Amicus Curiae Brief — Office of the President v. Office of Independent Counsel

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No. 96-1783 :

In The

Supreme Court of the United States

OCTOBER TERM, 1996

OFFICE OF THE PRESIDENT,

Petitioner,

Vv.

OFFICE OF INDEPENDENT COUNSEL, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF LAW PROFESSORS PAUL F. ROTHSTEIN,

RONALD J. ALLEN, MARGARET A. BERGER, WILLIAM J.

BRIDGE, PAUL C. GIANNELLI, STEPHEN GILLERS,

LAIRD C. KIRKPATRICK, DAVID P. LEONARD,

MIGUEL A. MENDEZ, ROGER C. PARK, MYRNA S.

RAEDER, JOHN W. REED, MARK REUTLINGER, LEO M.

ROMERO, STEPHEN A. SALTZBURG, AND PETER

TILLERS AS AMICI CURIAE IN SUPPORT OF PETITIONER

Robert A. Long, Jr.

Professor Paul F. Rothstein Ivan K. Fong*

GEORGETOWN UNIVERSITY COVINGTON & BURLING

LAW CENTER 1201 Pennsylvania Ave., N.W.

600 New Jersey Ave., N.W. P.O. Box 7566

Washington, D.C. 20001 Washington, D.C. 20044-7566

(202) 662-9094 (202) 662-6000

Counsel for Amici Curiae

June 2, 1997 * Counsel of Record

TABLE OF CONTENTS

Page

SA ee ere ko ob ke en s apes ii

be ee a re ere ee ]

REASONS FOR GRANTING THE WRIT ............. |

I. THE DECISION BELOW CREATES AN EXCEPTION

TO THE ATTORNEY-CLIENT PRIVILEGE THAT IS

NOT IN ACCORD WITH ACCEPTED LEGAL

PRINCIPLES AND HAS IMPORTANT ADVERSE

CONSEQUENCES FOR GOVERNMENT .......... 2

A. It Is Well-Settled That The Attorney-Client

Privilege Applies To Government Entities ....... 2

B. The Purposes Served By The Attorney-Client

Privilege Apply With Full Force To

Communications Between Government Entities

And Government LOWYGTS 2.0... cece eee 6

C. The "Grand Jury Exception" Created Below To

The Governmental Attorney-Client Privilege

Erodes The Benefits Of The Privilege So

Severely That Only The Nation’s Highest Court

SE SUE: BU I i ee ons bse 9

D. A “Grand Jury Exception" To The

Governmental Attorney-Client Privilege Pays

Far Fewer Dividends to Grand Jury

Investigations Than The Court Below Assumed ... 12

Il. THE COURT OF APPEALS’ DECISION RAISES A

SERIOUS ISSUE OF FEDERALISM ............ 15

Gee rs bok eds hb wd wwe ee ee 16

NE eT

MN ee eee la

TABLE OF AUTHORITIES

Cases

Page

Commodity Futures Trading Commission v.

Dea, Cre Os POP GRD Fk rete wreneexiss 7

Connecticut Mutual Life Insurance Co. v.

Shields, 18 F.R.D. 448 (S.D.N.Y. 1955) ........... 3

Deuterium Corp. v. United States, 19 Cl. Ct.

ok er eee UN eg Ba we i ad wma 3

Fisher v. United States, 425 U.S. 391 (1976) ............. 7

In re Bieter Co., 16 F.3d 929 (8th Cir. 1994) ........... 5

In re Grand Jury Subpoena, 886 F.2d 135 (6th

CA SOO 6 6x6 ER e DORE PES ORK 4

In re Grand Jury Subpoenas Duces Tecum Served

by the Sussex County Grand Jury, 574 A.2d

449 (N.J. Super. Ct. App. Div. 1989) ............. 4

Jaffee v. Redmond, 116 S. Ct. 1923 (1996) .... 10, 14, 15, 16

Mead Data Central, Inc. v. United States

Department of Air Force, 566 F.2d 242 (D.C.

= eS Seep ey er ree eS ORS rey Peewee 4

NLRB v. Sears, Roebuck & Co., 421 U.S. 132

CPD aks 50 a bk ba ee eee 4

Rowley v. Ferguson, 48 N.E.2d 243 (Ohio Ct.

CS PO Pee eee Ore ee ee eee ee Te -

SEC v. World-Wide Coin Investments, Ltd., 92

Pe ee Ge a Se 6s be eek Choe KASS 3

State v. Today’s Bookstore, Inc., 621 N.E.2d

cae Gee Gl. ST oa a Se oe x Cee eee As 3

Trammel v. United States, 445 U.S. 40 (1980) ........... 7

United States v. Bryan, 339 U.S. 323 (1950) ............ 6

United States v. Calandra, 414 U.S. 338 (1974) ......... 11

United States v. Nixon, 418 U.S. 683 (1974) ....... 2, 12. 33

(ii)

ill

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

SO ea ae ay a wee a ok TA a ee passim

Statutes and Rules

Oe NS bia eee dees 4

Cal. Evid. Code § 951 (West 1995) .. 2... cic e 15

ge ee nN be eRe BA 2.3.6, 38

RE i I a ee Ck kes a elk Kalen 5, 6

POU Wes Ge. SUN, SRM) ow i a ee we ewe wee 5

i i MI og a le as ae ee ww a 6, 15

I a gia pws ce 6, 15

ABA Code of Professional Responsibility

a ee ME ee we Co was 7

Model Rule of Professional Conduct 1.6............... 6

Restatement (Third) of the Law

Governing Lawyers § 124 (Proposed

ee Rs a OO so hy kk ayia SHEN SF 6

Miscellaneous

Roger C. Cramton, The Lawyer as Whistleblower:

Confidentiality and Government Lawyers, 5

eee. 3. Rae Eis 2k (ISP T) ww ww ee eee 8

Developments in the Law: Privileged

Communications, 98 Harv. L. Rev. 1501

Se ee ee a oes o's 0s ae bs Ok Ae oe 14

Earl C. Dudley, Jr., Federalism and Federal

Rule of Evidence 501: Privilege and

Vertical Choice of Law, 82 Geo. L.J. 1781

ae ee ee Bs ok ela Wg a as BS 6

Gregory P. Joseph & Stephen A. Saltzberg,

Evidence in America: The Federal Rules in

the States (1987 & Supp. 1994) ................ 15

iv

Richard O. Lempert & Stephen A. Saltzburg, A

Modern Approach to Evidence (2d ed.

