May It Please the Court® A Weblog of Legal News & Observations
Quote of the Day - I was not lying. I said things that later on seemed to be untrue. - Richard Nixon, discussing Watergate

For Those Who Don't Remember Watergate. And A Reminder To Those That Do.

Seeking advice from a lawyer in this example is a bit like going to see the doctor. You want to explain all of your symptoms to the doctor so you get the right treatment, and the problem you brought to the doctor is treated properly.

So it goes with a lawyer. To get the right advice, people who consult us are protected by the attorney-client privilege. Anything said to a lawyer is protected from disclosure, with certain exceptions like fraud and crime.

If, however, you're a public official representing your constituents, should you be able to consult a government attorney and invoke that privilege to protect your communications?

The Second Circuit Court of Appeal thinks so. Ultimately, it looks like the Supreme Court will get the last word, if the Department of Justice appeals. Existing law recognizes that the government can invoke the privilege, but the question is not fully resolved.

The 7th and the 8th Circuits have held that government cannot invoke the privilege, and when a grand jury undertakes a criminal investigation of a government employee, conversations with a government lawyer are not protected. It's a matter of public, not private, interest that controls.

Seems logical. Do we want our public officials hiding behind the cloak of an attorney? Do we want open meetings?

Or, on the other hand, do we want our public officials to have the best advice and full disclosure of all the facts to treat the symptoms correctly?

In Watergate, Congress grilled John Dean, President Nixon's attorney. Did he honor the privilege (5-minute video of testimony before Congress)? Hear him tell it.

Seems to me the Courts are asking the wrong question. Who is the government attorney responsible to? Who's the client here? The citizens or the government official?

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Posted by J. Craig Williams on Wednesday, March 02, 2005


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