In re: Allen v.

Filed: April 2, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-1464(L)

(CA-94-952)

In Re: Barbara H. Allen,

Appellant,

Better Government Bureau, Inc., etc.,

Plaintiff - Appellee.

O R D E R

The Court amends its opinion filed February 6, 1997, as

follows:

On page 4, section 2, line 1 -- the firm for attorney Paul

Cleek is corrected to read "MCQUEEN, HARMON, POTTER & CLEEK."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: BARBARA H. ALLEN,

Appellant,

BETTER GOVERNMENT BUREAU,

INCORPORATED, an Ohio Corporation,

Plaintiff-Appellee,

v.

DARRELL V. MCGRAW, JR., Attorney

General, State of West Virginia,

Personally and in his Official

Capacity; BETTER GOVERNMENT

BUREAU OFFICE OF THE ATTORNEY

No. 96-1464

GENERAL STATE OF WEST VIRGINIA, A

Body Politic, A Corporate

Instrumentality of Government with

Limited Agency and Quasi-

Sovereign Capacity; KEN HECHLER,

Secretary of State, in his Official

Capacity,

Defendants,

v.

DONNA WILLIS,

Party in Interest.

BETTER GOVERNMENT BUREAU,

INCORPORATED, an Ohio Corporation,

Plaintiff-Appellee,

v.

DARRELL V. MCGRAW, JR., Attorney

General, State of West Virginia,

Personally and in his Official

Capacity,

Defendant-Appellant,

and

BETTER GOVERNMENT BUREAU OFFICE

No. 96-1601

OF THE ATTORNEY GENERAL STATE OF

WEST VIRGINIA, A Body Politic, A

Corporate Instrumentality of

Government with Limited Agency

and Quasi-Sovereign Capacity; KEN

HECHLER, Secretary of State, in his

Official Capacity,

Defendants,

v.

BARBARA H. ALLEN; DONNA WILLIS,

Parties in Interest.

2

BETTER GOVERNMENT BUREAU,

INCORPORATED, an Ohio Corporation,

Plaintiff-Appellee,

v.

DARRELL V. MCGRAW, JR., Attorney

General, State of West Virginia,

Personally and in his Official

Capacity,

Defendant-Appellant,

and

BETTER GOVERNMENT BUREAU OFFICE

No. 96-1652

OF THE ATTORNEY GENERAL STATE OF

WEST VIRGINIA, A Body Politic, A

Corporate Instrumentality of

Government with Limited Agency

and Quasi-Sovereign Capacity; KEN

HECHLER, Secretary of State, in his

Official Capacity,

Defendants,

v.

BARBARA H. ALLEN; DONNA WILLIS,

Parties in Interest.

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CA-94-952)

Argued: July 9, 1996

Decided: February 6, 1997

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

3

No. 96-1652 affirmed and No. 96-1464 and No. 96-1601 reversed and

remanded by published opinion. Judge Motz wrote the majority opin-

ion, in which Judge Michael concurred. Judge Niemeyer wrote an

opinion concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: David Paul Cleek, MCQUEEN, HARMON, POTTER & CLEEK,

Charleston, West Virginia; James Anthony McKowen, ALLEN

& ALLEN, L.C., Charleston, West Virginia, for Appellants. Roger

Patrick Furey, ARTER & HADDEN, Washington, D.C., for Appel-

lees. ON BRIEF: Marilyn T. McClure, CLEEK, PULLIN, KNOPF

& FOWLER, Charleston, West Virginia, for Appellants. Michael B.

Adlin, ARTER & HADDEN, Washington, D.C.; E. Joseph Buffa,

Charleston, West Virginia, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Against a background of drama and intrigue, the Attorney General

of West Virginia claims qualified immunity and his outside counsel

asserts, on the Attorney General's behalf, attorney-client privilege.

We affirm the district court's refusal to grant qualified immunity to

the Attorney General, because he engaged in activity a reasonable

official in his position would have known was clearly established to

be beyond the scope of his authority. However, because the Attorney

General's outside counsel properly relied on the opinion work product

doctrine and, at her client's behest, the attorney-client privilege, in

refusing to answer certain deposition questions and produce certain

documents, we reverse the district court's order finding outside coun-

sel in contempt.

I.

A.

The first major question raised in these consolidated cases, the

qualified immunity question, revolves around a non-profit organiza-

4

tion known as the Better Government Bureau, Inc. (BGB) and its

efforts to incorporate under that name in the State of West Virginia.

BGB has been incorporated in the State of Ohio since August 1993,

and in the State of Washington since early 1994. A government

"watchdog" association, BGB's members include approximately

forty-seven businesses and 304 individuals from various states. In

addition, BGB works with various advocacy groups, including the

Heritage Foundation, the National Vietnam Veteran's Coalition, and

the Christian Coalition. BGB's mission is "to make government more

efficient, responsive and less corrupt" by working for lower taxes,

fewer restrictions on free enterprise, and less bureaucracy. BGB mon-

itors and investigates government activities, and disseminates infor-

mation about government policies affecting businesses, focussing

particularly on complaints from its members.

In August 1994, Suarez Corporation Industries (SCI) lodged a

complaint with BGB regarding West Virginia Attorney General Dar-

rell McGraw and his Office. SCI is one of BGB's most active mem-

bers and its largest source of membership dues. The Attorney

General's Office had filed suit against one of SCI's subsidiaries for

fraudulent activities and violations of West Virginia's Consumer

Credit and Protection Act, W. Va. Code §§ 46A-1-101 to 46A-8-102.

SCI asserted that the investigation and prosecution of these violations

were improper and raised questions about abuse of power. BGB

attempted to investigate this complaint by requesting information

from the Attorney General under the West Virginia Freedom of Infor-

mation Act, W. Va. Code §§ 29B-1-1 to 29B-1-7. The Attorney Gen-

eral assertedly refused to provide the requested information.

In the face of what it considered stonewalling, BGB decided to go

public with its dispute with the Attorney General. BGB broadcast the

following announcement on three area radio stations on September 8,

1994:

THIS IS AN IMPORTANT ANNOUNCEMENT

The Better Government Bureau is investigating the actions

of Attorney's [sic] General Darrell McGraw and [Assistant

Attorney General] Tom Rodd.

5

Voters already removed McGraw from the State Supreme

Court because of his poor performance.

Now we are trying to obtain public information about the

Attorney General under the "Freedom of Information Act",

but it has been denied. What are McGraw and Rodd trying

to hide?

If you have any information about Darrell McGraw, Tom

Rodd or anyone in the Attorney General's office, please

contact the Better Government Bureau toll free at 1-800-

807-9881. The number again is 1-800-807-9881.

PAID FOR BY THE BETTER GOVERNMENT BUREAU.

Subsequently, an article about BGB appeared in the Charleston

Gazette. The article paraphrased a BGB newsletter's criticism of

McGraw and Rodd, and indicated that BGB intended to "open a West

Virginia office and possibly start a West Virginia chapter." The news-

paper quotes BGB's president, Kenneth Nickalo, as saying "[w]e're

sick of the state government of West Virginia . . . . We think we can

crack politics in West Virginia, use what we do in West Virginia as

a model, and do what we'll do in West Virginia in other states."

A week after this article appeared in the Charleston Gazette, Attor-

ney General McGraw instructed an employee, Lila Hill, to reserve the

corporate name, "Better Government Bureau," with the West Virginia

Secretary of State's Office pursuant to W. Va. Code § 31-1-12 (allow-

ing reservation of the "exclusive right to the use of a corporate

name"). When Hill attempted to reserve the name"Better Govern-

ment Bureau," she was informed that anyone seeking to reserve that

name had to see Mr. Wilkes, the Director of the Corporations Divi-

sion of the Secretary of State's Office. Wilkes, who had placed an

"administrative flag" on the name because Secretary of State Ken

Hechler "had an interest in" it, was unavailable. Hill returned to the

Attorney General's office and informed McGraw that she had been

unable to see Wilkes or to reserve the name. McGraw instructed Hill

to return to the Secretary of State's Office and to see Secretary of

State Hechler personally about reserving the Better Government

Bureau name.

6

Hill returned and met with Secretary of State Hechler, who person-

ally escorted her back to the Corporations Division; Hill then reserved

the name "Better Government Bureau." Later that same day, Hill and

McGraw completed the necessary forms, and Hill went to the office

of the County Clerk to file articles of incorporation for a new corpora-

tion with the name, "Better Government Bureau, State of West Vir-

ginia, a Government Agency Corporation." McGraw used personal

funds to pay for the incorporation fee.

About a month later, BGB followed through on its plans to open

a West Virginia chapter and applied for certification as a foreign cor-

poration doing business in West Virginia. The Secretary of State's

Office rejected BGB's application, however, because another entity

(the Attorney General's) had already incorporated in West Virginia

using "Better Government Bureau" as part of its name.

Nickalo, BGB's president, sent letters to both McGraw and

Hechler requesting that they take appropriate steps to eliminate the

obstacles to BGB's incorporation. Although McGraw did amend his

corporation's articles of incorporation to modify its name slightly, he

did not remove the words "Better Government Bureau" from the name.1

Thus BGB remained unable to incorporate or register to do business

as a foreign corporation in West Virginia under its chosen name.

At the same time BGB was attempting to incorporate in West Vir-

ginia, Attorney General McGraw wrote to other state attorneys gen-

eral about BGB. On October 4, 1994, he sent a letter to the attorneys

general of all forty-nine other states, in which he advised them:

If your office becomes involved in a sweepstakes probe,

you will encounter this corporation. To foreclose the possi-

bility of such a corporation operating in your State, you may

want to register the name of the Better Government Bureau

as an agent for the Attorney General's Office with the Sec-

retary of State's Office or take other preventative measures.

_________________________________________________________________

1 The entity's name has undergone several changes. The current name

is "Better Government Bureau Office of the Attorney General State of

West Virginia a body politic a corporate instrumentality of government

with limited agency and quasi-sovereign capacity."

7

Two days later, McGraw sent another letter to the same recipients,

this time by facsimile. This letter alleged that an SCI attorney had

"threatened violence" upon Deputy Attorney General Rodd, and

advised:

When you come up against these people, you should know

that there is a possibility that their modus operandi might

include a proclivity to violence.

Please recall my recent letter, in which I recommend that

you protect the name Better Government Bureau in your

State, otherwise when you act to protect your consumers

you will be attacked by a Better Government Bureau for

doing so.

On October 28, 1994, BGB filed suit in federal court against Attor-

ney General McGraw, personally and in his official capacity, the

"government agency" BGB, and Secretary of State Hechler, in his

official capacity. BGB alleged: (1) McGraw and Hechler violated

BGB's rights of free speech under the federal and state constitutions;

and (2) all of the defendants infringed on BGB's trade name and ser-

vice mark in violation of the Lanham Act, 15 U.S.C. § 1125(a), and

the common law. BGB sought injunctive relief, money damages, and

attorneys fees; although, on the constitutional claims brought pursuant

to 42 U.S.C. § 1983, BGB sought money damages only against

McGraw.

Following discovery, the parties filed cross motions for summary

judgment. On September 16, 1995, the district court issued a thorough

opinion addressing those motions. See Better Gov't Bureau v.

McGraw, 904 F. Supp. 540 (S.D.W. Va. 1995). The court granted

summary judgment to Hechler, the government agency BGB, and

McGraw, in his official capacity, on their Eleventh Amendment

immunity defenses to BGB's "state law causes of action." Id. at 553.