RS SEE RE eee 3

Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence Second (1994) ...............2.. 9

Paul R. Rice, Attorney-Client Privilege:

BAG CRE bk scp ae Pk ee ee 15

Paul R. Rice, Attorney-Client Privilege in the

SG SN GUUIOE ss bok ek aie ah a eee ee 3, 7, 8, 14

Paul F. Rothstein, Rules of Evidence for

United States Courts and Magistrates 139

CORO, SE Wb ws RS Rew Oke Gos 15

Paul F. Rothstein, The Proposed Amendments to

the Federal Rules of Evidence, 62 Geo. L.J.

RRR TE 6 5S he ee Wak 2 OS * VR 12

Paul F. Rothstein, A Re-Evaluation of the

Privilege Against Adverse Spousal Testimony

in the Light of Its Purpose, 12 Int’! &

Cee. 5. As. SER, EEO CE ce see ase se de eews 10

Stephen A. Saltzburg, Corporate

Attorney-Client Privilege in Shareholder

Litigation and Similar Cases: Garner

Revisited, 12 Hofstra L. Rev. 817 (1984) .......... 14

Stephen A. Saltzburg, Privileges and

Professionals: Lawyers and Psychiatrists,

Oe ks en ts Se I dae oo oe cede aes 14

Scott N. Stone & Robert K. Taylor,

Testimonial Privileges (2d

i SE sk os ro eK ri oa es oo RE Ow eS 3

Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Evidence Manual (1996) ............ ee

Weinstein’s Federal Evidence

(McLaughlin ed., 2d ed. 1997) ............... 5, 6

John H. Wigmore, Evidence

re at ey ee re 6

|

INTEREST OF AMICI CURIAE

Amici are law professors who regularly conduct scholarly

research in, publish on, and teach the subjects of evidence or

professional responsibility in law schools throughout the Nation.

Amici law professors have written extensively on issues relating to

the attorney-client privilege, and several have written or edited

leading textbooks and treatises on the law of evidence or

professional responsibility. In addition, many amici have had

practical experience on both sides of civil and criminal cases;

experience working as attorneys in government offices or agencies;

and experience teaching evidence to the bench and bar.

Amici have a professional interest in and concern for the

effective workings of the courts, government, and the legal

profession. In particular, amici have an interest in the integrity and

soundness of rules of evidence and privilege as they may affect the

processes by which public policy, law, and regulations are made.

As teachers of law, amici are also students of the legal profession

and the contribution it makes to our system of government. These

interests are heightened when the subject is, as in this case, the

application of the attorney-client privilege in the context of

government agencies and attorneys.

Brief biographical statements of individual amici are included

in an Appendix to this brief. All parties have consented to the filing

of this brief.

REASONS FOR GRANTING THE WRIT

This Court should grant review not only because this is a case

of national importance and prominence, but also because the

decision below is a conspicuous departure from settled principles of

evidence law. The panel majority concluded that communications

between government lawyers and government officials are not

protected by the attorney-client privilege, at least when those

communications are sought by a federal grand jury. That

conclusion conflicts with the predominant common-law understand-

ing that the attorney-client privilege applies to government entities

and that where the privilege applies, it is absolute (i.e., it protects

against disclosure in all types of legal and investigative

(1)

2

proceedings). In particular, the Court of Appeals’ decision rests on

a fundamental misunderstanding of this Court’s decisions in Upjohn

Co. v. United States, 449 U.S. 383 (1981), and United States v.

Nixon, 418 U.S. 683 (1974).

Moreover, this case warrants further review because the

decision below has profound implications beyond the parties to this

dispute. The Court of Appeals’ ruling, if allowed to stand, will

create widespread uncertainty among federal, state, and local

officials concerning the extent to which their communications with

their agency lawyers, for the purpose of seeking legal advice in the

conduct of governmental affairs, are protected by the attorney-client

privilege. Unless this Court grants review and resolves this

uncertainty, the decision below will likely have an adverse effect on

the current and future operation of not only the Office of the

President of the United States, but also government at all levels. At

the very least, a decision of such vast implications (as in the present

case) should be made by the highest court in the land. We accord-

ingly urge the Court to grant the petition for review. '

I. THE DECISION BELOW CREATES AN EXCEPTION TO

THE ATTORNEY-CLIENT PRIVILEGE THAT IS NOT

IN ACCORD WITH ACCEPTED LEGAL PRINCIPLES

AND HAS IMPORTANT ADVERSE CONSEQUENCES

FOR GOVERNMENT

A. It Is Well-Settled That The Attorney-Client Privilege

Applies To Government Entities

Rule 501 of the Federal Rules of Evidence provides, with

limited exceptions, that “the privilege of a witness, person,

government, State, or political subdivision thereof shall be governed

' Because this brief urges the Court merely to grant further review,

amici do not address in this brief the question whether, assuming the

attorney-client privilege applies to government entities and is absolute, the

requirements for asserting the privilege have been satisfied in this case.

