords: attorney-client privilege, privilege, government, ethics, confidential, confidentiality, empirical, interview
Suggested Citation: Suggested Citation