Opinion

In re A Witness before the Special Grand Jury 2000-2

Court: Court of Appeals for the Seventh Circuit
Filed: Apr 25, 2002
Status: Published
On the bench: Per Curiam
Nature of suit: criminal
Cited by: 0 cases
Authority: More cited than 39.7%

no First Amendment-based reporter’s privilege to refuse to testify before grand jury

How later courts described this case

no First Amendment-based reporter’s privilege to refuse to testify before grand jury
noting grand jury’s presumptive "right to every man’s evidence"
implicitly finding that attorney for Detroit City Council could assert privilege
noting in dicta that assertion by a state attorney "implicates potentially serious federalism concerns"

Written by the judges who cited it.

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-3386

In Re: A Witness before the Special

Grand Jury 2000-2.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 GJ 596--Marvin E. Aspen, Chief Judge.

Argued October 29, 2001--Decided April 23, 2002/1

Before Flaum, Chief Judge, and Posner and

Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge. The central

question on this appeal is whether a

state government lawyer may refuse, on

the basis of the attorney-client

privilege, to disclose communications

with a state officeholder when faced with

a grand jury subpoena. The district court

found that in the context of a federal

criminal investigation, no such

government attorney-client privilege

existed. We agree with this

determination, and therefore affirm.

Roger Bickel was employed by the state

of Illinois as Chief Legal Counsel to the

Secretary of State’s office during the

first four years of former Secretary (now

Governor) George Ryan’s administration.

Bickel provided legal counsel and advice

to Ryan and other Secretary of State

officials as they carried out their

public duties. Bickel has also served as

a personal lawyer to Ryan, his wife, and

Ryan’s campaign committee, Citizens for

Ryan, since at least 1989.

For the past three years, federal

prosecutors have been investigating a

"licenses for bribes" scandal in the

Illinois Secretary of State’s office,

dubbed "Operation Safe Road." The alleged

(and in some instances admitted)

corruption extends to the improper

issuance of commercial drivers’ licenses,

specialty license plates, leases, and

other contracts; the improper use of

campaign funds for the personal benefit

of Secretary of State employees; and

obstruction of justice in connection with

internal office investigations. Because

of his role in advising then-Secretary

Ryan, federal prosecutors sought to

discuss these matters with Bickel.

Initially, they tried scheduling a

voluntary interview with him for this

purpose, but Ryan objected to the meeting

and advised both Bickel and the federal

prosecutors that he had not waived and

would not waive the attorney-client

privilege with respect to any of his

prior conversations with Bickel.

After several avenues for resolving the

problem proved unsuccessful, the federal

prosecutors served a subpoena from the

grand jury that commanded Bickel to

appear and testify before that body about

all conversations he had with Ryan in his

official capacity as General Counsel.

They also obtained a motion to compel

Bickel to testify about those matters.

Finally, the United States secured a

letter from Illinois’ current Secretary

of State, Jesse White, in which the

latter purported to waive the Office’s

attorney-client privilege as to all of

Bickel’s official conversations with "all

personnel and officials of the Secretary

of State, regardless of their particular

position or office." Ryan continued to

oppose all efforts to obtain allegedly

privileged information from Bickel.

On September 7, 2001, the district court

granted the United States’ motion to

compel, finding that no attorney-client

privilege attached to the communications

at issue, and, alternatively, that if a

privilege did attach, White had

effectively waived it. While the motion

to compel does not create a final

judgment, we permit clients to

immediately appeal a court order that

their attorney testify before a grand

jury under the exception recognized in

Perlman v. United States, 247 U.S. 7

(1918). See United States v. Evans, 113

F.3d 1457, 1458 (7th Cir. 1997); In re

Grand Jury Proceeding, 68 F.3d 193, 195

(7th Cir. 1995); United States v. Davis,

1 F.3d 606, 607 (7th Cir. 1993). We

therefore have jurisdiction over this

appeal.

We review de novo the question whether

Ryan may invoke the attorney-client

privilege to shield Bickel’s testimony

before the federal grand jury. See Upjohn

Co. v. United States, 449 U.S. 383

(1981). The federal courts have authority

to recognize privilege claims under the

federal common law. Fed. R. Evid. 501.

While Rule 501 manifests a congressional

desire to grant courts the flexibility to

determine privileges on a case-by-case

basis, Trammel v. United States, 445 U.S.

40, 47 (1980), "these exceptions to the

demand for every man’s evidence are not

lightly created nor expansively

construed, for they are in derogation of

the search for truth." United States v.

Nixon, 418 U.S. 683, 710 (1974); In re

Grand Jury Proceedings, 220 F.3d 568, 571

(7th Cir. 2000).