Those questions are more appropriately addressed if and when this Court

elects to grant certiorari. Amici also do not address in this brief the

attorney work-product issue raised by petitioner.

Pursuant to Supreme Court Rule 37.6, this certifies that this

brief was prepared in its entirety by amici curiae and their

counsel. Counsel for the parties did not author this brief in

whole or in part. No person or entity other than amici curiae or i

their counsel made a monetary contribution to the preparation or

submission of this brief. |

3

by the principles of the common law as they may be interpreted by

the courts of the United States in the light of reason and

experience." As the court below recognized (Pet. App. 5a), the

starting point of analysis is therefore the common law, "interpreted

. . in the light of reason and experience." Fed. R. Evid. 501.

At common law, it has long been understood that the attorney-

client privilege applies to communications between government

entities and government lawyers for the purpose of seeking and

providing legal advice. See, e.g., Jack B. Weinstein & Margaret A.

Berger, Weinstein’s Evidence Manual 4 18.03[02][a], at 18-18

(1996) ("Artificial entities, public or private, are . . . considered

clients for purposes of the attorney-client privilege."); Paul R. Rice,

Attorney-Client Privilege in the United States § 4:28, at 4-98 (1993)

("When government agencies consult with legal counsel for the

purpose of obtaining legal advice or assistance . . . the attorney-

client privilege protects [their] communications to those attorneys.");

1 Scott N. Stone & Robert K. Taylor, Testimonial Privileges

§ 1.18, at 1-47 (2d ed. 1995) ("Courts agree that the client may be

an. . . Organization or entity, either public or private.") (footnotes

omitted); Richard O. Lempert & Stephen A. Saltzburg, A Modern

Approach to Evidence 693 (2d ed. 1982) ("The proposed federal

rule and most of the rules that have been enacted by states which

used it as a guideline assume that a client can be a government

agency as well as a corporation.").”

? In SEC v. World-Wide Coin Investments, Lid., 92 F.R.D. 65, 67

(N.D. Ga. 1981), for example, the court applied the principles of this

Court’s Upjohn decision to communications between SEC staff and SEC

counsel. And in Deuterium Corp. v. United States, 19 Cl. Ct. 697, 699

(1990), the court concluded that the "same reasoning" that this Court

employed in Upjohn applies to "Government employees at all levels." In

addition to the cases cited by petitioner in its Petition for Certiorari

("Pet."), see Pet. 18 n.5, other cases that recognize a governmental

attorney-client privilege include Connecticut Mut. Life Ins. Co. v. Shields,

18 F.R.D. 448, 450 (S.D.N.Y. 1955) (communications between bridge

commission and its attorneys held to be privileged), State v. Today’s Book-

store, Inc., 621 N.E.2d 1283, 1288 (Ohio Ct. App. 1993) ("The city is

like a corporation, and the same attorney-client privilege enjoyed by

4

Although the issue has typically arisen in the context of civil

litigation, we are aware of no reported decision (prior to this one)

that suggests a different rule applies in criminal or grand jury

proceedings. Any such distinction would be a departure from a

fundamental feature of the attorney-client privilege; namely, that the

privilege protects against compelled disclosure regardless of the

forum in which the privileged communication is sought. See infra

pp. 6-9. Indeed, the few decisions that have confronted the issue in

a criminal setting have recognized the existence of the privilege.

See In re Grand Jury Subpoena, 886 F.2d 135, 138-39 (6th Cir.

1989) (vacating district court’s order to enforce a federal grand jury

subpoena and remanding to determine whether minutes of a city

council meeting were confidential); Jn re Grand Jury Subpoenas

Duces Tecum Served by the Sussex County Grand Jury, 574 A.2d

449, 454-56 (N.J. Super. Ct. App. Div. 1989) (attorney employed

by a county board of freeholders cannot be required to reveal client

communications to a grand jury investigating the county).’

Apart from judicial decisions, the Freedom of Information Act

("FOIA") expressly recognizes that an attorney-client privilege

exists between government agencies and their lawyers. See 5

U.S.C. § 552 (1994); NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 154 (1975); Mead Data Central, Inc. v. United States Dep’t of

Air Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977). Although the

panel majority below dismissed FOIA jurisprudence as “sui

corporations is enjoyed by the city."), and Rowley v. Ferguson, 48 N.E.2d

243, 248 (Ohio Ct. App. 1942) (communications between attorney and

client, both of whom were public officials, held to be privileged).

> It should not be surprising that there are few reported judicial

decisions in the criminal or grand jury context, because the decision

whether to waive attorney-client privilege in the context of a criminal or

grand jury proceeding is often made within the Executive Branch. See Pet.

20 n.6. In addition, amici surmise that one reason this issue is not litigated

more frequently is that, in the past, lawyers, judges, and scholars had no

reason not to assume — or reasonably took for granted — that government

agencies, no less than other entities, could assert the attorney-client

privilege in the face of a criminal or grand jury investigation.

—

a |

5

generis,” Pet. App. 10a, it would have been singularly odd for

Congress, which is presumed to be well-versed in this area of the

law, to recognize an attorney-client privilege in the FOIA context

if the general rule were that no such privilege exists.

Furthermore, Proposed Federal Rule of Evidence 503 provides

that any "organization or entity, either public or private, who is

rendered professional legal services by a lawyer, or who consults a

lawyer with a view to obtaining professional legal services from

him,” is entitled to the protection of the attorney-client privilege.

Proposed Fed. R. Evid. 503(a)(1), reprinted in 56 F.R.D. 183, 235

(1972). The Advisory Committee Notes to Proposed Rule 503

confirm that "[t}]he definition of ‘client’ includes governmental

bodies." Jd. at 237 (citations omitted). Although the panel

majority’s analysis began with Proposed Rule 503, it abandoned

further consideration on the curious ground that the Proposed Rule

announces a "broad proposition" without specifically addressing "the

particular situation before us in this case." Pet. App. 6a-7a. Courts

usually do not disregard plain language in a statute or rule on the

basis that the text speaks in general terms.

