Better Government Bureau, Inc. v. McGraw

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 communications for which he claims the attorney-client privilege were confidential and took place between him and his lawyer and concerned 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 circumstances of this case.

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. Moreover, 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 discovering the source of the leaks and disciplining the offending persons. 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 shielding 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 information. 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 governmental entity can avail itself of Upjohn’s protections. Op. at 603, 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 considers 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 suppose, then the attorney-client privilege would not protect notes of Allen’s interviews with these persons un *610 der the long-standing line of cases cited by the majority that leaves unprotected factual investigations 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 rulings on the attorney-client privilege issues.