The Attorney-Client Privilege
Last week a federal appeals
court ruled that White House lawyers must hand over notes of their
conversations with first lady Hillary Rodham Clinton to Whitewater Independent
Counsel Kenneth Starr. The White House lawyers assert these conversations were
confidential, protected by the attorney-client privilege. They will take their
claim to the Supreme Court. What is the attorney-client privilege? Is the White
House in the right?
Like
conversations between doctor and patient or priest and penitent,
confidential communications between a client and his lawyer are legally
protected . A client can refuse to disclose the substance of those
communications, and only in rare exceptions will the lawyer be forced to
divulge the information in question. The communication should, however: 1)
always have been confidential and 2) relate to legal advice (a client cannot
deliver documents to a lawyer simply to elude a legal obligation to turn them
over). An attorney's "work product"--his memoranda, interview notes, and other
trial preparations--are similarly protected. Federal and state statutes codify
this privilege. Lawyers who betray it risk disbarment and can be sued for
malpractice.
According to legal historians, a version of the
attorney-client privilege first appeared in Roman courts. It was revived by the
English in the 16 th century and then absorbed into American common
law. The rationale is that it is in society's interest for people to seek
advice from lawyers in order to make sense of complicated regulations and
laws. Clients will only receive useful advice if they speak candidly with their
lawyers without having to fear that their conversations could later incriminate
them.
The scope of the
attorney-client privilege remains broad. Courts in the last 30 years have
extended the privilege to corporations and even affirmed its
applicability to dead clients .
There are exceptions:
Clients can waive the
privilege.
It does not apply when legal
advice is used to plan crimes. Conversations between a Mafia boss and his
lawyer arranging the murder of a disloyal underboss, for instance, are not
protected. But the distinction is not always so clear. There is a fine line
between abetting a client's fraudulent testimony, which is not protected, and
planning a legitimate defense.
When a
lawyer becomes a defendant, the privilege evaporates. This applies to
malpractice suits filed against lawyers, and in cases where the lawyer is
implicated in a client's crime (this was the exemption under which White House
counsel John Dean testified against Richard Nixon).
The notes the Clinton White House wants to
protect were taken by two White House lawyers at meetings on July 11, 1995, and
Jan. 26, 1996, also attended by Hillary Clinton and her private attorney, David
Kendall. The first meeting concerned the first lady's activities immediately
following associate White House counsel Vincent Foster's suicide ; the
second had to do with her testimony before a grand jury investigating the
billing records from her Arkansas law firm . The records had been missing
for two years before inexplicably reappearing in the first family's private
quarters.
These
notes were subpoenaed by special prosecutor Kenneth Starr on June 21,
1996. In response, White House lawyers immediately invoked the attorney-client
privilege, a claim upheld by a trial court.
Last week, however, a federal appeals court in St. Louis
reversed the trial court's decision . It held that the lawyer-client
privilege does not protect conversations between government officials and
government lawyers during the course of a federal prosecutor's investigation.
Government lawyers are obliged to enforce laws, not to protect an official. If
an official desires a confidential discussion about a potentially criminal act,
he should hire a private attorney.
White
House counsel argues that: 1) Courts have consistently recognized that the
attorney-client privilege applies to conversations between government
officials and government lawyers . 2) Even Starr concedes that Hillary
Clinton should be treated as a government official. 3) The appeals court's
decision has nasty ramifications for the entire government. From now on,
officials will be reluctant to discuss tricky legal issues with government
attorneys, fearing that their conversations will come back to haunt them, and
will instead secure private counsel .
The White House need not turn over any
documents until the Supreme Court adjudicates the case. The ruling, which is
expected in June, will turn on the court's interpretation of the White House
counsel's mandate . No legal precedent presages the decision. Some experts
on the attorney-client privilege predict that the Supreme Court will uphold it
where the White House has an official interest (the meeting related to the
Foster suicide) and reject it in private matters (the billing records).
White House officials say
their rigorous assertion of the attorney-client privilege is driven by a desire
to prevent future incursions on the privacy of conversations between the first
family and its lawyers. They say it does not amount to an admission that the
notes contain damning content.