One of the oldest and most widely

recognized privileges is the attorney-

client privilege, which protects

confidential communications made between

clients and their attorneys for the

purpose of securing legal advice. Swidler

& Berlin v. United States, 524 U.S. 399,

403 (1998). It is well established that a

client may be either an individual or a

corporation. See, e.g., Upjohn, 449 U.S.

at 390. But here, we have a special case:

the client is neither a private

individual nor a private corporation. It

is instead the State of Illinois itself,

represented through one of its agencies.

There is surprisingly little case law on

whether a government agency may also be a

client for purposes of this privilege,

but both parties here concede that, at

least in the civil and regulatory

context, the government is entitled to

the same attorney-client privilege as any

other client. See Green v. IRS, 556 F.

Supp. 79, 85 (N.D. Ind. 1982) (privilege

"unquestionably" applies to conversations

between government lawyers and

administrative personnel), aff’d, 734

F.2d 18 (7th Cir. 1984); Restatement

(Third) of Law Governing Lawyers sec. 74

(2000) ("[T]he attorney-client privilege

extends to a communication of a

governmental organization."). We

therefore proceed on that basis.

In the case of private parties, the

privilege functions identically in both

civil and criminal proceedings. Swidler,

524 U.S. at 408-09 (finding "no case

authority for the proposition that the

privilege applies differently in criminal

and civil cases"). The United States,

however, contends that the privilege

between a government attorney and her

official client does not extend to

criminal proceedings, such as a grand

jury investigation. It is supported in

that position by decisions of two courts

of appeals (both with thoughtful

dissents) arising from Independent

Counsel investigations of President

Clinton. See In re Lindsey, 158 F.3d 1263

(D.C. Cir. 1998); In re Grand Jury

Subpoena Duces Tecum, 112 F.3d 910 (8th

Cir. 1997). Ryan argues that those cases

were wrongly decided, at least insofar as

they might apply here to support a

distinction between governmental clients

and private clients.

The first question we face is whether

recognizing a privilege in this case

would be an expansion of the current

scope of the attorney-client privilege,

or if a refusal to recognize the

privilege would amount to a contraction

of an existing privilege. Although this

may seem like two sides of the same coin,

it is not: the Supreme Court has

instructed us, in developing a federal

common law of privileges, to avoid either

derogating existing privileges or

extending privileges to new, uncharted

waters absent compelling considerations.

Jaffee v. Redmond, 518 U.S. 1, 9 (1996).

Unfortunately, there is no clear-cut

answer to this question because, outside

of former Secretary Ryan and the Clinton

administration, only one government body,

the Detroit City Council, has ever

attempted to claim such a privilege in

the criminal context. In re Grand Jury

Subpoena, 886 F.2d 135 (6th Cir. 1989).

Thus, one could argue either that, since

historically the privilege has never been

claimed, recognizing it would be an

extension, or that, since no court has

ever recognized a civil-criminal

distinction to the privilege, creating

one here would constitute an exception.

While Swidler rejected a civil-criminal

distinction for the privilege as to

individuals, other courts have recognized

that the governmental context is

different, even after that decision, and

have limited the privilege for

governmental agencies in the criminal

context. See Lindsey, 158 F.3d at 1272.

This position is supported by the leading

treatise. 24 Charles Alan Wright &

Kenneth W. Graham, Jr., Federal Practice

and Procedure sec. 5475, at 125-27.

Furthermore, the pedigree of the

privilege recognized in Swidler was far

more impressive than the governmental

privilege for which Ryan argues here.

Swidler focused on whether the privilege

survived the death of the individual

client, a proposition that the common law

had assumed for over a century. Swidler,

524 U.S. at 404, citing Russell v.

Jackson, 68 Eng. Rep. 558 (V.C. 1851).

The government attorney-client privilege

has no such deep historical roots. We

therefore reject Ryan’s contention that

Swidler compels us to find an absolute

privilege in the criminal context just

because we acknowledge a government

attorney-client privilege in the civil

context. Even the dissenting judges in

the Clinton cases were unwilling to go so

far as this. Lindsey, 158 F.3d at 1283

(Tatel, J., dissenting) ("[G]overnment

lawyers working in executive departments

and agencies enjoy a reduced privilege in

the face of grand jury subpoenas"); Duces

Tecum, 112 F.3d at 935-38 (Kopf, J.,

dissenting) (finding that in criminal

context government could overcome

privilege through procedural protections

and specific showing of need). Compare

Branzburg v. Hayes, 408 U.S. 665 (1972)

(no First Amendment-based reporter’s

privilege to refuse to testify before

grand jury). Our decision here instead

must rest on whether the policy reasons

for recognizing an attorney-client

privilege in other contexts apply equally

when the United States seeks information

from a government lawyer.