The court denied all other motions for summary judgment, including

that based on McGraw's defense of qualified immunity to BGB's fed-

eral constitutional claims against McGraw in his personal capacity.

Id. at 549-54. McGraw appealed the qualified immunity ruling; BGB

did not cross appeal.

8

In December 1995, while the qualified immunity appeal was pend-

ing, BGB became aware of the existence of a highly relevant memo-

randum that the defendants had failed to identify or produce during

discovery. BGB had received this memorandum from Donna Willis,

a secretary in the Attorney General's Office, who McGraw subse-

quently fired. The memorandum was written by Daynus Jividen, a top

McGraw aide, to Secretary of State Hechler.

The memorandum, dated September 26, 1994, reads as follows:

The Attorney General's Office anticipates that an organi-

zation called the Better Government Bureau, out of Canton,

Ohio, will shortly seek registration through your office, in

order to conduct its alleged business in the State of West

Virginia. When the Better Government Bureau attempts reg-

istration the Attorney General requests your office to resist

and refuse such registration on the grounds that the Better

Government Bureau's attempt to ply its business in our state

constitutes a fraud and a deceit.

Also, please inform me when the organization's applica-

tion is received by your office. Thank you for your attention

to this matter.

The Jividen memorandum, written on McGraw's letterhead, indicates

that copies were sent to McGraw and Assistant Attorney General

Francis Hughes.

On December 29, 1995, BGB's attorneys informed McGraw's

counsel that BGB had obtained a copy of the Jividen memorandum.

McGraw's attorneys then produced to BGB's attorneys Secretary of

State Hechler's reply to the Jividen memorandum, which reads:

In response to your memorandum of September 26, and

after personal discussion with the Attorney General, I will

be pleased to inform you when the Better Government

Bureau actually attempts to register with the Secretary of

State's office. The issue of resisting and refusing such regis-

tration is more complicated tha[n] I at first imagined.

9

I do not recall any instance when any organization has

been denied registration because of its political activity.

You[r] memorandum refers to the BGB's "attempt to ply its

business in our state [as] constitut[ing] a fraud and a deceit."

Without passing judgment as to whether this would consti-

tute sufficient grounds for resisting and refusing registration,

I would ask that you spell out in writing the fraud and deceit

to which you refer in your September 26 memorandum.

Hechler never received any support for the Jividen memorandum's

allegations of fraud and deceit.

On January 5, 1996, in response to Donna Willis' leak of the Jivi-

den memorandum to BGB, the Attorney General retained outside

counsel, Barbara H. Allen, Esquire. Allen was engaged to investigate

possible document mismanagement and confidentiality breaches in

the Attorney General's Office and to prepare a written report of her

findings and recommendations.

A few days later, BGB requested that the district court reopen dis-

covery to determine the circumstances surrounding the Jividen memo-

randum, the Hechler reply, and their nonproduction. On January 10,

1996, the district court granted BGB's motion, provided this court

agreed to remand the case for further discovery. After we granted the

parties' stipulated motion to remand, the district court vacated its

October 1995 order denying McGraw summary judgment on qualified

immunity grounds, and reopened discovery on that issue.

During the next few weeks, BGB deposed McGraw, Jividen,

Hechler, and others. As is more fully discussed in section II.A., BGB

also attempted to depose outside counsel Allen as to the results of her

investigation. Although ordered to do so by the district court, Allen

relied on the opinion work product doctrine, and, on her client's

behalf, asserted attorney-client privilege and refused to answer certain

questions or disclose certain documents. On April 25, 1996, the dis-

trict court ultimately found her in contempt.

That same day, the district court issued a supplemental memoran-

dum opinion with regard to McGraw's qualified immunity defense,

reinstating its October 1995 order denying McGraw qualified immu-

10

nity. McGraw appealed and we consolidated his appeal with the

appeals from the contempt order.

B.

Attorney General McGraw seeks refuge in the well-established

doctrine of qualified immunity: "government officials performing dis-

cretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The district court rejected McGraw's claim to qualified immunity,

reasoning that McGraw's actions in creating his own "governmental

agency," Better Government Bureau corporation,"were beyond the

permissible realm of his discretionary duties and thus outside the

scope of his responsibility." Better Gov't, 904 F. Supp. at 553 n. 17.

For this reason, the court held McGraw was "not entitled to qualified

immunity." Id.2 The Eleventh, Second, and Ninth Circuits, as well as

the Western District of Virginia, have similarly held that an official

acting beyond the scope of his authority may not claim qualified

immunity. Shechter v. Comptroller of New York, 79 F.3d 265, 268-70

(2d Cir. 1996); Lenz v. Winburn, 51 F.3d 1540, 1545-47 (11th Cir.

1995); Merritt v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987); Front

Royal and Warren County Indus. Park Corp. v. Town of Front Royal,

922 F. Supp. 1131, 1142 (W.D. Va. 1996). However, this question is

one of first impression in this court.

The Supreme Court has discussed the proper standard to apply

when analyzing § 1983 immunity questions:

Section 1983 "creates a species of tort liability that on its

face admits of no immunities." Imbler v. Pachtman, 424

_________________________________________________________________

2 The court also concluded that BGB alleged a violation of clearly

established First Amendment rights, and that a reasonable person in

McGraw's position would have known that his alleged conduct violated

these rights. Better Gov't, 904 F. Supp. at 552-53. In view of our conclu-

sion that McGraw exceeded the scope of his authority, we need not

address this issue.

11

U.S. 409, 417 (1976). Nonetheless, we have accorded cer-

tain government officials either absolute or qualified immu-

nity from suit if the "tradition of immunity was so firmly

rooted in the common law and was supported by such strong

policy reasons that `Congress would have specifically so

provided had it wished to abolish the doctrine.'" Owen v.

City of Independence, 445 U.S. 622, 637 (1980) (quoting

Pierson v. Ray, 386 U.S. 547, 555 (1967)). If parties seeking

immunity were shielded from tort liability when Congress

enacted the Civil Rights Act of 1871 - § 1 of which is codi-

fied at 42 U.S.C. § 1983 - we infer from legislative silence

that Congress did not intend to abrogate such immunities

when it imposed liability for actions taken under color of

state law. See Tower v. Glover, 467 U.S. 914, 920 (1984);

Imbler, supra, 424 U.S., at 421; Pulliam v. Allen, 466 U.S.

522, 529 (1984). Additionally, irrespective of the common

law support, we will not recognize an immunity available at

common law if § 1983's history or purpose counsel against

applying it in § 1983 actions. Tower, supra, 467 U.S., at

920. See also Imbler, supra 424 U.S., at 424-29.

Wyatt v. Cole, 504 U.S. 158, 163-4 (1992) (parallel citations omitted).

See also Malley v. Briggs, 475 U.S. 335, 339-40 (1986) ("Our initial

inquiry [regarding immunity under § 1983] is whether an official

claiming immunity under § 1983 can point to a common-law counter-

part to the privilege he asserts. If an official was accorded immunity

from tort actions at common law when the Civil Rights Act was

enacted in 1871, the Court next considers whether§ 1983's history or

purposes nonetheless counsel against recognizing the same immunity

in § 1983 actions.") (citations and internal quotation marks omitted);

Heck v. Humphrey, 114 S. Ct. 2364, 2375-76 n.1 (1994) (Souter, J.,

concurring).

Therefore, we begin by examining the common law in 1871, when

Congress enacted § 1983. This examination demonstrates that govern-

ment officials at that time had no immunity for acts that were outside

of the scope of their authority. For example, Blackstone's codification

of the common law refers to the use of legal authority as a defense

to an action in trespass: a defendant could argue that a trespass was

justifiable "if [the] man comes thither . . . to execute in a legal manner

12

the process of the law." 3 William Blackstone, Commentaries *212.

But in cases where a person entering land for a legal purpose "makes

ill use of the authority with which the law entrusts him, he shall be

accounted a trespasser ab initio." Id. at *213. Indeed, actions for mali-

cious prosecution and false imprisonment allowed suit against gov-

ernment officials who exceeded their governmental authority. See id.

at *126-38. See also Payton v. New York, 445 U.S. 573, 592 (1980)

("At common law, the question whether an arrest was authorized typi-

cally arose in civil damages actions for trespass or false arrest, in

which a constable's authority to make the arrest was a defense. Addi-

tionally, if an officer was killed while attempting to effect an arrest,

the question whether the person resisting the arrest was guilty of man-

slaughter or murder often turned on whether the officer was acting

within the bounds of his authority." (emphasis added) (citations omit-

ted)).

As the Supreme Court has noted, however, "it is the American

rather than the English common-law tradition that is relevant."

Anderson v. Creighton, 483 U.S. 635, 644 n.5 (1987). An investiga-

tion of American common law at the time of the enactment of § 1983

establishes that in this country the Supreme Court followed British

common law in holding government officials liable for acts outside

of their authority.

For example, in Mitchell v. Harmony, 13 How. 115, 54 U.S. 126

(1851), the Court drew a bright line between acts that were authorized

by law, and those that were not: if a government officer seized prop-

erty lawfully "the government is bound to make full compensation to

the owner; but the officer is not a trespasser." 13 How. at 134, 54 U.S.

at 146. So long as the officer acted "honestly, and to the best of his

judgment, the law will protect him." Id. If, however, the government

officer acted beyond his authority, even "in his zeal for the honor and

interest of his country . . . [he] has trespassed on private rights." 13

How. at 135; 54 U.S. at 147. See also Little v. Barreme, 2 Cranch

170, 179, 6 U.S. 170, 178 (1804) (commander of American warship

liable for seizure of Danish cargo ship on high seas because captain

acted beyond scope of congressional grant of authority); Wise v.

Withers, 7 U.S. (3 Cranch) 331, 337 (1806) (collector of militia fines

commits trespass by attempting to collect fine from person exempt

from military service); Bates v. Clark, 95 U.S. 204, 209 (1877)

13

(rejecting argument that defendants, as government officials, should

not be liable because the "objection fatal to all this class of defences

is that in that locality [the defendant officials] were utterly without

any authority in the premises . . . . There was here no process from

a competent court, nor any order from any source having authority,

and there is, therefore, no defence.").

In short, in 1871 when Congress enacted § 1983, it was well recog-

nized at common law that a government official who exceeded his

authority enjoyed no immunity, but rather was civilly liable for

money damages. Indeed, after carefully reviewing common law pre-

cedent, the Supreme Court reached precisely this conclusion in Butz

v. Economou, 438 U.S. 478, 489-90 (1978). Following a discussion

of Little, 6 U.S. (2 Cranch) 170, and Bates, 95 U.S. 204, the Court

observed that "[a]s these cases demonstrate, [at common law] a fed-

eral official was protected for action tortious under state law only if

his acts were authorized by controlling federal law.`To make out his

defence he must show that his authority was sufficient in law to pro-

tect him.'" Butz, 438 U.S. at 490 (quoting Cunningham v. Macon &

Brunswick R. Co., 109 U.S. 446, 452 (1883), and Belknap v. Schild,

161 U.S. 10, 19 (1896)).

Of course, we do not suggest that "the contours of official immu-

nity . . . should be slavishly derived from" rules of the common law.

Anderson, 483 U.S. at 645. Once a court has established the state of

the common law at the time Congress enacted § 1983, it must exam-

ine the history and purpose of § 1983 and "the special policy concerns

involved in suing government officials." Wyatt, 504 U.S. at 164, 167

(citing Harlow, 457 U.S. at 813; Mitchell v. Forsyth, 472 U.S. 511,

526 (1985)).