More importantly, Proposed Rule 503 has been recognized as

"a powerful and complete summary of black-letter principles of

lawyer-client privilege. Perhaps more than any other privilege

proposal that was contained in the draft rules presented to Congress,

Standard 503 represents a convenient and logical summary of core

principles in privilege doctrine." 3 Weinstein’s Federal Evidence

§ 503.02, at 503-8 (McLaughlin ed., 2d ed. 1997). Because

Proposed Rule 503 "is useful as a restatement of the traditional

* Although Rule 503 is a proposed rule, and therefore not binding on

the courts, its pedigree makes it a persuasive authority. See, e.g.,

Weinstein’s Evidence Manual ¢ 18.03{01], at 18-17 ("Standard 503

remains a useful starting point in examining the use of the attorney-client

privilege in the federal courts today. It is an accurate restatement of actual

practice and is cited to frequently") (footnote omitted); /n re Bieter Co.,

16 F.3d 929, 935 (8th Cir. 1994) (Proposed Rule 503 is “a useful starting

place" for examination of the federal common law of attorney-client

privilege).

6

common law lawyer-client privilege that had been applied in the

federal courts prior to the adoption of the federal rules," Weinstein’s

Federal Evidence, supra, § 503.02, at 503-8 (footnote omitted), the

court below should have viewed Proposed Rule 503 as persuasive

(though not dispositive) authority that federal common law,

interpreted "in the light of reason and experience," Fed. R. Evid.

501, includes a governmental attorney-client privilege.

B. The Purposes Served By The Attorney-Client Privilege

Apply With Full Force To Communications Between

Government Entities And Government Lawyers

The attorney-client privilege is a long-recognized exception to

the general rule that the public has a right “to every man’s

evidence," United States v. Bryan, 339 U.S. 323, 331 (1950)

(internal quotation and citation omitted). Indeed, it "is the oldest of

the privileges for confidential communications known to the

common law." Upjohn, 449 U.S. at 389 (citing 8 John H.

Wigmore, Evidence § 2290 (McNaughton rev. 1961)). The purpose

of the privilege is to

encourage full and frank communication between attorneys and

their clients and thereby promote broader public interests in the

observance of the law and administration of justice. The

privilege recognizes that sound legal advice or advocacy serves

* Other authorities also recognize a government attorney-client

privilege. See, e.g., Restatement (Third) of the Law Governing Lawyers

§ 124 (Proposed Final Draft No. 1, 1996) ("The attorney-client privilege

extends to a communication of a governmental organization."); Uniform

Rule of Evidence 502 (defining “client” to include governmental bodies and

public officers; subsection (d)(6), which restricts the scope of the privilege,

has been rejected by most States, see infra note 10); Model Rules of

Professional Conduct 1.6 comment ("The requirement of maintaining

confidentiality of information relating to representation applies to

government lawyers .. ."); cf. Earl C. Dudley, Jr., Federalism and

Federal Rule of Evidence 501: Privilege and Vertical Choice of Law, 82

Geo. L.J. 1781, 1841 (1994) (proposing a new Federal Rule of Evidence

501 that includes a governmental attorney-client privilege).

RCN enr enemies

7

public ends and that such advice or advocacy depends upon the

lawyer’s being fully informed by the client.

Id. 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.’" Jd. (quoting Trammel v. United States, 445 U.S.

40, 51 (1980)). Its purpose is “to encourage clients to make full

disclosure to their attorneys." Jd. at 389 (quoting Fisher v. United

States, 425 U.S. 391, 403 (1976)); see also Commodity Futures

Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985).

In Upjohn, the Court rejected a narrow application of the

attorney-client privilege to corporations, concluding that the narrow

“control group” test "overlook[ed] the fact that 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

(citations omitted). The Upjohn Court recognized that "[t}he first

step in the resolution of any legal problem is ascertaining the factual

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

relevant.... ‘It is for the lawyer in the exercise of his

independent professional judgment to separate the relevant and

important from the irrelevant and unimportant.’" Jd. at 390-91

(quoting ABA Code of Professional Responsibility, Ethical

Consideration 4-1).

This Court in Upjohn also recognized that "if the purpose of

the attorney-client privilege is to be served, the attorney and client

must be able to predict with some degree of certainty whether

particular discussions will be protected. An uncertain privilege. . .

is little better than no privilege at all." Upjohn, 449 U.S. at 393.

Upjohn thus affirmed the central principle that the attorney-client

privilege, where it exists, is absolute and cannot be overcome by a

showing of need. See, e.g., Rice, supra, § 2.2, at 2-50 ("If the

protection were not absolute, it would not be predictable, and the

client could not rely on it. Absent a waiver of the protection,

therefore, the privilege precludes disclosure of the communications

8

regardless of the need that might be demonstrated for the informa-

tion in them") (footnotes omitted).°

The purposes served by the attorney-client privilege in the

corporate setting apply with equal force in the government setting.

See Rice, supra, § 4:45, at 4-175 (government agencies "need legal

advice and assistance, and the privilege’s rationale of encouraging

more open communications from the client to the attorney is no less

applicable, even though these entities can only speak and act

through the individuals who represent them"). Government

lawyers, no less than lawyers serving private clients, need to know

all relevant facts before providing legal advice. The need to

promote full and frank disclosure between clients and their lawyers

is no less pressing in the government context than in the private

context.’