Ryan argues that they do. His main

contention is that the attorney-client

privilege has been created "to encourage

full and frank communication between

attorneys and their clients and thereby

promote broader public interests in the

observance of law and the administration

of justice." Upjohn, 449 U.S. at 389. If

government officials know that

conversations with attorneys in their

offices are not privileged, they will

avoid the candid discussion of sensitive

legal matters. Lindsey, 158 F.3d at 1286-

87 (Tatel, J., dissenting). This could

lead to more legal violations and

corruption in public office. Duces Tecum,

112 F.3d at 930-32 (Kopf, J.,

dissenting). Alternatively, uninformed

public officials afraid to obtain legal

advice will be unable effectively to

carry out their policy objectives,

hampering the implementation of

government programs. Id. at 932. Indeed,

absent a privilege, citizens might be

unwilling to serve in public office at

all.

While we recognize the need for full and

frank communication between government

officials, we are more persuaded by the

serious arguments against extending the

attorney-client privilege to protect

communications between government lawyers

and the public officials they serve when

criminal proceedings are at issue. First,

government lawyers have responsibilities

and obligations different from those

facing members of the private bar. While

the latter are appropriately concerned

first and foremost with protecting their

clients--even those engaged in

wrongdoing-- from criminal charges and

public exposure, government lawyers have

a higher, competing duty to act in the

public interest. Lindsey, 158 F.3d at

1273; Comment to ABA Model Rule 1.13

(noting that government lawyers may have

higher duty to rectify wrongful official

acts despite general rule of

confidentiality). They take an oath,

separate from their bar oath, to uphold

the United States Constitution and the

laws of this nation (and usually the laws

of the state they serve when, as was the

case with Bickel, they are state

employees). Their compensation comes not

from a client whose interests they are

sworn to protect from the power of the

state, but from the state itself and the

public fisc./2 It would be both

unseemly and a misuse of public assets to

permit a public official to use a

taxpayer-provided attorney to conceal

from the taxpayers themselves otherwise

admissible evidence of financial

wrongdoing, official misconduct, or abuse

of power. Compare Nixon, 418 U.S. at 713

(qualified executive privilege applies in

the face of a criminal investigation).

Therefore, when another government lawyer

requires information as part of a

criminal investigation, the public lawyer

is obligated not to protect his

governmental client but to ensure its

compliance with the law.

This discussion necessarily points out

another crucial difference between a

government lawyer’s clients and the

clients of other lawyers. Individuals and

corporations are both subject to criminal

liability for their transgressions.

Individuals will not talk and

corporations will have no incentive to

conduct or cooperate in internal

investigations if they know that any

information disclosed may be turned over

to authorities. Swidler, 524 U.S. at 407.

A state agency, however, cannot be held

criminally liable by either the state

itself or the federal government. See

United States v. Price, 383 U.S. 787, 810

(1967). There is thus no need to offer

the attorney-client privilege as an

incentive to increase compliance with the

laws. True, individual state employees

can be held liable, and many have been

found guilty of crimes in this very

investigation. But the privilege with

which we are concerned today runs to the

office, not to the employees in that

office. See Ill. Sup. Ct. R. 1.13 (2001)

(making clear that an organizational

lawyer’s duty is to the organization, not

the organization’s individual officers).

Just as a corporate attorney has no right

or obligation to keep otherwise

confidential information from

shareholders, Garner v. Wolfinbarger, 430

F.2d 1093, 1101 (5th Cir. 1970), so a

government attorney should have no

privilege to shield relevant information

from the public citizens to whom she owes

ultimate allegiance, as represented by

the grand jury. Branzburg, 408 U.S. at

688 (noting grand jury’s presumptive

"right to every man’s evidence").

In formulating privileges, this court

cannot ignore the interests and

responsibilities of the coordinate

entities within our federal system, all

of which are sworn to uphold the public

interest and committed to the "general

duty of public service." Duces Tecum, 112

F.3d at 920. Public officials are not the

same as private citizens precisely

because they exercise the power of the

state. With this responsibility comes

also the responsibility to act in the

public interest. It follows that

interpersonal relationships between an

attorney for the state and a government

official acting in an official capacity

must be subordinated to the public

interest in good and open government,

leaving the government lawyer duty-bound

to report internal criminal violations,

not to shield them from public exposure.

Nixon, 418 U.S. at 712-13 (recognizing

executive interest in confidentiality may

be lessened in face of criminal

investigation); Lindsey, 158 F.3d at 1273

(noting public interest in "transparent

and accountable government").

In the final analysis, reason and

experience dictate that the lack of

criminal liability for government

agencies and the duty of public lawyers

to uphold the law and foster an open and

accountable government outweigh any need

for a privilege in this context. An

officeholder wary of becoming enmeshed in

illegal acts may always consult with a

private attorney, and there the privilege

unquestionably would apply. While Ryan

fears that our refusal to recognize a

privilege will cause even the most

trivial of matters to be taken to outside

counsel, this strikes us as unduly

alarmist. In fact, analogous rules apply

in the corporate realm, where attorneys

are repeatedly admonished to advise

corporate officials that they are not

personal clients of the attorney and may

wish to retain other counsel. These rules

do not appear to have stifled corporate

discussion or proved impossible to

administer, and we see no reason why a