We turn first to the history and purpose of § 1983. Nothing in

either suggests that Congress intended government officials acting

clearly beyond the scope of their authority to be immune from suits

for money damages. The Supreme Court originally established abso-

lute and qualified immunity under § 1983 because "[t]he legislative

record gives no clear indication that Congress meant to abolish

wholesale all common-law immunities." Pierson v. Ray, 386 U.S.

547, 554 (1967); see also Tenney v. Bandhove, 341 U.S. 367, 376

(1951) (legislative immunity). The legislative record similarly gives

14

no indication that Congress meant to enlarge common law immuni-

ties to include officials acting outside the scope of their authority.

Next, we consider "the special policy concerns involved in suing

public officials." Wyatt, 504 U.S. at 167. McGraw argues that because

of these policy concerns, an official should only be held to be acting

beyond the limits of his authority when he commits acts "clearly

established" to be beyond the scope of that authority. Although our

sister circuits have not (at least to date) so held, we agree that govern-

ment officials should be provided this additional protection. In

Harlow v. Fitzgerald the Supreme Court held that even when govern-

ment officials act illegally, they will not be held liable for civil dam-

ages if their conduct is objectively reasonable, i.e., if it "does not

violate clearly established statutory or constitutional rights of which

a reasonable person would have known." 457 U.S. 800, 818 (1982).

The Harlow standard was created "lest[the] threat of liability

`dampen the ardor of all but the most resolute, or the most irresponsi-

ble [public officials], in the unflinching discharge of their duties.'"

Reynoldsville Casket Co. v. Hyde, ___ U.S. ___, ___, 115 S.Ct. 1745,

1751 (1995) (interior quotation marks omitted) (quoting Harlow, 457

U.S. at 814).

This policy concern is equally important when considering when

an official is to be held to have committed acts outside of the scope

of his authority. We certainly do not want public officials to shrink

from fulfilling all of the duties even arguably within the scope of their

authority out of fear that an incorrect interpretation of their duties

would bar them from claiming qualified immunity. Holding an offi-

cial not entitled to claim qualified immunity for acts clearly estab-

lished to be beyond the official's authority offers public officials

ample latitude to perform all of their duties. This rule is not so broad,

however, that even those who are "plainly incompetent" or "know-

ingly violate the law" will nonetheless be allowed to claim qualified

immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986). This accords

with Harlow's warning that the policy considerations that led to

expanding qualified immunity should not be used to provide a "li-

cense to lawless conduct." Harlow, 457 U.S. at 819.

Thus, we hold that the policies that underlie Harlow similarly sug-

gest that an official may claim qualified immunity as long as his

15

actions are not clearly established to be beyond the boundaries of his

discretionary authority.3 This test is objective, and examines what a

reasonable official in the defendant's position would have understood

the limits of his statutory authority to be.

We also recognize that as a policy matter it will not always be fair

to deny a defendant qualified immunity because government officials

could not claim immunity for such behavior at common law. See

Anderson, 483 U.S. at 646. To conclude that an official is not entitled

to claim qualified immunity for acts clearly established to be beyond

the scope of his authority, however, does not make the official

responsible for knowledge of an arcane rule of nineteenth century

law. Rather, all the official must know is the limit of his own author-

ity. A government official does not need an extensive background in

legal history to understand that he cannot claim qualified immunity

when he acts totally beyond the scope of his authority. Thus, we jeop-

ardize no public policy goal by requiring a government official to

know the outer limits of his own authority and, in turn, holding him

responsible for actions clearly established to be outside those limits.

We hold, therefore, that an official who performs an act clearly

established to be beyond the scope of his discretionary authority is not

entitled to claim qualified immunity under § 1983. Multiple other

statements of the Supreme Court support this conclusion. For exam-

ple, in one of the first § 1983 qualified immunity cases, the Court

relied on Justice Harlan's explanation that it is"the relation of the act

complained of to matters committed by law to [the official's] control

or supervision - which must provide the guide in delineating the

scope of the rule which clothes the official acts of the executive offi-

cer with immunity. . . ." Scheuer v. Rhodes, 416 U.S. 232, 247 (1974)

(quoting Barr v. Matteo, 360 U.S. 564, 573-74 (1959) (plurality opin-

ion) (internal citations omitted)). This understanding of § 1983 quali-

fied immunity has been manifest in subsequent cases. See, e.g.,

Procunier v. Navarette, 434 U.S. 555, 561-62 (1978) (holding § 1983

immunity dependent upon "the scope of discretion and responsibili-

ties of the office"); Wood v. Strickland, 420 U.S. 308, 318 (1975)

(same). Similarly, the Court in Barr quoted Judge Learned Hand's

_________________________________________________________________

3 Of course an official may still be liable for acts within his authority

that violate clearly established law. Harlow, 457 U.S. at 818.

16

famous statement that "[t]he decisions have, indeed, always imposed

as a limitation upon the immunity that the official's act must have

been within the scope of his powers. . . ." 360 U.S. at 572 (quoting

Gregoire v. Biddle, 177 F.2d 579, 581 (1949), cert. denied, 339 U.S.

949 (1950)).

Our holding also accords with Fourth Circuit precedent, which has

consistently limited entitlement to qualified immunity to "[g]overn-

ment officials who perform discretionary functions." Bonner v.

Anderson, 81 F.3d 472, 475 (4th Cir. 1996) (emphasis added); see

also Buonocore v. Harris, 65 F.3d 347, 353 (4th Cir. 1995) ("[O]ffi-

cials . . . [are] accorded qualified immunity . . . in the performance

of discretionary duties."); Price v. Sasser, 65 F. 3d 342, 345 (4th Cir.

1995) ("government officials performing discretionary functions gen-

erally are shielded") (quoting Harlow, 457 U.S. at 818); Slattery v.

Rizzo, 939 F.2d 213, 216 (4th Cir. 1991) (Powell, J.) ("[g]overnment

officials performing discretionary functions are shielded from civil

liability"); Bright v. McClure, 865 F.2d 623, 625 (4th Cir. 1989)

("[P]ublic officials . . . are clothed with qualified immunity in the per-

formance of discretionary functions.").

We emphasize that public officials seldom use their offices to

engage in conduct that is entirely beyond their discretionary authority.

In fact, plaintiffs rarely assert that the defendant officials were not

"acting pursuant to their job functions and within the scope of their

authority." See Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994).

This is because most § 1983 claims involve conduct that relates to, or

flows from, conduct that the official is indeed authorized to commit.

However, when a government official does act totally beyond the

scope of his authority, he received no immunity at common law and

is entitled to none under § 1983.

C.

We now turn to establishing a framework for discerning when a

government official may not claim qualified immunity because he has

exceeded his authority.

Before permitting an official to claim qualified immunity a court

must determine that the official's acts were not clearly established to

17

be beyond the scope of his authority. The defendant official bears the

burden of demonstrating that the conduct of which the plaintiff com-

plains "falls within the scope of the defendant's duties." Shechter v.

Comptroller of New York, 79 F.3d 265, 268 (2d Cir. 1996); Rich v.

Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988) (holding that for immu-

nity an official "must first prove that `he was acting within the scope

of his discretionary authority when the allegedly wrongful acts

occurred.'") (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.

1983)); see also Mackey v. Dyke, 29 F.3d 1086, 1095 (6th Cir. 1994)

(finding that "defendants bear the initial burden. . . [of] show[ing]

they were acting within their discretionary authority at the time in

question"); Gray v. Bell, 712 F.2d 490, 502 n. 36 (D.C. Cir. 1983) ("It

is clear that the scope of authority requirement is a prerequisite to any

application of official immunity whatever the level of protection

asserted or the nature of the claim involved."); Barker v. Norman, 651

F.2d 1107, 1124-25 (5th Cir. 1981) (to claim qualified immunity, a

defendant official must show that "the complained-of actions were

undertaken pursuant to the performance of his duties and within the

scope of his discretionary authority"). But, in order to ensure that pub-

lic officials are adequately protected from liability, an official's con-

duct falls within his authority unless a reasonable official in the

defendant's position would have known that the conduct was clearly

established to be beyond the scope of that authority.

In determining the scope of an official's authority, and whether the

act complained of was clearly established to be beyond that authority,

the issue is neither whether the official properly exercised his discre-

tionary duties, nor whether he violated the law. If these were the rele-

vant inquiries, any illegal action would, by definition, fall outside the

scope of an official's authority. See Shechter, 79 F.3d at 269. To

equate "the question of whether the defendants acted lawfully with

the question of whether they acted within the scope of their discre-

tion" is "untenable." Sims v. Metropolitan Dade Co., 972 F.2d 1230,

1236 (11th Cir. 1992); Barr, 360 U.S. at 572 ("A moment's reflection

shows [that such an approach] defeat[s] the whole doctrine.") (quot-

ing Gregoire, 177 F.2d at 581). Instead, a court must ask whether the

act complained of, if done for a proper purpose, would be within, or

reasonably related to, the outer perimeter of an official's discretionary

duties. Id. The scope of immunity "should be determined by the rela-

tion of the [injury] complained of to the duties entrusted to the offi-

18

cer." Doe v. McMillan, 412 U.S. 306, 319-20 (1973) (citing Barr, 360

U.S. at 573-74). An official acts beyond the scope of his authority

only if the injury occurred during the performance of an act clearly

established to be outside of the limits of that authority.

As an example of a court that properly focused upon the scope of

the defendant's duties, consider Sims v. Metropolitan Dade County,

972 F.2d 1230 (11th Cir. 1992). In Sims, an employee alleged that his

supervisors in the Dade County Department of Community Affairs

unconstitutionally suspended him from work for three days solely

because he had made inflammatory public statements. To determine

whether the supervisors acted within the scope of their authority the

Eleventh Circuit inquired whether suspending an employee was

within the scope of the supervisors' discretionary duties, not, as the

plaintiff employee urged, whether suspending an employee for exer-

cising First Amendment rights was within the scope of those supervi-

sory duties. Id. at 1236. The Sims court held that "[a]s supervisory

employees of the Department, the [d]efendants' duties included the

consideration of complaints about the conduct of Department employ-

ees, such as [plaintiff], and the administration of discipline" and for

this reason, the "[d]efendants successfully established that they acted

within the scope of their discretionary authority." Id.

Similarly, the proper inquiry in the instant case is whether

McGraw's action -- forming his own "government agency" corpora-

tion under the auspices of the Attorney General's Office -- was

clearly established to be beyond the scope of his authority. The issue

is not whether McGraw exceeded the scope of his authority by form-

ing this corporation in retaliation for speech critical of him.

In Doe and Barr the Supreme Court made clear that determination

of the scope of an official's authority depends upon an analysis of the

statutes or regulations controlling the official's duties. See Doe, 412

U.S. at 321-24 (carefully interpreting statutes dictating the duties of

the Public Printer and Superintendent of Documents); Barr, 360 U.S.

at 574-75 (analyzing duties of agency director under statute defining

authority of agency). See also Lenz, 51 F.3d at 1546-47 (relying on

both Florida statute that enumerates the duties of a guardian ad litem

and training manual for Florida guardian ad litem program); Krohn v.

19

United States, 742 F.2d 24, 30 (1st Cir. 1984) (examining statutes that

govern FBI duties).4

We turn, therefore, to an analysis of West Virginia law to deter-

mine whether a reasonable official in McGraw's position would have

understood that establishing a "government agency corporation" was

an act clearly established to be beyond the limits of his authority.