® The focus on encouraging the communication ex ante means that the

privilege derives its justification independently of the context in which the

information is sought ex post. In other words, given the rationales

supporting the attorney-client privilege, there is no principled basis on

which to distinguish between privileged information sought later in a

criminal investigation or in civil litigation. Moreover, because the focus

is On encouraging communication ex ante, the essence of the privilege goes

to the need for candor and full access to information at the time the

communication is made, not to the need for the information after the

communication is made. In creating an exception to the attorney-client

privilege for communications sought by a federal grand jury, the court

below appears to have ignored this bedrock principle of privilege law.

7 "The United States government employs more than 22,000 lawyers

to handle its legal problems (two to three percent of all U.S. lawyers). . . .

The variety of legal work performed by government lawyers is nearly as

broad as the breadth of legal activity generally. Lawyers for the federal

government are advisors, counselors and litigators; and they deal virtually

in every legal specialty,...." Roger C. Cramton, The Lawyer as

Whistleblower: Confidentiality and Government Lawyers, 5 Geo. J. Legal

Ethics 291, 292 (1991). “Recognition of the attorney-client privilege for

governmental entities is said to encourage more open communication

between governmental officials and their lawyers, thereby enhancing the

quality of governmental decisionmaking. Denial of the privilege would put

9

This Court in Upjohn recognized that a corporation’s lawyers

cannot function effectively for a corporation without the information

provided by employees of the corporation, and that in the absence

of privilege such information might be withheld from the lawyers to

the detriment of the corporation, the legal system, and the public

generally. See Upjohn, 449 U.S. at 390-95. The same is true of

lawyers for government agencies. Legal advice is just as essential

to a government agency’s proper functioning as it is to a

corporation’s. Legal advice can be key to the agency’s

understanding of and obedience to the law, and key to the agency’s

formulation of sound public policy and sound legal regulations.

Legal advice for a government agency is particularly necessary in

the modern world’s increasingly complex and sometimes

counterintuitive laws governing agencies and their officials. As this

Court observed in Upjohn, "[i]n light of the vast and complicated

array of regulatory legislation,” efforts to comply with the law will

require "‘constantly go[ing] to lawyers to find out how to obey the

law,’ particularly since compliance with the law in this area is

hardly an instinctive matter." 449 U.S. at 392 (citations omitted).

There can be little dispute that this observation applies with at least

equal force to government agencies. At bottom, just as this Court

recognized in the context of corporate attorney-client

communications in Upjohn, application of the attorney-client

privilege in a governmental context promotes, rather than impedes,

the fair and accurate administration of justice.

C. The "Grand Jury Exception" Created Below To The

Governmental Attorney-Client Privilege Erodes The

Benefits Of The Privilege So Severely That Only The

Nation’s Highest Court Should Make That Decision

The panel majority below rejected the proposition that "an

entity of the federal government may use the attorney-client

privilege to avoid complying with a subpoena [issued] by a federal

grand jury." Pet. App. 5a. But just as limiting the privilege to

public entities at an unfair disadvantage in both criminal prosecutions and

civil litigation." 2 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence Second § 191, at 352 (1994).

10

members of a corporation’s “control group" would "frustrate[] the

very purpose of the privilege," Upjohn, 449 U.S. at 392, so too

would the decision of the court below to remove communications

from the governmental attorney-client privilege when they are

sought in a grand jury proceeding deny the essence of the privilege

for the governmental entity.

The panel majority assumed that “confidentiality will suffer

only in those situations that a grand jury may later see fit to

investigate." Pet. App. 19a.* But grand jury investigations of

governmental decisionmaking and decisionmakers are (unfortunate-

ly) no longer uncommon, and there can thus be considerable uncer-

tainty whether a future grand jury may someday be interested in

otherwise privileged communications. As this Court recognized in

Upjohn, "if the purpose of the attorney-client privilege is to be

served, the attorney and client must be able to predict with some

degree of certainty whether particular discussions will be protected."

Upjohn, 449 U.S. at 393; see also Jaffee v. Redmond, 116 S. Ct.

1923, 1932 (1996) ("We reject the balancing component of the

privilege . . . . Making the promise of confidentiality contingent

upon a trial judge’s later evaluation of the relative importance of the

evidentiary need for disclosure would eviscerate the

effectiveness of the privilege."); cf. Paul F. Rothstein, A Re-Evalua-

tion of the Privilege Against Adverse Spousal Testimony in the Light

of Its Purpose, 12 Int'l & Comp. L.Q. 1189, 1194 (1963)

(contrasting communications privileges, which require certainty of

applicability, with other privileges, which do not). Given the broad

® The court below also asserted that it did not

foresee any likely effect of our decision on the ability of a

government lawyer to advise an official who is contemplating a

future course of conduct. If the attorney explains the law

accurately and the official follows that advice, no harm can

come from later disclosure of the advice. ... [W]e cannot

conclude that advisers will be moved to temper the candor of

their remarks by the infrequent occasions of disclosure because

of the possibility that such conversations will be called for in the

context of a criminal prosecution.

Pet. App. 19a-20a (citation omitted).

1]

investigative mandate of federal grand juries, the uncertainty as to

whether otherwise protected communications may lose that

protection will frustrate the very purpose of the privilege.

Indeed, denial of the attorney-client privilege in the grand jury

context would be an unprecedented exception to the privilege.

There is no "grand jury exception” to the attorney-client privilege

for individuals or corporations. A grand jury exception to the

attorney-client privilege in the government context would cut a

gaping hole in the privilege and would have a significant chilling

effect on communications. Federal grand juries can investigate a

wide range of conduct or suspected conduct and are not limited by

relevancy rules applicable at trial. See, e.g., United States v.

