Reed v. Baxter

NATHANIEL R. JONES, Circuit Judge,

dissenting.

The issue before this Court is one of first impression. The majority found that two city councilmen, acting in their official capacities, were third parties in a confidential meeting with the city attorney, and were thus not covered by the attorney-client privilege. Because I feel that the majority construed the attorney-client privilege too narrowly in this context, I respectfully dissent.

It is well settled that agents of a client are covered by the attorney-client privilege to the same extent as the client. See, e.g., John Labatt Ltd. v. Molson Breweries, 898 F.Supp. 471, 473 (E.D.Mich.1995) (noting general rule that attorney-client privilege covers communications between client’s representatives and client’s lawyer). Additionally, the majority has recognized that private corporations and other organizations who are analogous to governmental entities may con *359 stitute clients for purposes of the attorney-client privilege. The majority has even recognized that this court has, in its only case addressing the attorney-client privilege in the governmental context, held that a city and city council were the same entity for the purposes of the attorney-client privilege and thus, as client’s of the city attorney, a city council could invoke the attorney-client privilege. See In re Grand Jury Subpoena (United States v. Doe), 886 F.2d 135 (6th Cir.1989). Yet, the majority found that in this case, a meeting between two city council members, the city manager, city attorney and city fire chief concerning confidential legal advice and action, did not fall within the ambit of the attorney-client privilege. I disagree.

The majority’s primary justification for holding that the privilege does not apply in this case is their belief that there is disparity of interest between the city councilmen and those whose activities directly affected the promotion at issue. The majority cites In re Grand Jury Subpoena Duces Tecum (Office of President v. Office of Indep. Counsel), 112 F.3d 910 (8th Cir.), cert. denied sub. nom, — U.S. -, 117 S.Ct. 2482 , 138 L.Ed.2d 991 (1997) as support for that proposition. In that ease, however, the President’s wife, in her personal capacity, was attempting to assert the attorney-client privilege with regard to a meeting she had with the White House lawyer. Id. at 922. Mrs. Clinton did not allege that she was either an agent of the White House or acting in her official capacity as First Lady. Thus, she was not considered a client of the White House attorney. Mrs. Clinton, to the contrary, merely asserted that although a third party, the common interest doctrine covered her meeting with the White House attorney. Id. at 922. Here, the city councilmen do not have to rely on the common interest doctrine because they attended the meeting in their official capacity as city councilmen. The city council is clearly an agent of the City and as such, is a direct client of the city attorney. Doe, 886 F.2d at 138 . Moreover, In re Grand Jury Subpoena Duces Tecum (Office of President v. Office of Indep. Counsel), involved application of the attorney-client privilege in the criminal context. As justification for a narrower reading of the attorney-client privilege, the court noted that it was significant that executive branch employees, including attorneys, were under a statutory duty to report criminal wrongdoing by other employees. 112 F.3d at 920 . The court also specifically found that application of the attorney-client privilege in civil litigation would present a different issue. Id. at 917-918 .

Furthermore, the fact that Councilmen Ross and Bratcher did not play a direct role in the promotion and therefore did not directly expose the City to liability does not remove them from the reach of the attorney-client privilege. In Upjohn Co. v. United States, 449 U.S. 383 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981), the Supreme Court rejected such a narrow application of the attorney-client privilege in the corporate context. In Upjohn, this court had determined that the “control group” rather than the broader “subject matter” test was applicable for measuring the scope of the attorney client privilege in the corporate context. See United States v. Upjohn Co., 600 F.2d 1223, 1225 (1979), rev’d 449 U.S. 383 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981). Under the subject matter test all employees of the corporation were considered agents of the corporation, and if in possession of information acquired in the ordinary course of business relating to the subject matter of her employment and the information was communicated confidentially, were covered under the attorney-client privilege. Id. at 1226. Only if the communications did not cover communication of preexisting documents prepared for independent business reasons, or communications unrelated to the subject matter of the agent’s employment, were communications between the corporate attorney and the employee excluded from the reach of the privilege. Id. Under the narrower control group test, however, only those communications made by the “control group” of the corporation, “those officers, usually top management, who play a substantial role in deciding and directing the corporation’s response to the legal advice given,” were covered by the privilege. Id. at 1226. The Supreme Court granted certiorari and rejected this Circuit’s application of the *360 narrow control group approach with regard to the attorney-client privilege in the corporate context. See Upjohn Co. 449 U.S. at 392-93 , 101 S.Ct. at 684-85 . The Court noted that the control group test “frustrate[d] the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation.” Id. at 392 , 101 S.Ct. at 684 . The Court criticized the narrow scope given the attorney-client privilege in the court below because it “not only [made] it difficult for corporate attorneys to formulate sound advice when their client [was] faced with a specific legal problem, but [it] also threatened] to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.” Id. Thus, the Court found that the control group test was inapplicable and that because the communications in the case concerned matters within the scope of the employee’s corporate duties, their communications with the corporate attorney were covered by the privilege. Id. at 394-95 , 101 S.Ct. at 685-86 .

Upjohn provides clear reasoning for rejecting the majority’s 'construction of the privilege in this case. Although not directly in charge of promotions in the City, City Councilmen Ross and Bratcher are intricately involved in the process. All hires and fires of all city employees are subject to an appeal directly to the city council. The termination of Henry Knox was appealed to the city council and caused the opening for the promotion at issue in this case. Clearly, because the city council must vote on the propriety of promotions if contested, its members have not only an interest, but a duty to discuss the legal ramifications that may be relevant in making their determinations. As the city attorney in this case noted, “it is important that all members of the city council be furnished, by the attorney, all relevant facts upon which to make their decision.” (J.A. at 35) (Reed Aff.). Simply because the full city council was not present and Ross and Bratcher were not directly responsible for making the initial promotion decision, does not remove them from the reach of the attorney-client privilege. Indeed, under the majority’s reasoning it would be nearly impossible for a city council ever to invoke the attorney client privilege. In most instances, a full city council meeting must be open to the public, which is not conducive to confidential discussions. A city council member then, would only be able to seek confidential legal advice in a private meeting with the city attorney, such as the meeting between the couneilmen and city attorney in this case. The majority, however, would prevent such a meeting from being covered by the attorney-client privilege.

Finally, the underlying facts of this case do not merit the majority’s narrow construction of the attorney-client privilege in order to preserve justice. The facts clearly illustrate that the promotion policy was changed due to problems with the Fire Department’s test, and not simply as an effort to obtain a Black candidate. Indeed, as the majority points out, Chief Baxter had two opportunities to choose a Black candidate, which he did not utilize, before finally choosing Emmet Young. That race may have even played a small rolé in his final decision in an effort to ensure that the Fire Department maintain diversity in the face of an opposite history, and is perceived by its citizens as welcome to all, is not illegal and is in fact one of the remedial purposes behind the Civil Rights Act of 1964. The majority, in its rush to judgment, may well frustrate those very important ideals. Accordingly, I dissent.