West Virginia law narrowly circumscribes the powers of the Attorney

General. Indeed, McGraw himself so held in an opinion he authored

as a justice of the Supreme Court of Appeals of West Virginia. See

Manchin v. Browning, 296 S.E.2d 909, 914-17 (W. Va. 1982).

Manchin held that under West Virginia law "the powers and duties of

the Attorney General" are limited to those "specified by the constitu-

tion and by rules of law prescribed pursuant thereto." Manchin, 296

S.E. at 915. See also State ex rel. McGraw v. Scott Runyan Pontiac-

Buick, Inc., 461 S.E.2d 516, 523 (W. Va. 1995) ("[T]he Attorney

_________________________________________________________________

4 McGraw argues that whether an action is clearly established to be

beyond the scope of a public official's authority must, like a Harlow

inquiry, be divined primarily from case law, and in the absence of spe-

cific case law to the contrary, an official must be held to have acted

within the scope of his authority. There are several problems with this

argument. First, McGraw's description of the Harlow inquiry is not

wholly accurate; "there is no requirement that the exact right allegedly

violated be previously specifically recognized by a court in order for it

[to] be held clearly established for qualified immunity purposes."

Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir. 1995) (interior quota-

tion marks omitted). Second, although McGraw is correct that case law

is frequently crucial to a Harlow inquiry, this is because Harlow focuses

on the reach of clearly established statutory or constitutional rights,

which often are only illuminated by case law. In contrast, the scope of

a defendant official's authority will most frequently be governed by stat-

utes and regulations. Accordingly, whether an official's act was clearly

established to be beyond the scope of his authority depends upon a

review of the laws or regulations that governed his position at the time

of the act. Any relevant case law, of course, should also be considered

and accorded due weight. But, to require case law for this inquiry would

grant many officials immunity for actions well beyond their statutory

authority and rely on the faulty assumption that the limit of a government

official's authority is generally defined by case law, rather than statutes

or regulations.

20

General's powers are limited to those specifically conferred by stat-

ute."). The Manchin court extensively reviewed the authority histori-

cally granted the West Virginia Attorney General, and held that the

Attorney General does not enjoy broad common law powers.

Manchin, 296 S.E.2d at 915, overruling State v. Ehrlick, 64 S.E. 935

(W. Va. 1909).

Therefore, governed by McGraw's own holding for West Virgin-

ia's highest court, we must consider whether establishing a corpora-

tion is one of the duties "specified by the Constitution and by rules

of law" for the Attorney General. Id. at 915. The Constitution of West

Virginia simply provides that the Attorney General "shall perform

such duties as may be prescribed by law." W. Va. Const., art. 7, § 1

(1996). No West Virginia law expressly grants the Attorney General

the right to establish a corporation, let alone a"government agency"

corporation under the auspices of the Attorney General's office, and

no West Virginia Attorney General has ever done so. McGraw con-

cedes this.

What McGraw argues, however, is that W. Va. Code § 46A-7-

102(1) implicitly provides this authorization, by permitting the Attor-

ney General to "[r]eceive and act on complaints . . . [and] [e]stablish

programs for the education of consumers." The crucial flaw in

McGraw's argument is that forming a corporation is not establishing

a "program," and the West Virginia legislature is well aware of the

difference.

The West Virginia legislature has granted certain select govern-

ment entities the power to create public corporations. See W. Va.

Code § 5-26-4(13) (granting Governor's Cabinet on Children and

Families power to "charter public and quasi-public corporations");

§ 17-16B-11(b) (Public Port Authorities "authorized to create a quasi-

public corporation"). In addition, the legislature has occasionally

granted municipalities and counties the authority to charter public

corporations. See W. Va. Code § 10-2-4a (granting municipalities

power to create public corporation to act as park and recreation

board); § 7-15-4 (granting counties power to create public corpora-

tions to provide ambulance services); § 7-17-9 (granting power to

counties to create fire board as public corporation).

21

The power to create a public corporation, however, is clearly dis-

tinct from the power to establish a "program." Although the legisla-

ture has sparingly provided the authority to create public corporations,

far more frequently it has permitted a state official or agency to estab-

lish a program. See, e.g., W. Va. Code § 5A-8-5 (state records admin-

istrator "shall establish and maintain a program for the selection and

preservation of essential state records"); § 3-2-8(b)(2) (clerk of county

commission shall establish program of voter registration); § 7-1-3aa

(county commission "authorized and empowered to create a hazard-

ous material accident response program"); § 7-4-6(d)(2) (West Vir-

ginia Prosecuting Attorneys Institute's duties include duty "to

establish and implement general and specialized training programs");

§ 7-7-2 ("attorney general is . . . authorized . . . to establish such in-

service training programs [for prosecutors]"); § 7-148-9 (civil service

commission shall "establish or prescribe a training program for cor-

rectional officers"); § 15-2-41 (commission has power and duty to

"[d]evelop and maintain a comprehensive program to prevent drunk

driving"); § 16-22-2 (state bureau of public health "authorized to

establish and carry out a program designed to combat mental retarda-

tion . . . due to phenylketonuria, galactosemia, hypothyroidism, and

certain other diseases"); § 16-24-2 ("state director of health shall

establish and maintain a state hemophilia program"); § 18-2-11 ("state

board [of education] shall . . . establish . .. a sabbatical leave pro-

gram"); § 23-3-5 (worker's compensation division "authorized to

establish an electronic transfer program"); § 29-6-27 (civil service

commission division of department of personnel "shall establish a

[leave donation] program"); § 31-18A-5(14) (housing development

fund empowered "to establish and supervise [a building inspection]

program").

In sum, when the West Virginia legislature intends to grant a state

officer, county, or municipality the power to create a corporation, it

plainly so states. When the legislature intends to grant the lesser

power to establish a "program," its language is equally clear. In W.

Va. Code § 46A-7-102(1), the legislature only empowered the Attor-

ney General to "establish programs." As McGraw recognized when

serving as Chief Justice of the West Virginia Supreme Court of

Appeals, "[w]here the language of a statute is clear and without

ambiguity the plain meaning is to be accepted . . . ." Fraley v. Civil

Service Comm'n, 356 S.E.2d 483, 484 (W. Va. 1987) (quoting State

22

v. Elder, 165 S.E.2d 108, 109 (W. Va. 1968)). Thus, we must agree

with the district court that formation of a "government agency" corpo-

ration clearly exceeds the power § 46A-7-102(1) provides to the

Attorney General.

The only other source of authority that McGraw relies on is his

constitutionally-based oath of office. Pursuant to this oath, the Attor-

ney General swears to "faithfully discharge the duties of his said

office to the best of his skill and judgment." W. Va. Const. art. IV,

§ 5. McGraw claims that the oath empowered him to create his own

"government agency" corporation.

In pursuing this argument, McGraw ignores the holding of West

Virginia's highest court in State ex rel. Fahlgren Martin v. McGraw,

438 S.E.2d 338 (W. Va. 1993), specifically rebuffing his prior effort

to expand the Attorney General's limited powers on the basis of this

very oath. In Fahlgren Martin, McGraw asserted that his oath autho-

rized him to investigate and prosecute potential illegalities in state

contracts submitted to him for review. Id. at 343. The court unequivo-

cally rejected this claim. Instead, it narrowly construed the oath's

assignment of power, explaining that "the constitutional intent to pro-

mote good government does not grant the Attorney General the power

or duty to investigate or prosecute [potential contractual illegalities]."

Id. at 345. The court emphasized that the oath did not provide the

Attorney General with any additional powers, explaining that "[a]s

disappointing as it might be to any Attorney General . . . the powers

of the Attorney General [in West Virginia] are strictly defined by

Constitution and statute. This court does not have the right to create

powers which, based upon constitutional and legislative history, were

never intended." Id. McGraw does not even attempt to distinguish

Fahlgren Martin, or the similar ruling of McGraw v. Caperton, 446

S.E.2d 921, 926 (W. Va. 1994), which relied on Fahlgren Martin, to

reject McGraw's claim that the West Virginia Attorney General has

the power to bring a declaratory judgment action in his official capac-

ity.

McGraw points to no other source of authority empowering the

Attorney General to form a "government agency" corporation, and we

have found none.5 This is entirely consistent with the fact that the

_________________________________________________________________

5 In fact, we have found no mention of a "government agency corpora-

tion" in the statutes, regulations, or case law of West Virginia, let alone

23

West Virginia legislature, rather than its executive branch (or any

member of that branch), is the body vested with the power to create

government corporations. See Sims v. Fisher, 25 S.E.2d 216, 228 (W.

Va. 1943) (Public corporations are "the creature and arm of the State"

and are "created by special act [of the legislature]."). "A public corpo-

ration is an instrumentality of the State, founded and owned by the

State in the public interest, supported by public funds, and governed

by managers deriving their authority from the State." State v. Ohio

Valley Gen. Hosp. Ass'n, 140 S.E.2d 457, 460 (W. Va. 1965). See

also White v. Berryman, 418 S.E.2d 917, 924 n.15 (W. Va. 1992)

(public corporations "are entities created by the legislature"); Cowan

v. County Comm'n of Logan County, 240 S.E.2d 675, 678 (W. Va.

1977) (legislature alone has power to create public corporations or

municipalities, but the "`Legislature may confer upon a court or some

administrative officer or board the power to perform some judicial or

ministerial act in the formation of such public corporations'. . . . The

county commission, then, acts as an agency of the legislature per-

forming a ministerial act in the formation of public corporations")

(citing West v. West Virginia Fair Ass'n., 125 S.E. 353, 355-56 (W.

Va. 1924)); Wiseman v. Calvert, 59 S.E.2d 445, 453 (W. Va. 1950)

(same); W. Va. Const. art. VI, § 1 ("The legislative power shall be

vested in a senate and house of delegates.").

As McGraw himself clearly proclaimed in Manchin, the duties of

the West Virginia Attorney General are narrowly limited. 296 S.E.2d

at 915. The Attorney General is not even the "chief law enforcement

officer" of the state. Id. at 917. His role "is not to make public policy

in his own right on behalf of the state." Id. at 920. Nor does his statu-

tory authority authorize him "to assert his vision of state interest." Id.

(citing Motor Club of Iowa v. Dept. of Transportation, 251 N.W.2d

510, 514 (Iowa 1977)). In light of these pronouncements, and the lack

of any constitutional or statutory authority for McGraw's action, we

hold that in forming his own "government agency" Better Govern-

_________________________________________________________________

any reference to "a body politic a corporate instrumentality of govern-

ment with limited agency and quasi-sovereign capacity." The fact that

McGraw created an entity heretofore unknown to West Virginia law,

with personal funds no less, further evidences that he wandered far

beyond the limits of his authority.

24

ment Bureau corporation McGraw performed an act a reasonable offi-

cial in his position would have known was clearly established to be

beyond the scope of his official duties. Accordingly, he cannot claim

entitlement to qualified immunity for this conduct. The district court

properly refused to grant McGraw summary judgment on this ground.6

II.

A.

We now turn to the second major question presented in these con-

solidated cases -- whether the attorney-client privilege or the opinion

work product doctrine protected the information BGB sought from

Barbara Allen, Esquire. The parties do not dispute the facts giving

rise to this question.