Calandra, 414 U.S. 338, 343-44 (1974). Thus, a government

employee speaking with agency counsel about matters necessary to

the daily effective functioning of the agency would not necessarily

know if the matter could possibly be of interest one day to a federal

grand jury. The fear that it might, however, would undoubtedly

chill communications with agency attorneys. In addition, if the

attorney-client privilege did not apply to government agencies in the

context of federal grand jury investigations, every agency lawyer

could become a potential prosecution witness against agency

officials who have sought legal advice from that lawyer or against

government employees who have provided information necessary for

that lawyer to offer such advice.

As a result of both these implications, government officials and

employees would likely be deterred from seeking legal advice

regarding the legality of their conduct, which would have several

undesirable effects. First, it might encourage agency officials and

employees to remain deliberately ignorant of the law. Second, it

might deter some officials or employees from engaging in proper

and desirable conduct for fear that it might be illegal. Also, it

might cause government agencies to establish policies they might not

establish had officials obtained confidential legal advice, or to

engage in conduct they might have eschewed had officials consulted

government counsel about their proposed course of conduct. Those

government officials who do actually seek legal advice might decide

to withhold crucial information or otherwise refrain from free and

|

12

frank exploratory discussions, thus undermining the quality and

effectiveness of any legal advice that is ultimately given.

This uncertainty over the prospect of a future grand jury

investigation that would require disclosure of otherwise privileged

communications is compounded by other uncertainties raised by the

decision below. For example, unless this Court grants review and

announces a uniform rule, there will be uncertainty over whether

other courts will follow the court below and, if so, whether a future

grand jury will seek such communications in those jurisdictions.

There will be uncertainty over whether the rule announced by the

court below might also apply to other types of proceedings, such as

criminal trials or civil proceedings. The decision below also raises

substantial uncertainty as to whether the same exception would

apply to state or local government agencies and officials and, if so,

whether a future grand jury will seek such communications in a

jurisdiction that applies the "grand jury exception” created below to

state and local government agencies and officials. Cf. Paul F.

Rothstein, Zhe Proposed Amendments to the Federal Rules of

Evidence, 62 Geo. L.J. 125, 130-35 (1973) (urging general confor-

mity of privileges with state law to avoid uncertainty). These

uncertainties, each of which tends to undermine the very existence

of the privilege, see Upjohn, 449 U.S. at 393, present an

independent, compelling basis on which this Court should grant

review.

D. A “Grand Jury Exception" To The Governmental

Attorney-Client Privilege Pays Far Fewer Dividends to

Grand Jury Investigations Than The Court Below

Assumed

The decision below sought to distinguish application of the

privilege in a civil setting from application of the privilege in a

criminal setting by advancing "the general principle that the

government’s need for confidentiality may be subordinated to the

needs of the government’s own criminal justice processes.” Pet.

App. 15a (discussing United States v. Nixon, 418 U.S. 683 (1974)).

The panel majority also cited Nixon to support its conclusion that

"{e]ven if . . . the governmental attorney-client privilege ordinarily

13

applies in civil litigation," a different rule is warranted in criminal

proceedings. Pet. App. Ila.

At the outset, the panel majority’s conclusion rests on a

fundamental misreading of Nixon. This Court’s opinion in Nixon

expressly distinguished the qualified privilege at issue in that case

from absolute privileges, such as those that apply to military or

diplomatic secrets. 418 U.S. at 706-07. Nixon did not suggest that

the attorney-client privilege, which has long been regarded as an

absolute privilege, is subject to a balancing analysis. To the

contrary, the Court expressly acknowledged the existence of

“common-law ... privileges," including the privilege of “an

attorney" who "may not be required to disclose what has been

revealed in professional confidence." 418 U.S. at 709.

Furthermore, there was a much stronger showing of need for the

evidence in Nixon. In Nixon, the information at issue was not

available from any other source, because the relevant individuals

could not be called as witnesses in a criminal trial. In this case, by

contrast, the Independent Counsel has other sources for the

information he seeks. Because Mrs. Clinton has already testified

before the grand jury, for example, the Independent Counsel’s need

for counsel’s debriefing notes related to that testimony is far less

pressing than the Special Prosecutor’s need for the tapes in Nixon.

More importantly, even apart from the panel majority’s

misreading of Nixon, the decision below overestimates the potential

benefits to law enforcement from denial of a governmental attorney-

client privilege in the context of grand jury proceedings. First, it

is well-established that "[t]he privilege only protects disclosure of

communications; it does not protect disclosure of the underlying

facts by those who communicated with the attorney.” Upjohn, 449

U.S. at 395 (emphasis added). As such, recognition of the privilege

in the context of a grand jury subpoena does not and would not

prevent the Independent Counsel (or some future party seeking

grand jury evidence) from obtaining the underlying information

from sources other than attorney-client communications. See id. at

396 ("While it would probably be more convenient for the

Government to secure the results of petitioner’s internal

investigation by simply subpoenaing the questionnaires and notes

taken by petitioner’s attorneys, such considerations of convenience

14

do not overcome the policies served by the attorney-client

privilege."). In this case, for example, because Mrs. Clinton has

already testified before a grand jury, the Independent Counsel

presumably has had ample opportunity to question her about

underlying facts relevant to his investigation. What the attorney-

client privilege protects — in this as in any other context — are

confidential communications where there is an overarching public

benefit in “encourag[ing] full and frank communication between

attorneys and their clients [to] promote broader public interests in

the observance of the law and administration of saaieel Upjohn,

449 US. at 389.

Second, as this Court and others have recognized, the privilege

does not serve to suppress evidence; rather, the privilege serves to

encourage com nications from the client to the attorney that

otherwise might not have been uttered. Cf. Jaffee, 116 S. Ct. at

1929 ("Without a privilege, much of the desirable evidence to which

litigants . . . seek access . . . is unlikely to come into being. This

unspoken ‘evidence’ will therefore serve no greater truth-seeking

function than if it had been spoken and privileged").? Thus, even

apart from the significant adverse effect on governmental operations

that is likely to occur, denial of the governmental attorney-client

privilege for grand jury investigations provides no commensurate

benefits for the administration of justice.

