Wednesday, February 18, 2015

The recent Willamette Week story on emails, including apparently privileged ones ...

Reporter Nigel Jaquiss of Willamette Week has been publishing scoop after scoop on the Kitzhaber-Hayes matter, and his latest story, which is online and in print today, gives an inside look at some of the ex-Governor's and ex-First Lady's emails that WW and The Oregonian have been fighting to get access to. Jaquiss weaves a picture of co-mingled finances, a Governor's fiance who refused to abide by the ethical guidelines set forth by the Governor's staff, and broad and grandiose ambitions on the part of Cylvia Hayes.

The end of the article delves into a different set of emails between Kitzhaber and attorney Steve Janik, who was representing Kitzhaber with respect to the investigation opened by the state Ethics Commission, quoting liberally from an email and a response.

Having gone through law school and practiced law for a short stint before getting into full-time law teaching, I still have seared into my brain the importance of the attorney-client privilege. It exists to ensure that the client will feel free to reveal all relevant information to his/her attorney without needing to worry about whether those revelations will become public. This in turn enables the lawyer to provide the most accurate legal advice to the client.*

* There are exceptions. A client's statement about future crimes that he/she intends to commit would not be privileged, because the lawyer is not there to help the client plan new wrongdoings, only to help defend against alleged past wrongs.

Therefore, whenever I see a communication between a lawyer and his/her client, I immediately wonder, is this privileged material? It's for that reason that I'm not going to get into the substance of the emails between Kitzhaber and Janik and what they might mean in terms of the mounting investigations against the ex-Governor and his fiance.

Oregon Revised Statute 40.225 codifies Evidence Rule 503, governing attorney-client privilege, and states in relevant part:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client ...
(emphasis added). I've bolded "any" because I've seen some arguments floating around to the effect that the privilege only protects the attorney from being forced by a court to disclose the confidential communications. That can't be right, because when attorneys inadvertently disclose privileged material to opposing counsel during discovery, they are sometimes able to prevail upon the court to force the opposing counsel to return the privileged documents. See, e.g., Tinn v. EMM Labs, Inc., 556 F. Supp. 2d 1191 (D. Or. 2008) (applying Oregon law); State v. McGrew, 46 Or. App. 123 (Or. Ct. App. 1980). These are not cases in which lawyers used the privilege to shield themselves from courts; rather, they used the privilege to persuade a court to force another party to return privileged materials.

As the above discussion implies, occasionally privileged material gets disclosed by mistake to the other side. The mistake lies in not recognizing the privileged nature of the material during document review. In this instance, while it's not entirely clear how WW got the emails, it seems like they were leaked by someone with access to them.

I mention this possibility (probability?) because one might analogize the situation to ones where whistleblowers send classified government documents to the press in order to expose perceived government wrongdoing. RAND Corp. analyst Daniel Ellsberg famously copied most of the so-called Pentagon Papers* to send to the New York Times first, and later to the Washington Post.

* This was a secret, multivolume history of the United States' embroilment in the Vietnam War prepared by the Defense Department. The government claimed that irreparable harm would follow its publication, but in fact, it turned out that the harm stemmed from embarrassment.

More recently, former Booz Allen Hamilton contractor Edward Snowden gave author/activist Glenn Greenwald a huge trove of classified documents taken from the National Security Agency, which formed the basis of articles that Greenwald wrote.

There is a certain similarity where the whistleblower and the publisher know that the documents are classified government material (in the Ellsberg/Snowden examples) or attorney client privileged (in the current matter), but can argue that the public is entitled to know what the government wants to keep secret, particularly where the documents may reveal government misconduct. I'm not sure how far this analogy goes, however, because there is a difference: attorney client privileged materials reveal legal advice and strategy. To the extent they reveal past misconduct, it is a by-product of the need to disclose relevant facts to obtain accurate legal advice.

There's one other oddity about this story. The WW story hit the newstands early this morning, and the online version was posted one minute after midnight. Yet, as of 8:53 p.m. (i.e., nearly 21 hours later), neither Kitzhaber nor his attorneys had responded to inquiries from the Oregonian. (I say this based on the time stamp of the updated version of the Oregonian's story, which still states that there was no response.) You would think that even if they had nothing else to say, they would be screaming about the inappropriateness of publishing attorney client privileged materials.

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