Principles, Politics and Privilege: How the Crime-Fraud Exception Can Preserve the Strength of the Attorney-Client Privilege for Government Lawyers and Their Clients

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Introduction   I. Attorney-Client Privilege Background and Policy        Justifications        A. Historical Background and Constitutional           Justifications        B. Attorney-Client Privilege Promotes Public Policy           Through Disclosure and Effective Legal Advice        C. As an Entity Privilege        D. Limitations on the Attorney Client Privilege        E. Crime-Fraud Exception  II. Dispute over Whether the Government Attorney-Client        Privilege Should Exist in a Federal Grand Jury Proceeding        A. Declining to Extend the Government Attorney-Client           Privilege in the Federal Grand Jury Context           1. In re Grand Jury Subpoena Duces Tecum           2. In re Lindsey           3. In re A Witness Before the Special Grand Jury           4. Categorical Arguments Against Extending the              Government Attorney-Client Privilege in the              Federal Grand Jury Context              a. Corporate Privilege Rationale Does Not                 Extend to the Government Context              b. Open and Honest Government Is the                 Paramount Public Interest              c. Client Candor Is Not Increased Through                 Preservation of the Privilege              d. Other Privileges Can Provide Sufficient                 Protection to Confidential Materials        B. Extending the Government Attorney-Client Privilege           in the Federal Grand Jury Context           1. In re Grand Jury           2. In re County of Erie           3. Categorical Arguments for Government Attorney-Client              Privilege in Federal Grand Jury Context              a. Corporate Analogy Is Relevant to a                 Consideration of the Government Attorney-Client                 Privilege              b. Denying Elected Officials Open Discussions                 About Pending Litigation with Counsel Would                 Be Detrimental to Society as a Whole              c. Full and Frank Disclosure Is Just as Important                 in the Public Context as It Is in the Private                 Context              d. Other Privileges Do Not Deal with the Unique                 Requirements of Attorney Confidentiality   III. Resolving the Unclear Standard for the Government         Attorney-Client Privilege in the Criminal Context         A. The Client of a Government Attorney Is the            Organization They Serve         B. The Underlying Principles Support the Privilege in the            Federal Grand Jury Context         C. The Crime-Fraud Exception Is Sufficient to Protect            the Public Interest Conclusion 

[W]e can attest to the vital importance of candor and confidentiality in the Solicitor General's decisionmaking process.... Our decisionmaking process require[s] the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality. (1)


Government lawyers are regulated by the ethical rules of the state in which they are members of the bar. (2) In most states, professional responsibility rules of confidentiality do "not distinguish between government and private sector lawyers." (3) As a result, government lawyers are under an ethical obligation to comply with their clients' instructions. (4) The scope of protections provided by asserting the attorney-client privilege in the face of a grand jury subpoena, however, is not clear. (5) Given that over 40,000 lawyers serve our federal government in some capacity, a clear ethical obligation should be provided. (6) An expanding government in the current regulatory regime will require more lawyers to provide counsel to government officials so the government can "function efficiently and effectively. …


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