° The privilege "keeps from the court only sources of information that

would not exist without the privilege.” Rice, supra, § 2:3, at 56-57

(quoting Developments in the Law: Privileged Communications, 98 Harv.

L. Rev. 1501, 1508 (1985)). As such, "when the attorney-client privilege

is properly understood, it reaches communications that are presumed to

have been made precisely because the privilege exists. . . . It is not

accurate, therefore, to say that the privilege operates in derogation of the

truth. . . . [I]t is important, in understanding the privilege, to focus on the

time period before the communications are made.” Stephen A. Saltzburg,

Corporate Attorney-Client Privilege in Shareholder Litigation and Similar

Cases: Garner Revisited, 12 Hofstra L. Rev. 817, 823-24 (1984); see also

Stephen A. Saltzburg, Privileges and Professionals: Lawyers and

Psychiatrists, 66 Va. L. Rev. 597, 600 n.9 (1980) (courts should recognize

the information-generating effect of a privilege).

15

Il. THE COURT OF APPEALS’ DECISION RAISES A

SERIOUS ISSUE OF FEDERALISM

The panel majority’s decision also raises significant federalism

concerns. Federal Rule of Evidence 501 provides that state law

governing attorney-client privilege does not apply in the federal

courts, except in civil actions and proceedings "with respect to an

element of a claim or defense as to which State law supplies the rule

of decision." Fed. R. Evid. 501. Accordingly, if state law

provides that communications between state government officials

and state government lawyers are protected by the attorney-client

privilege, that state law will not be applied in federal criminal or

grand jury proceedings or in federal civil actions that arise under

federal law. Any protection in those proceedings is entirely

dependent on the shape of federal privilege law. See generally Paul

F. Rothstein, Rules of Evidence for United States Courts and

Magistrates 139-40 (2d ed. 1996)."°

This case concerns the federal government rather than a state

government, and the panel majority itself recognized that "a standoff

between a federal grand jury and a city government[] implicates

potentially serious federalism concerns." Pet. App. 9a. But the

Court of Appeals’ reasoning denying privilege to the federal

government applies as well to state and local governments. Having

concluded (Pet. App. 18a) as a matter of federal common law that

"the strong public interest in honest government and in exposing

wrongdoing by public officials would be ill-served by recognition

© This Court has considered “the policy decisions of the States" in

determining the scope of privileges under federal law. Jaffee, 116 S. Ct.

at 1929. Many States recognize that the attorney-client privilege applies

to government agencies. See, e.g., Cal. Evid. Code § 951 comment (West

1995) ("public entities have a privilege insofar as communications made in

the course of the lawyer-client relationship are concerned"). See generally

1 Gregory P. Joseph & Stephen A. Saltzberg, Evidence in America: The

Federal Rules in the States, ch. 24 (1987 & Supp. 1994); Paul R. Rice,

Attorney-Client Privilege: State Law § 4.28 (1996). Of the States that have

adopted Uniform Rule of Evidence 502, most have declined to adopt

subsection (d)(6) of that Rule, which restricts somewhat the government’s

attorney-client privilege. Id.

16

of a governmental attorney-client privilege applicable in criminal

proceedings inquiring into the actions of public officials," it is

difficult to see how the court could reach a different result for state

and local officials.

As a result of the Court of Appeals’ decision, a state lawyer

who serves as counsel to a Governor (or, for that matter, any other

state or municipal lawyer) could find herself having to testify as to

otherwise privileged communications as an adverse witness in either

a federal criminal or federal grand jury proceeding. Despite the

State’s own determination that the benefits of the governmental

attorney-client privilege outweigh its costs, state and local officials

will thus be deterred from seeking legal advice, and their

communications with counsel will be constrained. Cf. Jaffee, 116

S. Ct. at 1930 ("Denial of the federal [psychotherapist-patient]

privilege therefore would frustrate the purposes of the state

legislation that was enacted to foster these confidential communica-

tions."). This could well result in significant damage to the

effective functioning of State governments.

CONCLUSION

For the reasons stated in this brief and in the Petition, the

Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Robert A. Long, Jr.

Professor Paul F. Rothstein Ivan K. Fong*

GEORGETOWN UNIVERSITY COVINGTON & BURLING

LAW CENTER 1201 Pennsylvania Ave., N.W.

600 New Jersey Ave., N.W. P.O. Box 7566

Washington, D.C. 20001 Washington, D.C. 20044-7566

(202) 662-9094 (202) 662-6000

Counsel for Amici Curiae

June 2, 1997 * Counsel of Record

APPENDIX

Professor Paul F. Rothstein is Professor of Law at Georgetown

University Law Center. Previously in private practice in

Washington, D.C., he is the author of, among other publications,

Rules of Evidence for United States Courts and Magistrates (2d ed.

1996); Evidence: Cases, Materials and Problems (1986); and

Evidence in a Nutshell (2d ed. 1981) (3d ed. forthcoming Sept.

1997). Professor Rothstein served as a consultant (intermittently

from 1973 to 1981) to the Judiciary Committee subcommittees of

the U.S. Senate and U.S. House of Representatives concerned with

criminal law reform and the Federal Rules of Evidence. He has

chaired both the Evidence Section of the Association of American

Law Schools ("AALS") and the Committee on Rules of Criminal

Procedure and Evidence of the Criminal Justice Section of the

American Bar Association ("ABA"), and has lectured for and

contributed to publications of the Federal Judicial Center.

