No Secrets Allowed: Congress's Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings
34 Pages Posted: 8 Mar 2010 Last revised: 18 Mar 2010
Date Written: March 7, 2010
The attorney-client privilege is one of the oldest and most sacred privileges recognized by law. In 1577, almost two hundred years before the signing of the Declaration of Independence, the British Chancery Court acknowledged the privilege as a legal right under English common law in Berd v. Lovelace. Since the early 1880s, the decisions of American courts have solidified the attorney-client privilege as a substantive right. By contrast, the work-product protection is a relatively recent doctrine developed by the Supreme Court of the United States to shield from discovery documents created by counsel in anticipation of litigation and to provide strict protection to counsel’s mental impressions. Congress codified the common law protections for work product in Rule 26(b)(3) of the Federal Rules of Civil Procedure. Together, the attorney-client privilege and work-product protection help to ensure that parties receive adequate representation by counsel and a fair trial by facilitating the free flow of information between lawyer and client and by shielding the lawyer’s mental impressions from an adversary, respectively.
While courts have protected vigorously information falling within the attorney-client privilege or work-product protection, some congressional committees have refused to recognize the existence of a privilege or protection during several congressional investigations. Indeed, some members of Congress have gone so far as to argue that neither the attorney-client privilege nor the work-product protection applies to the investigative work of the legislative branch.
This article generally assesses the extent and availability of rights under the attorney-client privilege and work-product doctrine. The article first explores the history and development of those concepts in the courts and before Congress. It next discusses Congress’s authority to investigate and compel testimony and the scope of Congress’s contempt authority to punish those persons not compliant. The article also considers whether a basis exists for Congress to treat the two concepts differently. The attorney-client privilege is an established substantive right under common law, codified by Congress as recently as 2008 in the new Rule 502 of the Federal Rules of Evidence; therefore, nothing within Congress’s powers should allow it to abrogate this longstanding right. The work-product protection, on the other hand, is primarily a procedural right regarding the permissible scope of discovery during a judicial proceeding. While the interests underpinning the workproduct doctrine may not be apparent in a congressional investigation, this article argues that Congress nonetheless should respect the work-product protection in some instances, such as where simultaneous civil and criminal proceedings may be anticipated or ongoing.
To the extent Congress refuses to accept a witness’s assertion of the attorney-client privilege or work-product protection during an investigation, this article explores avenues for challenging such an adverse determination and for resisting the disclosure of the confidential information in the face of contempt. The article concludes with a discussion of some practical ways an individual or entity subject to a congressional investigation may limit the extent of any subsequent waiver and minimize the harm caused by the release of the information.
Keywords: Attorney-Client Privilege, Work-Product Protection, Work-Product Doctrine, Congress, Congressional Investigation, Contempt Proceeding, Implied Contempt, Contempt Statute, Waiver, Origin of the Attorney-Client Privilege, Common-Interest Rule, Common-Interest Privilege
JEL Classification: K00, K10, K14, K23, K30, K29, K39, K40, K41, K42, K49, N40, N41, L32, Z00, Z10
Suggested Citation: Suggested Citation