Shortly after the Jividen memorandum and the Hechler response

surfaced, the Attorney General's Office retained Allen. A letter, dated

January 5, 1996, from two Managing Deputy Attorneys General

memorialized the engagement. The letter, written on official Attorney

General's Office stationery, states that Allen is being retained "as an

independent consultant to investigate a situation of possible document

mismanagement and confidentiality/security breaches. At the end of

your investigation we envision a written report including findings and

recommendations." Later that same day, one of the deputies wrote

Allen a second letter, also on official stationery,"to clarify that your

appointment to investigate the possible mismanagement of documents

and breach of confidentiality is in your capacity as a lawyer. You are

hereby appointed as Special Counsel to the Attorney General for the

purposes of that investigation."

_________________________________________________________________

6 Without discussion, the district court noted that it "grant[ed] summary

judgment to [BGB] on the issue of qualified immunity." Better Gov't,

904 F. Supp. at 533. In so stating, the court must have simply been

emphasizing its denial of McGraw's motion for summary judgment on

this issue. BGB did not move for, nor was it entitled to, affirmative relief

on qualified immunity grounds. Qualified immunity is a defense. Siegert

v. Gilley, 500 U.S. 226, 231 (1991). All that BGB claimed was that

McGraw could not avail himself of that defense; the only relief BGB

requested with regard to the qualified immunity issue was that the court

deny McGraw's motion for summary judgment, which the court did.

25

In the next few days, in response to the parties' joint motion, we

remanded the immunity appeal to the district court, and that court

granted BGB permission to engage in additional discovery regarding

the making and alleged destruction of the newly discovered docu-

ments. During the following weeks, BGB deposed McGraw, Hechler,

Senior Assistant Attorney General Daynus Jividen, former Chief Dep-

uty Attorney General Fran Hughes, and Donna Willis (the secretary

in the Attorney General's Office who leaked the Jividen memoran-

dum to BGB).

Meanwhile, Allen plunged ahead, interviewing nine people:

McGraw; Senior Assistant Attorneys General Charlene Vaughan,

Larry Bohham, Carolyn Stafford, and Jividen; Hughes; McGraw's

secretary, Jean Young; Hechler; and Willis. Allen conducted all inter-

views one on one, with no one present but Allen and the interviewee.

Allen's notes and summaries of these interviews represent the sole

records of these interviews. By the end of February, approximately

seven weeks after being retained, Allen had expended between 70 to

100 hours on the project, with 20 to 25 hours spent in investigation

and the remainder on drafting her report and doing a "great deal" of

legal research.

BGB timely served Allen with a subpoena duces tecum, noting her

deposition for February 21, 1996. Allen moved to quash the subpoena

asserting the work product doctrine and, on behalf of her client, the

attorney-client privilege, and other privileges.

Immediately prior to Allen's scheduled deposition, the magistrate

judge and the district court each held hearings and denied Allen's

motion to quash, rejecting most of her privilege claims. Allen was

ordered to attend the deposition and produce all documents respon-

sive to the subpoena duces tecum that constituted fact work product.

Allen was also instructed to prepare a privilege log detailing all other

documents, or portions thereof, claimed to be protected from disclo-

sure by attorney-client privilege or the opinion work product doctrine.

The log was to set forth the date, author, and subject matter of all doc-

uments not produced and to indicate those individuals with whom all

such documents had been shared. The court also directed Allen to

submit any withheld documents that BGB challenged for in camera

review.

26

When BGB took Allen's deposition on February 21, Allen declined

to answer various questions or produce certain documents on the

grounds of attorney-client privilege and opinion work product. By

February 23, Allen had prepared and filed a detailed privilege log.

She also simultaneously submitted the disputed documents to the

court for in camera review.

On February 29, BGB moved to enforce the district court's previ-

ous orders. Again, the magistrate judge and the district court rejected

the claim of attorney-client privilege for any of the documents. The

magistrate judge did order that certain opinion work product be

redacted from the documents; BGB does not challenge these redac-

tions.

Allen continued to refuse to turn over most of the documents or to

answer certain related questions on the grounds of attorney-client

privilege and the opinion work product doctrine. Although acknowl-

edging that Allen was acting in good faith, at her clients' behest, and

to protect her clients' claims of privilege and opinion work product,

BGB nonetheless moved that Allen be found in civil contempt.

After holding a hearing, the district court, on April 25, 1996, held

Allen in civil contempt, and imposed a fine of $250.00 per day for

each day she refused to comply with the court's orders. The district

court refused Allen's request to stay the contempt sanctions pending

appeal.

Allen and McGraw noted timely appeals of the district court's

order rejecting the privilege claims and finding Allen in contempt.

Allen also moved for a stay of the contempt sanctions pending appeal.

On May 3, 1996, Judge M. Blane Michael, sitting as a single circuit

judge, granted that motion and stayed the sanctions pending appeal.

Prior to the entry of that order, Allen had paid $1,500.00 in fines pur-

suant to the district court's contempt sanction order. We expedited

Allen and McGraw's appeals of the privilege issues and consolidated

them with the qualified immunity appeal.

On appeal, Allen and McGraw maintain that attorney-client privi-

lege, or the opinion work product doctrine, or both, prevent questions

27

about, and disclosure of, all or part of eighteen documents.7 Attorney-

client privilege is asserted as to sixteen of these documents. These

include: (1) Allen's handwritten notes of interviews she conducted in

January 1996 of McGraw and four of his assistant attorneys general,

and her typed summaries of those notes (two sets of documents from

each of five interviews, ten documents in all (Document nos. 1, 2, and

5-12)); (2) a partial draft report that Allen prepared during early Feb-

ruary 1996 (Document no. 19); (3) Allen's handwritten notes of her

January 17, 1996 interview of the former Chief Deputy Attorney Gen-

eral and her typed summary of those notes (two documents, nos. 3

and 4); (4) handwritten notes prepared on January 3, 1996 by Deputy

Attorney General Carolyn Stafford (Document no. 13); (5) a timeline

of the activities of Donna Willis, which Stafford prepared at Allen's

request (Document no. 14); and (6) a collection of certain employ-

ment records of Donna Willis (Document no. 20). Allen and McGraw

also assert that portions of some of these documents constitute opin-

ion work product. Attorney-client privilege is not asserted as to the

remaining two documents -- handwritten notes and a typed summary

of Allen's January 18, 1996 interview with Secretary of State Hechler

(Documents nos. 16 and 17). Allen and McGraw do maintain, how-

ever, that portions of these documents constitute opinion work prod-

uct.

B.

We turn first to the claim of attorney-client privilege made with

regard to communications between members of the Attorney Gener-

al's Office and Allen.

_________________________________________________________________

7 Allen submitted twenty documents for in camera review but on appeal

no claim of attorney-client privilege or opinion work product is asserted

as to two of these documents: Allen's summaries of her interviews with

Jean Young (Document no. 18) and Donna Willis (Document no. 15).

Allen turned both of these documents over to BGB, after the magistrate

judge had redacted the portions of them that he found to be opinion work

product. BGB does not appeal these redactions. (Allen's assertion on

appeal that part of Document no. 15 was outside the scope of the sub-

poena duces tecum is meritless. Therefore, as the magistrate judge

directed, that part of Document no. 15 must also be disclosed to BGB.)

28

Like all privileges, the attorney-client privilege "interferes with the

truth seeking mission of the legal process," and therefore is not "fa-

vored." United States v. Aramony, 88 F.3d 1369, 1489 (4th Cir.

1996). The Supreme Court, however, has expressly recognized that

the attorney-client privilege enjoys a special position as "the oldest of

the privileges for confidential communications known to the common

law" and that the privilege serves a salutary and important purpose:

to "encourage full and frank communication between attorneys and

their clients and thereby promote broader public interests in the obser-

vance of law and administration of justice." Upjohn Co. v. United

States, 449 U.S. 383, 389 (1981). Accordingly, if a party demon-

strates that attorney-client privilege applies, the privilege affords all

communications between attorney and client absolute and complete

protection from disclosure. See In re Grand Jury Proceedings, 1996

WL 732101 at *2, ___ F.3d ___, ___ (4th Cir. 1996) ("No doubt

exists that under normal circumstances, an attorney's advice provided

to a client, and communications between attorney and client are pro-

tected by attorney-client privilege.").

A party asserting the privilege must demonstrate:

(1) the asserted holder of the privilege is or sought to

become a client; (2) the person to whom the communication

was made (a) is a member of the bar of a court, or his subor-

dinate and (b) in connection with this communication is act-

ing as a lawyer; (3) the communication relates to a fact of

which the attorney was informed (a) by his client (b) with-

out the presence of strangers (c) for the purpose of securing

primarily either (i) an opinion on law or (ii) legal services

or (iii) assistance in some legal proceeding, and not (d) for

the purpose of committing a crime or tort; and (4) the privi-

lege has been (a) claimed and (b) not waived by the client.

United States v. Tedder, 801 F.2d 1437, 1442 (4th Cir. 1986) (quoting

United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-

59 (D. Mass. 1950)), cert. denied, 480 U.S. 938 (1987).

BGB, as it forthrightly acknowledges, has never questioned "[i]n

its numerous briefs on the contempt issues" that the Attorney General

has established most of these criteria. See Brief of Appellees at 57.

29

Thus, BGB makes no claim that the Attorney General and his Office

were not Allen's clients. (For this reason when referring to Allen's

clients, we refer to McGraw and the Office interchangeably herein.)

Nor does BGB assert that Allen is not a member of the bar, that the

privilege was ever waived, or that any communications were made for

the purpose of committing a crime or tort.8

Rather, BGB focuses solely on Allen's role when the communica-

tions at issue occurred, and the purpose of those communications.

BGB asserts that Allen acted as an investigator rather than as an attor-

ney, and consequently, the client communications at issue here were

not made for the purpose of securing legal services. The magistrate

judge and the district court so held, concluding for this reason that the

attorney-client privilege did not protect the communications between

Allen and her clients made during the investigation.

The parties agree that our standard of review is twofold. To the

extent a district court's holding that the attorney-client privilege does

not protect communications "rest[s] essentially on determinations of

fact," we review those determinations for "clear error." United States

_________________________________________________________________

8 Nor does BGB maintain that the attorney-client privilege is inapplica-

ble to communications between a governmental officer or entity and the

officer or entity's attorney. The district court expressly held "governmen-

tal officials can rely on the attorney-client privilege to protect confiden-

tial communications in certain circumstances." Better Gov't, 924 F.

Supp. at 733. That holding accords with the relevant authority. See, e.g.,

Coastal States Gas Corp. v. Dep't. of Energy, 617 F.2d 854, 863 (D.C.

Cir. 1980) ("[I]t is clear that an agency can be a `client' and agency law-

yers can function as `attorneys' within the relationship contemplated by

the privilege"); Green v. Internal Revenue Service, 556 F.Supp. 79, 85

(N.D. Ind. 1982) (privilege is unquestionably applicable to relationship

between government attorneys and administrative personnel), aff'd, 734

F.2d 18 (7th Cir. 1984); Resolution Trust Corp. v. Diamond, 137 F.R.D.

634, 643 (S.D.N.Y. 1991) (government agencies may invoke privilege,

but bear same burden as do private parties of establishing its applicabil-

ity); In the Matter of Grand Jury Subpoenas Duces Tecum, 574 A.2d

449, 454 (N.J. Super. Ct. App. Div. 1989) ("[W]e have no hesitancy in

holding that the privilege is fully applicable to communications between

a public body and an attorney retained to represent it."). See also NLRB

v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975).

