Academic journal article Albany Law Review

The Governmental Attorney-Client Privilege: Whether the Right to Evidence in a State Grand Jury Investigation Pierces the Privilege in New York State

Academic journal article Albany Law Review

The Governmental Attorney-Client Privilege: Whether the Right to Evidence in a State Grand Jury Investigation Pierces the Privilege in New York State

Article excerpt

I. INTRODUCTION

Whether a New York State government official represented by a government attorney can invoke the evidentiary attorney-client privilege when faced with a state grand jury subpoena has not been explicitly addressed by either New York State courts or the New York State Legislature. If a New York State grand jury were to subpoena the Governor's chief legal counsel to testify regarding private communications with the Governor, then it is currently uncertain whether the Governor's chief legal counsel would be able to avoid testifying based on the evidentiary attorney-client privilege. If New York State follows the rulings of the United States Courts of Appeals for the Eighth, District of Columbia, and Seventh Circuits, (1) then the Governor's chief legal counsel would be unable to successfully invoke the evidentiary attorney-client privilege and would be compelled to testify. However, if New York State follows the ruling of the Court of Appeals for the Second Circuit, (2) then the Governor's chief legal counsel would be permitted to invoke the evidentiary privilege. The recent circuit split among the United States Courts of Appeals (3) magnifies the uncertainty regarding whether the governmental attorney-client privilege (4) exists in the federal grand jury context. It should be noted, however, that governmental entities are generally afforded the protections of the attorney-client privilege outside of the grand jury context. (5)

The existence of the evidentiary attorney-client privilege for federal government entities represented by federal government attorneys has been debated by academics in both the civil (6) and criminal contexts. (7) This Comment, however, focuses on whether New York State supports the extension of the evidentiary attorney-client privilege to state government officials represented by government attorneys who are under investigation by a New York State grand jury. (8) Part II of this Comment explains attorney-client confidentiality as it currently exists in New York State by describing the two bodies of law governing confidences between attorneys and clients: the ethical obligation set forth by the legal profession (9) and the evidentiary attorney-client privilege set forth by the judicial and legislative branches of government. (10) Even though this Comment does not examine an attorney's ethical obligations in state criminal proceedings, a brief discussion of the duty of confidentiality is necessary in ascertaining the importance that the legal profession ascribes to client confidences, which are at the heart of the evidentiary attorney-client privilege. Part III analyzes the United States Courts of Appeals cases that created the current split among the circuits. In determining which circuit New York State is inclined to follow, Part IV explores the competing interests between the need to protect client confidences and the public's right to know every man's evidence. Part V concludes that New York State government officials represented by government attorneys should be afforded the protections of the evidentiary attorney-client privilege in state grand jury proceedings based on New York State's high regard for attorney-client confidentiality when faced with the public's right to know.

II. THE ATTORNEY-CLIENT PRIVILEGE IN NEW YORK STATE: BODIES OF LAW GOVERNING CONFIDENTIALITY BETWEEN ATTORNEYS AND CLIENTS (11)

Confidences between an attorney and his client are governed in New York State by both the ethical obligation (12) and the evidentiary attorney-client privilege. (13) The ethical obligation of an attorney regulates his moral responsibilities and is set forth by the legal profession. (14) In New York State, the New York Code of Professional Responsibility enacted by the New York State Bar Association governs the moral and ethical responsibilities of attorneys admitted to practice law. (15) In contrast, the evidentiary attorney-client privilege, enacted by both the legislature and judiciary, governs the admissibility of attorney-client confidences in adjudicative proceedings and is set forth by both common law principles and statutory provisions. …

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