Professor Ronald J. Allen is John Henry Wigmore Professor of

Law at Northwestern University School of Law. Professor Allen is

the co-author of Constitutional Criminal Procedure: An Examination

of the Fourth, Fifth and Sixth Amendments and Related Areas (2d

ed. 1991) and An Analytical Approach to Evidence (1989).

Professor Margaret A. Berger is Suzanne J. and Norman Miles

Professor of Law at Brooklyn Law School. She is a co-author of

Weinstein’s Evidence Manual (1996); Cases and Materials on

Evidence (1988); and Weinstein on Evidence (1975). Professor

Berger served as reporter of the Advisory Committee on the Federal

Rules of Evidence from 1993 to 1996.

Professor William J. Bridge is Associate Professor of Law at

Southern Methodist University School of Law. He has taught

Evidence, Professional Responsibility, and Criminal Procedure since

1978. Professor Bridge lectures regularly to the Federal Bar

Association and co-authors a quarterly synopsis on developments in

evidence.

Professor Paul C. Giannelli is Albert J. Weatherhead III &

Richard W. Weatherhead Professor of Law at Case Western

Reserve University Law School. His publications include Scientific

(ia)

2a

Evidence (2d ed. 1993) (with Imwinkelried); Ohio Evidence (1996)

(with Snyder); and Courtroom Criminal Evidence (2d ed. 1993)

(with Imwinkelried, et al.). Professor Giannelli is a former chair

of the AALS Evidence Section and serves as counsel to the Ohio

Supreme Court Rules Advisory Committee.

Professor Stephen Gillers is Professor of Law at New York

University School of Law, where he teaches courses in evidence and

professional responsibility and has taught civil procedure and federal

courts. He is author of Regulation of Lawyers: Problems of Law

and Ethics (4th ed. 1995).

Professor Laird C. Kirkpatrick is Hershner Professor of

Jurisprudence at the University of Oregon School of Law. His

publications include Evidence Under the Rules (3d ed. 1996) (with

Mueller); Oregon Evidence (3d ed. 1996); Modern Evidence (1995)

(with Mueller); Federal Evidence Second (1994) (with Mueller); and

Evidence (1994) (with Mueller). He served as an Assistant U.S.

Attorney from 1978 to 1980 and is chair-elect of the AALS Evi-

dence Section.

Professor David P. Leonard is Professor of Law and William

M. Rains Fellow at Loyola Law School, Los Angeles. His

publications include The New Wigmore: A Treatise on Evidence:

Selected Rules of Limited Admissibility (1996). He is a former chair

of the AALS Evidence Section.

Professor Miguel A. Méndez is Adelbert H. Sweet Professor

of Law at Stanford Law School. His publications include

Evidence—The California Code and the Federal Rules: A Problem

Approach (1995) and California Evidence with Comparison to the

Federal Rules of Evidence (1993). He has taught evidence since

1978 and has tried numerous civil and criminal cases.

Professor Roger C. Park is Distinguished Professor of Law at

Hastings College of Law, University of California and the author

of, among other publications, Cases and Materials on Evidence (7th

ed. 1992) (with Kaplan & Waltz). Professor Park is a former chair

of the Evidence Section of the AALS.

Professor Myrna S. Raeder is Professor of Law at

Southwestern University School of Law and is the author of Federal

Le

Dead deri aie eastce io 0 enon Santon

3a

Pretrial Practice (2d ed. 1995). Professor Raeder served as a

Special Assistant U.S. Attorney in 1972-73 and is a former chair of

the Rules of Criminal Procedure and Evidence Committee of the

ABA Criminal Justice Section. She currently serves as chair of the

AALS Evidence Section and is the ABA’s advisor to the drafting

committee revising the Uniform Rules of Evidence for the National

Conference of Commissioners on Uniform State Rules.

Professor John W. Reed is Thomas M. Cooley Professor of

Law Emeritus at the University of Michigan Law School. He has

taught and published in the field of evidence for over five decades

and is chair of the committee that prepares the evidence section of

the Multistate Bar Examination.

Professor Mark Reutlinger is Professor of Law at Seattle

University School of Law and is the author of Evidence: Essential

Terms and Concepts (1997) and Cases and Materials on the Law of

Evidence (1970).

Dean Leo M. Romero is Dean and Professor of Law at the

University of New Mexico School of Law. He served as a Special

Assistant Attorney General for the State of New Mexico in the

1980s, representing the State in its assertion of attorney-client,

work-product, and executive privileges.

Professor Stephen A. Saltzburg holds the Howrey Chair of

Trial Advocacy, Litigation, and Professional Responsibility at

George Washington University Law School. He is the author of,

among other publications, Evidence: The Objection Method (1997)

(with Prater, Arguello, Martin & Capra); Federal Rules of Evidence

Manual (6th ed. 1994) (with Martin & Capra); Evidence in America

(1987) (with Joseph); A Modern Approach to Evidence (2d ed. 1982)

(with Lempert); and American Criminal Procedure (Sth ed. 1996)

(with Capra). Professor Saltzburg served on the Advisory

Committee for the Federal Rules of Evidence from 1993 to 1995

and was Deputy Assistant Attorney General, Criminal! Division,

U.S. Department of Justice from 1988 to 1989.

Professor Peter Tillers is Professor of Law and former

Director, International Seminar on Evidence in Litigation, at

Yeshiva University, Cardozo School of Law. His publications

4a

include 1 & 1A Wigmore on Evidence (rev. ed. 1983) and

Probability and Inference in the Law of Evidence: The Uses and

Limits of Bayesianism (1988) (with E. Green). Professor Tillers is

a former chair of the Evidence Section of the AALS.

ie

Se ne TE Vee ee

Shinn +