30

v. Aramony, 88 F.3d at 1389 (quoting Sheet Metal Workers Int'l Ass'n

v. Sweeney, 29 F.3d 120, 123 (4th Cir. 1994)). Our review is de novo,

however, to the extent the court's holding rests on application of con-

trolling legal principles to the facts. See In re Grand Jury Proceed-

ings, Thursday Special Grand Jury, 33 F.3d 342, 353 (4th Cir. 1994).

See also In re Grand Jury Proceedings, 1996 WL 732101 at *4, ___

F.3d at ___.

The principal error in the district court's holding is a legal one. The

court apparently believed that if a client retains an attorney to perform

the "rudimentary" task of conducting an investigation, that assign-

ment can never constitute legal work and so the attorney-client privi-

lege does not protect communications between the client and the

investigating attorney. Better Gov't, 924 F. Supp. at 733 n.5. The

Supreme Court's landmark decision in Upjohn renders this theory

untenable.

In Upjohn, a corporation's in-house general counsel conducted an

internal "factual" investigation of "questionable payments" that some

of the corporation's subsidiaries had made to foreign governments.

449 U.S. at 387-89. This investigation, which involved in-house

counsel requesting certain employees to complete a questionnaire and

interviewing those and other employees, was the only legal work at

issue in Upjohn. Explaining that the attorney-client privilege "exists

to protect not only the giving of professional advice to those who can

act on it but also the giving of information to the lawyer to enable him

to give sound and informed advice," 449 U.S. at 390, a unanimous

Supreme Court held that the privilege protected the questionnaires

and the attorney-investigators' notes of their interviews with Upjohn

employees. Although the focus of Upjohn's analysis was on whether

the scope of the privilege included communications to counsel by

employees outside the corporation's "control group," the Court's

affirmative answer to this question necessarily implies a recognition

that an attorney's investigation may constitute a legal service, encom-

passed by the privilege.

Indeed, the Supreme Court in Upjohn expressly noted that "[t]he

first step in the resolution of any legal problem is ascertaining the fac-

tual background and sifting through the facts with an eye to the

legally relevant." Id. at 390-91. By itself this statement demonstrates

31

the defect in the district court's reasoning that"legal counsel is not

necessary" to perform the "rudimentary" function of conducting an

investigation. Better Gov't, 924 F. Supp. at 733 n.5.9

But the Upjohn pronouncement hardly stands alone. Courts have

consistently recognized that investigation may be an important part of

an attorney's legal services to a client. See, e.g., United States v.

Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996); Dunn v. State Farm &

Casualty Co., 927 F.2d 869, 875 (5th Cir. 1991) (applying Mississippi

law); In re Grand Jury Subpoena, 599 F.2d 504, 510-11 (2d Cir.

1979); Diversified Indus. v. Meredith, 572 F.2d 596, 606-10 (8th Cir.

1977) (en banc hearing 1978); Arcuri v. Trump Taj Mahal Assocs.,

154 F.R.D. 97, 104 (D.N.J. 1994); In re Int'l Sys. & Controls Corp.

Sec. Litig., 91 F.R.D. 552, 557 (S.D. Tex. 1981), vacated on other

grounds, 693 F.2d 1235 (5th Cir. 1982); In re LTV Sec. Litig., 89

F.R.D. 595, 599-611 (N.D. Tex. 1981); In re Grand Jury Subpoena,

478 F. Supp. 368, 371-73 (E.D. Wis. 1979). Indeed, BGB itself relies

on a case in which the court expressly held that"the attorney-client

privilege encompasses factual investigations by counsel." United

States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990).10

_________________________________________________________________

9 The district court's suggestion that the Attorney General's Office

"likely has a staff of investigators" undermines rather than supports the

court's conclusion that the Office did not hire Allen in her capacity as

an attorney. Better Gov't, 924 F. Supp. at 733 n.5. If the Attorney Gener-

al's Office simply needed a lay investigator to collect and summarize

information, it could have used its own staff and avoided the expense of

retaining outside legal counsel. The very retention of outside counsel

indicates that the Office wanted someone who could collect and "sift[ ]

through the facts with an eye to the legally relevant." Upjohn, 449 U.S.

at 390-91.

10 In Davis, a government contract case, the government and the con-

tractor sought documents from each other and each party asserted

attorney-client privilege. In the course of its opinion, the court unremark-

ably recognized that for communications to be privileged, an attorney

"must be functioning as an attorney" and that attorney-created documents

whose "primary purpose" was "business negotiations" rather than "legal

advice were not privileged." Davis, 131 F.R.D. at 401. The court also

held, however, that the attorney-client privilege protected communica-

tions made by a government official to a FBI agent investigating a matter

32

Of course, not all communications between an attorney and client

during attorney-conducted investigations constitute legal work enti-

tled to attorney-client privilege. For example, no privilege attaches

when an attorney performs investigative work in the capacity of an

insurance claims adjuster, rather than as a lawyer. See Harper v. Auto

Owners Ins. Co., 138 F.R.D. 655, 671 (S.D. Ind. 1991); Mission Nat'l

Ins. Co. v. Lilly, 112 F.R.D. 160, 163 (D. Minn. 1986). But even in

these cases the courts did not suggest, let alone hold, that investiga-

tion can never constitute legal work. Quite the contrary, they carefully

instructed that only "[t]o the extent" attorneys acted as claims adjust-

ers, a "pure, ordinary business function," was their investigation "out-

side the scope of the asserted privileges." Mission Nat'l, 112 F.R.D.

at 163. See also Harper, 138 F.R.D. at 671 ("To the extent this attor-

ney acted as a claims adjuster, claims process supervisor, or claim

investigation monitor, and not as a legal advisor, the attorney-client

privilege would not apply.").

Thus, even these cases are entirely consistent with the great body

of law holding that confidential communications made to attorneys

"hired to investigate through the trained eyes of an attorney" are privi-

leged. In re International Sys., 91 F.R.D. at 557. As the court

explained in In re LTV Securities Litig., when rejecting the argument

that the privilege should not apply when the attorneys involved per-

formed an "investigative rather than strictly legal" function:

[W]hile in house accountants or lay investigators could have

been employed to investigate the events in question, neither

_________________________________________________________________

for government attorneys. Id. at 398. In fact, the Davis court concluded

that all investigative materials were protected by either attorney-client

privilege or the work product doctrine. Id. at 403-408. The only other

cases BGB relies on to support its argument that investigation does not

constitute legal work are North American Mortgage Investors v. First

Wisconsin Nat'l Bank of Milwaukee, 69 F.R.D. 9 (E.D. Wis. 1975), and

City of Virginia Beach v. U.S. Dep't of Commerce, 805 F. Supp. 1323

(E.D. Va. 1992), aff'd in part, rev'd in part on other grounds, 995 F.2d

1247 (4th Cir. 1993). Both cases concluded that the mere performance

by a lawyer of a task does not privilege communications made during

that task; neither holds (nor suggests) that an attorney's investigation

never constitutes privileged legal work.

33

would have brought to bear the same training, skills and

background possessed by attorneys and necessary to make

the professional independent analysis and legal recommen-

dations sought by the LTV Board of Directors.

89 F.R.D. at 600-01. In sum, Upjohn made "clear that fact finding

which pertains to legal advice counts as professional legal services."

Rowe, 96 F.3d at 1297 (internal citations omitted). See also In re

Grand Jury Subpoena, 599 F.2d at 510 (investigation by law firm

retained to investigate and provide legal advice based on that investi-

gation "trigger[s] the attorney-client privilege").11

Accordingly, we must reject the legal theory espoused by district

court that the attorney-client privilege does not apply here, simply

because Allen's assigned duties were investigative in nature.12 The

_________________________________________________________________

11 Our good colleague in dissent suggests that because Allen was

engaged to investigate the Attorney General's Office, communications

made between Allen and employees of that Office, who may have been

"targets" of the investigation, should not be protected by attorney-client

privilege. Upjohn forecloses this contention. In Upjohn, counsel for a

corporation sought and obtained information from numerous employees

of that corporation as part of an investigation of"possibly illegal" pay-

ments made by the corporation to foreign government officials. 449 U.S.

at 386. The Upjohn employees who were interviewed by the corpora-

tion's counsel were in precisely the same position as the employees of

the Attorney General's Offices whom Allen interviewed. The Supreme

Court held that the attorney-client privilege protected communications

between Upjohn's counsel and its employees, regardless of rank, because

the communications were made in order to formulate and render legal

advice to the corporation itself. Id. at 389-397. Neither the dissent nor

BGB claim that a governmental entity cannot avail itself of attorney-

client privilege to the same extent as a corporation. See supra n.8. Of

course, the underlying facts communicated between a corporate or gov-

ernmental entity's employees and its counsel are not privileged and

BGB, like the Government in Upjohn, 449 U.S. at 395, is free to obtain

these facts by questioning the same employees.

12 The district court also concluded that the "general policies favoring

disclosure" in 42 U.S.C. § 1983 cases create an extra barrier for a § 1983

defendant asserting attorney-client privilege. Better Gov't, 924 F. Supp.

at 733-34. There is no support for this legal theory either. In the cases

34

relevant question is not whether Allen was retained to conduct an

investigation, but rather, whether this investigation was "related to the

rendition of legal services." Dunn, 927 F.2d at 875. If it was, and it

clearly was here, then "[t]he privilege is not waived." Id. See also

Rowe, 96 F.3d at 1297.

To the extent the district court's conclusion to the contrary consti-

tuted a factual finding, it was clearly erroneous. Examination of the

record permits only one conclusion: Allen was retained to conduct an

investigation using her legal expertise. Abundant evidence unequivo-

cally supports this conclusion, and no evidence contradicts it.

In reaching a contrary conclusion, the district court appeared to

rely on the engagement letters, and Allen's similar description of her

charge set forth in her motion to quash the subpoena. Id.13 The first

_________________________________________________________________

upon which the district court and BGB rely, the courts refused to recog-

nize or extend other privileges because to do so would prevent civil

rights plaintiffs from discovering critical facts. See, e.g., Skibo v. City of

New York, 109 F.R.D. 58, 63-64 (E.D.N.Y. 1985) (claims of "self critical

analysis" privilege and executive privilege did not bar discovery of Inter-

nal Affairs Division's Procedural Manual and employee effectiveness

evaluations in excessive force case when documents sought were the

"only available source of the information"). The rationale of those cases

does not apply here, even by analogy, because, as noted within, the

attorney-client privilege does not protect underlying facts, only attorney-

client communications about these facts. Upjohn, 449 U.S. at 395. Thus,

no privilege prevents BGB from interviewing, indeed deposing, every

witness Allen interviewed, and so obtaining the same facts. What BGB

may not do is ask Allen or her clients what they said to each other.

13 The district court may also have relied on two newspaper articles that

characterize Allen as a "special investigator." Id. The articles, of course,

constitute unsworn hearsay, entitled to no weight. See, e.g., Pan-Islamic

Trade Corp. v. Exxon Corp., 632 F.2d 539, 556-57 (5th Cir.), reh'g

denied, 642 F.2d 1210 (5th Cir. 1980), cert. denied, 454 U.S. 927 (1981).

BGB does not make any serious argument to the contrary but simply

asserts that consideration of them, if error, was harmless. Even if cred-

ited, the articles hardly prove Allen acted solely as an investigator, rather

than as a lawyer using legal expertise to conduct an investigation; the

articles described Allen as a lawyer who had been "hired to investigate"

and "provide a report as quickly as possible." Associated Press, McGraw

Hires Investigator, Charleston Daily Mail, January 6, 1996; Associated

Press, West Virginia Investigating Missing File Case, The Columbus

Dispatch, January 6, 1996.

