The Federalist Society’s 1997 National Lawyers Convention

Professional Responsibility

Breakout Session

Thursday, October 16, 1997

At this year's National Lawyers Convention, the Professional Responsibility Group hosted a lively discussion on th question, "Who does the government lawyer represent?". The first panelist, the Honorable C. Boyden Gray, former White House Counsel under President Bush, discussed In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied, 117 S. Ct. 2482 (1997), in which the Eighth Circuit held that the confidentiality of Mrs. Clinton's communications with government lawyers concerning the Whitewater investigation was not protected by the attorney-client privilege. The government lawyers' only client is the federal agency that they represent, including persons acting in their official capacity with respect to that agency. In In re Grand Jury, the government lawyers' discussions with Mrs. Clinton regarding nonofficial conduct constituted discussions with a person other than the government lawyers' "client," and thus, the discussions were not privileged.

Mr. Gray suggested that government officials should retain private lawyers for private matters and government lawyers for official matters. He stated that the taxpayer should not be forced to pay for a government lawyer who provides legal services to a government official on a private matter.

Mr. Gray explained that investigations of an official's conduct that took place prior to that official entered office are generally private matters and should be handled by a private lawyer. When a government official is being investigated on a matter that encompasses both private and official conduct, Mr. Gray opined that government lawyers may provide supervisory services, but should require private lawyers to render services for those matters that are more private than official in nature.

The Honorable Bernard Nussbaum, former White House Counsel under President Clinton, criticized the In re Grand Jury decision as unrealistic. Mr. Nussbaum stated that numerous issues entail both private and public conduct, and the attorney-client privilege should be broad enough to encompass both types of issues when dealing with an investigation of a government official. Mr. Nussbaum opined that the government lawyer's representation of the government agency should be viewed broadly to encompass representation of a government official who is the subject of an official investigation. This is because, Mr. Nussbaum argued, an investigation, even if it is limited to conduct that occurred before the official took office, will necessarily affect the official's governmental conduct. If the government lawyer's representation of the agency is viewed to encompass discussions with the government official only some of the time, thus protecting the confidentiality of those discussions only some of the time, Mr. Nussbaum opined that the effectiveness of the government official and of the government lawyer will be seriously compromised.

Further, Mr. Nussbaum reflected that during the last thirty years he has witnessed the increased criminalization of policy issues between the President, of one political party, and the Congress, of the other political party. In this hyper-investigative environment, Mr. Nussbaum stated that it is critical that the government lawyer's fundamental duty of confidentiality to the government official to be respected.

Steve Ryan, of Brand, Lowell & Ryan, agreed with Mr. Nussbaum that government officials are currently facing too many investigations. A government official who is investigated by a House committee, a Senate committee, a United States Attorney, and an independent counsel cannot afford the private legal representation necessary for his defense. After the narrowing of the attorney-client privilege by In re Grand Jury, government lawyers will no longer consult with the government officials, will not take notes, and will cede even more issues that arguably concern official conduct to private lawyers. Mr. Ryan opined that the result reached in In re Grand Jury could have been avoided if Independent Counsel Kenneth Starr had exercised his prosecutorial discretion in favor of the attorney-client privilege and had not sought a judicial ruling relating to the government lawyers' notes.

Kevin Sabo, general counsel to the Senate Committee on Commerce, Science and Transportation responded that the scope of the attorney-client privilege must be evaluated in light of the congressional investigating committee's, or the independent counsel's, right to know. Traditionally, Congress, the independent counsel, and the White House counsel have been able to negotiate discovery issues and facilitate the provision of sufficient evidence without opening all Oval Office files. Mr. Sabo opined that it may have been the White House Counsel's failure to cooperate with respect to Mrs. Clinton's communications with her government lawyers that forced Independent Counsel Starr to seek judicial assistance in obtaining documents relevant to his investigation.

Mr. Odom then asked the panelists what limiting principle should be used to determine when an issue sufficiently involves or affects official conduct to warrant representation by a government lawyer. Mr. Nussbaum answered that when a congressional committee or an independent counsel is appointed to investigate a matter, that matter is per se official, and should justify the use of government lawyers by the official being investigated. Mr. Gray suggested that an approach based on the nature of the conduct investigated, instead of the status of the investigating body, was more appropriate.

Mr. Gray and Mr. Nussbaum both agreed, however, that the trend to criminalize policy differences is counterproductive to the efficient operation of government. Nonetheless, the reality of current investigations of government officials and the inevitability of future investigations accentuates the need to define clearly the limits of a government lawyer's representation of a government official.