35

engagement letter, dated January 5, 1996, signed by Managing Dep-

uty Attorneys General Deborah Henry and William Steele states:

Thank you for meeting with us yesterday. Based upon our

discussions, we would like to retain you as an independent

consultant to investigate a situation of possible document

mismanagement and confidentiality/security breaches. At

the conclusion of your investigation we envision a written

report including findings and recommendations.

This is to confirm that we agreed upon an hourly rate of

$125.00 for your services.

The second letter, which Henry alone sent by facsimile later the same

day, states:

I am writing to clarify that your appointment to investi-

gate the possible mismanagement of documents and breach

of confidentiality is in your capacity as a lawyer. Thus, you

are hereby appointed as Special Counsel to the Attorney

General for the purpose of that investigation.

In the memorandum in support of her motion to quash, Allen echoed

that she had been appointed as "Special Counsel to the Attorney Gen-

eral for the purpose of investigating possible breach[es] of confidenti-

ality within the Office of the Attorney General and possible

mismanagement of documents within the Office of the Attorney Gen-

eral."

The district court apparently regarded the second engagement let-

ter's statement that Allen was hired in her "capacity as a lawyer" as

an after-the-fact, self-serving attempt to shield relevant, damaging

facts from disclosure and so refused to be bound by this statement.

Better Gov't, 924 F. Supp. at 733. Of course, attorney-client privilege

is never "available to allow a [client] to funnel its papers and docu-

ments into the hands of its lawyers for custodial purposes and thereby

avoid disclosure." Radiant Burners v. American Gas Ass'n, 320 F.2d

314, 324 (7th Cir.), cert. denied, 375 U.S. 929 (1963). But we find

it difficult to understand why the second letter is suspect in view of

36

the fact that, as BGB acknowledges, it was sent the same day as the

first letter, and before Allen conducted any interviews. Since attorney-

client privilege protects only the disclosure of client communications,

and not the disclosure of any underlying facts, Upjohn, 449 U.S. at

395, a client cannot possibly hide information simply by communicat-

ing it to his lawyer; BGB could have simply deposed each of the par-

ties that Allen interviewed and discovered this information itself.

However, with or without the second letter, a court cannot reason-

ably infer from the record in this case that Allen acted as an "investi-

gator solely and not as both investigator and lawyer." Better Gov't,

924 F. Supp. at 733 n.5. Rather, the record clearly indicates, as both

the first engagement letter and Allen's description of her task in her

motion to quash expressly state, that the Attorney General's Office

retained a lawyer, Allen, to investigate and prepare "a written report

including findings and recommendations." Obviously, as BGB points

out, Allen's status as an attorney, is not, in itself, sufficient to estab-

lish she was hired to do legal work. But just as obviously, clients

often do retain lawyers to perform investigative work because they

want the benefit of a lawyer's expertise and judgment. As Upjohn and

its progeny demonstrate, if a client retains an attorney to use her legal

expertise to conduct an investigation, that lawyer is indeed perform-

ing legal work.

In addition to the documents upon which the district court seemed

to rely, i.e. the engagement letter and the motion to quash, other evi-

dence, apparently not examined by the district court, further supports

the conclusion that the Attorney General's Office retained Allen to

use her legal talents and judgment in conducting the investigation. For

example, at deposition, in response to questions from BGB's counsel,

Allen explained that of the 70 to 100 hours this assignment consumed,

she spent only 20 to 25 hours on investigation per se, spending the

remainder of her time on legal tasks -- researching legal issues, pre-

paring memoranda of interviews, and composing her written report.

BGB did not and does not suggest that Allen lied in so testifying

under oath. Nor did BGB offer any evidence contrary to this testi-

mony.

Similarly, William Steele, one of the two Managing Deputies who

signed the letter retaining Allen, stated in a sworn affidavit that "Mrs.

37

Allen was specifically asked not only to investigate but also to make

findings and recommendations to the Attorney General and the

Office. We anticipated that her findings and recommendations would

be based on her investigation, her factual and legal analysis, and her

experience as an attorney." Steele emphasized that "there was and is

no question in my mind that [Allen] was retained in her capacity as

an attorney."

Furthermore, Allen's interview memoranda evidence that her

understanding of the underlying legal issues dictated the direction of

the interviews. Additionally, examination of the draft of Allen's

report indicates it is not the type of report one would expect of a lay

investigator. Rather, the report, though incomplete, contains legal

conclusions as to past events, as well as recommendations for future

conduct, conclusions which only a lawyer is qualified to make.

In short, when controlling legal principles are applied to the undis-

puted record evidence, a court must conclude that the Attorney Gen-

eral's Office retained Allen to conduct an investigation in her capacity

as an attorney, for the purpose of providing legal services and advice.

Therefore, the attorney-client privilege protects all communications

between Allen and the attorneys in the Attorney General's Office that

occurred in connection with her investigation. For this reason, Allen

need not respond to questions regarding the substance of these com-

munications, and she need not produce her notes or summaries of

interviews of McGraw or any of his assistants (Document nos. 1, 2,

5-12) or her draft report (Document no. 19), all of which constitute

privileged communications between attorney and client.

C.

The attorney-client privilege is also claimed for several other com-

munications.

First, it is asserted that the privilege protects Allen's notes and

summaries of her interviews of Fran Hughes, a former Chief Deputy

Attorney General (Document nos. 3 and 4). Although Hughes served

as a member of the Attorney General's Office during the time frame

relevant to the activities Allen investigated, Hughes was not

employed by the Office at the time of her interview with Allen.

38

BGB does not assert that communications with former employees

should be entitled to any less protection than communications with a

client's current employees receive. The Supreme Court in Upjohn left

open the question of whether the scope of the attorney-client privilege

extends to include communications with former, as well as current,

employees. 449 U.S. at 394 n.3. However, in a concurring opinion,

Chief Justice Burger indicated his belief that the privilege should

apply to communications by former employees: "in my view the

Court should make clear now that, as a general rule, a communication

is privileged at least when, as here, an employee or former employee

speaks at the direction of the management with an attorney regarding

conduct or proposed conduct within the scope of employment." Id. at

402-03 (Burger, C.J., concurring).

Most lower courts have followed the Chief Justice's reasoning and

granted the privilege to communications between a client's counsel

and the client's former employees. See In re Coordinated Pretrial

Proceedings in Petroleum Prod. Antitrust Litig., 658 F.2d 1355, 1361

n.7 (9th Cir. 1981) (The Upjohn "rationale applies to the ex-

employees . . . involved in this case. Former employees, as well as

current employees, may possess the relevant information needed by

corporate counsel to advise the client. . . ."), cert. denied, 455 U.S.

990 (1982); Admiral Ins. Co. v. United States Dist. Ct. for Dist. of

Arizona, 881 F.2d 1486, 1493 (9th Cir. 1989) (relying on Coordinated

Pretrial Proceedings); Porter v. Arco Metals Co., 642 F. Supp. 1116,

1118 (D. Mont. 1986) (Upjohn indicates that "the attorney-client priv-

ilege may extend to [defendant's] former employees . . . [with regard

to their communications with] the company's counsel."); United

States v. King, 536 F. Supp. 253, 259 (C.D. Cal. 1982) ("[The

attorney-client] relationship existed even though[the witness] was not

an employee of [the client] at the time of the conversation."),

overruled on other grounds by United States v. Zolin, 842 F.2d 1135

(9th Cir. 1988); Amarin Plastics v. Maryland Cup Corp., 116 F.R.D.

36, 41 (D. Mass. 1987) ("In some circumstances, the communications

between a former employee and a corporate party's counsel may be

privileged.").14

_________________________________________________________________

14 Those courts that have denied the privilege to communications

between the client's attorney and former employees have generally been

39

In light of the purpose underlying the privilege, this conclusion

seems warranted. The Supreme Court has explained that the attorney-

client privilege "rests on the need for the advocate and counselor to

know all that relates to the client's reasons for seeking representation

if the professional mission is to be carried out." Trammel v. United

States, 445 U.S. 40, 51 (1980). The Court reiterated this "need to

know" focus in Upjohn: "the privilege exists to protect not only the

giving of professional advice to those who can act on it but also the

giving of information to the lawyer to enable him to give sound and

informed advice." 449 U.S. at 390. In rejecting the "control group"

test for determining which employees are within the scope of a corpo-

ration's attorney-client privilege, the Upjohn Court recognized that "it

will frequently be employees beyond the control group . . . who will

possess the information needed by the corporation's lawyers." Id. at

391.

Accordingly, we hold that the analysis applied by the Supreme

Court in Upjohn to determine which employees fall within the scope

of the privilege applies equally to former employees. In this case, the

Attorney General's Office employed Hughes during the time period

in question and she possessed information relevant to Allen's investi-

gation. Allen interviewed Hughes at the direction of her client, in

order to provide legal advice to her client. Moreover, Allen needed

the information that Hughes could provide in order to develop her

legal analysis for her client. Consequently, Allen's notes and sum-

mary of her interview with Fran Hughes (Document nos. 3 and 4) are

protected, and Allen need not answer questions regarding her inter-

view with Hughes.

_________________________________________________________________

following state law or concluded that the former employee had ceased

being employed by the client before the relevant conduct occurred.

Nakajima v. General Motors, 857 F.Supp. 100, 104 (D.D.C. 1994) (D.C.

law); Barrett Industrial Trucks v. Old Republic Ins. Co., 129 F.R.D. 515,

517-18 (N.D. Ill. 1990) (Illinois law); Connolly Data Sys. v. Victor

Technologies, 114 F.R.D. 89, 93-94 (S.D. Cal. 1987) (California law). Of

course, state law does not apply in this § 1983 action, and it is undisputed

that the Attorney General's Office did employ Hughes during the rele-

vant time frame.

40

The attorney-client privilege is also claimed to protect the collec-

tion of certain employment records of Donna Willis (Document no.

20). Although attorneys in the Attorney General's Office created por-

tions of these documents, the records do not contain communications

by those attorneys to Allen for her legal advice. Indeed, most of these

records appear to pre-date Allen's engagement. Accordingly, the

attorney-client privilege does not protect Document No. 20.

The last two documents for which the attorney-client privilege is

asserted are certain handwritten notes (Document no. 13) and a time-

line of Donna Willis' activities (Document no. 14). Although the table

of contents to the documents submitted for in camera review states

that Document no. 13 consists of "handwritten notes prepared on Jan-

uary 3, 1996 by Carolyn Stafford," the summary of this document

states that it consists of "Handwritten Interview Notes of Interview

with Carolyn Stafford, Deputy Attorney General." The document

itself includes five pages of handwritten notes in which the author is

unnamed; two pages of the notes seem to be dated,"4-10-95" and "6-

7-95," well before the date on which Allen was retained, January 3,

1996. For this reason, we simply cannot determine from examination

of the record the author, purpose, or timeframe of these notes and so

cannot determine whether attorney-client privilege applies. On

remand, the district court should make these determinations. Only if

the court concludes that the notes were prepared by Allen, or by a

member of the Attorney General's Office at her request, after that

Office retained her, and that the notes were to assist her in performing

the investigation and giving advice to her client, does attorney-client

privilege attach. Otherwise, no privilege applies.

Document no. 14, the "Timeline for Donna Willis prepared by Car-

olyn Stafford at Barbara Allen's request" presents similar problems.

While not mislabelled, neither the table of contents, nor the summary,

nor the timeline itself, indicate when Stafford prepared the timeline

for Allen. This deficiency again prevents us from determining

whether the privilege protects the timeline. If Stafford prepared the

timeline prior to the time that the Attorney General's Office retained

Allen, the document is not privileged; if a member of the Attorney

General's Office prepared the timeline for Allen after she was

retained to aid her in performing her investigation and report, the

41

timeline is privileged. Again, we leave these determinations to the

district court's careful analysis on remand.

D.

Finally, we address Allen's claims that opinion work product pro-

tects some of the documents submitted for in camera review. Because

we have already held attorney-client privilege applies to certain docu-

ments or because the opinion work product doctrine is not asserted as

a shield to discovery, this inquiry involves only three documents.

These are: Allen's handwritten notes of and typewritten summary of

her interview with Secretary of State Hechler (Document nos. 16 and

17), and Allen's selection and collection of certain of Donna Willis'

employment records (Document no. 20).

In contrast to fact work product, which is discoverable "upon a

showing of both a substantial need and an inability to secure the sub-

stantial equivalent of the materials by alternate means without undue

hardship," opinion work product "enjoys a nearly absolute immunity

and can be discovered only in very rare and extraordinary circum-

stances." In re Grand Jury Proceedings, Thursday Special Grand

Jury, 33 F.3d 342, 348 (4th Cir. 1994). Accord National Union Fire

Ins. v. Murray Sheet Metal, 967 F.2d 980, 984 (4th Cir. 1992). See

also Fed. R. Civ. P. 26(b)(3). Courts carefully guard opinion work

product from disclosure to an opposing party, fearing that otherwise

"[a]n attorney's thoughts, heretofore inviolate, would not be his own."

Hickman v. Taylor, 329 U.S. 495, 511 (1947). Furthermore, revealing

an attorney's thoughts and opinions to an opposing party runs con-

trary to the principles underlying the adversary process. "Discovery

was hardly intended to enable a learned profession to perform its

functions . . . on wits borrowed from the adversary." Hickman, 329

U.S. at 516 (Jackson, J., concurring). If courts failed to protect opin-

ion work product, lawyers would lose the incentive to do thorough

research, relying instead on the opposing party's effort; clients and

our adversary system would suffer as a result.

To qualify for protection under the work product doctrine, a lawyer

must create the document in anticipation of litigation. In re Grand

Jury Proceedings, 33 F.3d at 348. Once that threshold is met, opinion

work product is that which contains an attorney's"mental impres-

42

sions, conclusions, opinions or legal theories . . . concerning the liti-

gation." National Union, 967 F.2d at 984 (internal quotation marks

omitted). If material constitutes opinion work product it is "absolutely

immune from discovery" whether it was "actually prepared by the

attorney or another representative of the party." Id. (internal quotation

marks omitted). With these principles in mind, we turn to examination

of the three documents at issue here.

Most of Document no. 16, Allen's handwritten notes of her inter-

view with Hechler, has already been produced. Allen does seek to

shelter, as opinion work product, a portion of page 2 of this docu-

ment. In describing this item in the material submitted for in camera

review, Allen states, "[t]he entry [is] covered with editing tape which

I couldn't get off; however, the entry can be read[ ] if the page [of the

original document] is held up to the light." We have examined the

record for this entry -- the original documents submitted for in cam-

era review are missing. Accordingly, we cannot make any assessment

as to this document. On remand, the district court, in view of the prin-

ciples set forth within, should assess whether this entry constitutes

opinion work product.

Document no. 17 is Allen's typewritten summary of her interview

with Secretary of State Hechler. BGB has already received certain

redacted portions of this document. Allen seeks to prevent disclosure

of the remainder of the document. Clearly Allen prepared the sum-

mary in anticipation of litigation. She was hired in the midst of this

very litigation because her client failed to produce a relevant docu-

ment requested in discovery; part of her charge was to investigate

why this happened and make recommendations for the future. More-

over, as the district court recognized, all parties anticipated further lit-

igation growing out of Donna Willis' discharge. Not only did Allen

prepare the document in anticipation of litigation, but the information

Allen gained from Hechler, later memorialized in her interview sum-

mary, tends to indicate the focus of her investigation, and hence, her

theories and opinions regarding this litigation. See Upjohn, 449 U.S.

at 399 ("Forcing an attorney to disclose notes and memoranda of wit-

nesses' oral statements is particularly disfavored because it tends to

reveal the attorney's mental processes."). Accord Cox v. Administra-

tor U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.) ("In

Upjohn, the Supreme Court made clear that an attorney's notes and

43

memoranda of a witness's oral statements is considered to be opinion

work product."), modified on reh'g, 30 F.3d 1347 (11th Cir. 1994),

cert. denied, 115 S.Ct. 900 (1995). For these reasons, we agree with

Allen that the contested portions of this document constitute opinion

work product; she need not disclose them.

Finally, we turn to Document no. 20. It contains pages of selected

employment records concerning Donna Willis, which Allen requested

that Carolyn Stafford and Charlene Vaughn provide to her. We have

held that attorney-client privilege does not protect these records. Yet,

just as Allen prepared the interview notes and summaries in anticipa-

tion of litigation, she also chose and arranged these records in antici-

pation of litigation. This choice and arrangement constitutes opinion

work product because Allen's selection and compilation of these par-

ticular documents reveals her thought processes and theories regard-

ing this litigation. See, e.g., Shelton v. American Motors Corp., 805

F.2d 1323, 1329 (8th Cir. 1986) ("In cases that involve reams of doc-

uments and extensive document discovery, the selection and compila-

tion of documents is often more crucial than legal research. . . . We

believe [counsel's] selective review of [her clients'] numerous docu-

ments was based on her professional judgment of the issues and

defenses involved in this case."); Sporck v. Peil, 759 F.2d 312, 316

(3d Cir.) ("We believe that the selection and compilation of docu-

ments in this case in preparation for pretrial discovery falls within the

highly-protected category of opinion work product."), cert. denied,

474 U.S. 903 (1985). See also James Julian v. Raytheon Co., 93

F.R.D. 138, 144 (D. Del. 1982) ("In selecting and ordering a few doc-

uments out of thousands counsel could not help but reveal important

aspects of his understanding of the case.").

Thus, the opinion work product doctrine protects Document no. 20

from disclosure. We emphasize that this conclusion does not protect

Donna Willis' personnel records from disclosure, just Allen's selec-

tion and arrangement of them. BGB remains free to seek, by proper

discovery request, Willis' personnel records, as well as any witness's

sworn testimony or any other factual material.

III.

In sum, with regard to the qualified immunity appeal, No. 96-1652,

we affirm the district court's denial of McGraw's motion for sum-

44

mary judgment. As for the appeals of the contempt order, Nos. 96-

1464 and 96-1601, we reverse and remand. We hold that attorney-

client privilege protects disclosure of the notes and summaries of

Allen's interviews with attorneys in the Attorney General's Office,

including former Chief Deputy Hughes, as well as the draft of her

report. (Document nos. 1-12 and 19). BGB cannot force Allen to

answer questions regarding those interviews and that report. Further,

the opinion work product doctrine protects the portions of Allen's

typed summary of her interview with Hechler that BGB has not previ-

ously received, as well as Allen's collection and selection of Donna

Willis' employment records. (Document nos. 17 and 20). We, there-

fore, reverse the district court's order holding Allen in contempt. We

remand the case for the district court to make the further privilege

determinations with regard to Document nos. 13, 14, and 16 in accor-

dance with this opinion.

No. 96-1652 is

AFFIRMED.

Nos. 96-1464 and 96-1601 are

REVERSED AND REMANDED.

NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

I concur in part I and part II D of the opinion for the court; I dissent

from parts II A-C addressing the district court's application of the

attorney-client privilege.

The party asserting the attorney-client privilege carries the burden

of establishing, inter alia, that he is a client; that the person to whom

the communication was made was acting as an attorney; that the com-

munications for which he claims the attorney-client privilege were

confidential and took place between him and his lawyer and con-

cerned matters on which the lawyer was representing him; that the

communication was not for the purpose of committing a crime or tort;

and that he has not waived the privilege. While I do not disagree with

many of the legal principles announced by the majority with respect

to the nature and scope of the attorney-client privilege, I conclude that

the majority has failed to apply its own principles correctly to the cir-

cumstances of this case.

45

Following hearings and the examination of relevant documents, the

district court was not persuaded that Barbara Allen was acting as an

attorney in her work for the West Virginia Attorney General's office.

The district court examined the circumstances leading up to Allen's

engagement and the engagement documentation and concluded that

"the court is concerned about the bona fides of McGraw's claim that

Barbara Allen was hired and retained as an attorney." The majority

has simply sidestepped this conclusion and substituted its own. More-

over, the majority has not addressed the question of whether Allen

was retained to do the work of an attorney. Apparently the Attorney

General hired her in response to leaks of documentation revealing

potential misconduct by the Attorney General with the purpose of dis-

covering the source of the leaks and disciplining the offending per-

sons. Such work could have been done equally by an investigator,

detective, or police officer. As the district court found, however, the

Attorney General elected to engage Allen with the purpose of shield-

ing from public view the product of such an investigation. Against

these facts, I do not believe we can conclude that the district court

erred.

At least as troubling to me is the unwillingness of the majority to

focus on the identity of Allen's client. The Attorney General claims

that the client was the Attorney General and the Attorney General's

office. The purpose of the investigation, however, was to investigate

the Attorney General's office and discover who was leaking informa-

tion. Thus, the Attorney General would have to be urging that Barbara

Allen was retained to represent both the investigator and the targets

of the investigation. The majority is correct to note that a governmen-

tal entity can avail itself of Upjohn's protections. Slip op. at 34, n.11.

But Upjohn's shield protects an entity's ability to use its employees

in the formulation of its own legal position. In this case, in contrast,

the employees were the targets of Allen's investigation and so had

interests which are clearly adverse to the person the majority consid-

ers to be their own attorney. The majority's reasoning thus extends

Upjohn's privilege to protect an entity's attorney's discussions with

adverse persons.

If the targets of the investigation were not clients, as I would sup-

pose, then the attorney-client privilege would not protect notes of

Allen's interviews with these persons under the long-standing line of

46

cases cited by the majority that leaves unprotected factual investiga-

tions that do not involve typical attorney work. See, e.g., Harper v.

Auto-Owners Ins. Co., 138 F.R.D. 655, 671 (S.D. Ind. 1991); Mission

Nat'l Ins. Co. v. Lilly, 112 F.R.D. 160, 162-63 (D. Minn. 1986). If,

on the other hand, we were to suppose that the targets of Allen's

investigation were also her clients, then we have the unseemly and

perhaps illegal suggestion that Allen was representing two opposite

sides of a potentially illegal activity. Moreover, she would be in the

untenable position of revealing the communications of her clients (the

targets of the investigation) to those who would discipline them.

While the majority has stated general principles of attorney-client

privilege with which no one can disagree, it has simply not come to

grips with the nature of the engagement, the identity of the client, the

absence of communications between attorney and client that did not

conceal illegal activity or concerning which the privilege has not been

waived.

In such a complex factual circumstance which involves numerous

documents, we should defer to the district court which has become

familiar with the factual context and documents and has had to make

factual findings and legal judgments based on its knowledge. I would

not find any of the district court's findings clearly erroneous, nor do

I disagree with the district court's rulings that addressed the attorney-

client privilege. Accordingly, I would affirm the district court's rul-

ings on the attorney-client privilege issues.

47