Saturday, March 7, 2015

Is it the fox guarding the henhouse when a lawyer reviews her client's documents to determine which can be disclosed?

Two weeks ago, ex-Governor Kitzhaber's defense lawyer, Janet Hoffman, went on the offensive, calling for an independent investigation of how Kitzhaber's emails were leaked to the press. Hoffman also sought to block the Department of Administrative Services (DAS) from complying with a federal subpoena until she had a chance to review the documents herself. The Oregonian reports that DAS has agreed to give her until March 16 to file a motion in federal court to quash the subpoena.

But is what Hoffman asked for in the first place crazy? It might sound like the fox guarding the henhouse to have a client's lawyer go through the client's documents to decide which can be produced to the other side, but it's actually the normal mode of business in civil litigation. Say plaintiff sues defendant for employment discrimination. Each side might seek documents from the other. Each side's lawyer goes through the discovery requests and the documents to determine which are responsive to the requests, and of those, which will be withheld on privilege or other confidential grounds. Those that are withheld are identified on a privilege log, which lists the documents by title, author, date, and basis for withholding (i.e., attorney-client privilege or attorney work product). The privilege log allows for some limited basis of challenging the withholding.*

* For example, if a party claimed the attorney-client privilege over a document that was neither written by a lawyer nor sent to one, there would be reason to question the validity of the assertion of the privilege.

While there are probably isolated instances where attorneys intentionally engage in discovery misconduct, this system seems to work in general because lawyers have a good reason not to destroy or conceal documents. Lawyers do have a duty to represent their clients zealously, but within the rules. A lawyer who destroys or conceals documents for a client risks being disbarred or worse, and at the end of the day, it's probably not worth it for the short term gain to this client.

(When I was a brand new associate at a law firm, at the New Associates' Retreat, a partner told us the story of a matter where an unnamed client had told the lawyer about the existence of a very damaging document. When the lawyer went over to examine the document, the client said that the document was gone. The lawyer said, "I wish you hadn't done that. Now we're going to have to resign as your lawyers." It turned out that the client hadn't destroyed the document but was hoping to get away with not producing it. The bluff having been called, the client had no choice but to turn it over to the lawyer. The lesson of the story for us was that no client was worth risking the firm's reputation or our law licenses.)

Of course, the federal subpoena in question stems from a criminal investigation, not civil litigation, and it is the case that where the government is involved as a litigant, particularly in criminal cases, the usual approach sometimes gives way to one where different teams of lawyers play roles, with one group informally known as the "dirty" team examining potentially privileged documents and segregating those from the unprivileged ones. A separate "clean" team that has not been exposed to the privilege documents carries out the prosecution. (For examples, see here and here.)

We might compare the situation in the Kitzhaber/Hayes saga to the new revelations about former Secretary of State Hillary Clinton's use of a private email account for her official business. There is a certain degree of similarity between Clinton and Kitzhaber in terms of what each did, and perhaps the reasons that skeptics might suspect as to why they did so. But there is an important difference between having Janet Hoffman go through Kitzhaber's emails for privilege review, versus Clinton's staff reviewing the documents, with what survives their review now being turned over to the State Department.

The difference is that Hoffman, while serving as Kitzhaber's lawyer, is clearly independent in the sense that she has a professional existence that does not depend on Kitzhaber; if anything, he at this point is far more dependent on her than the other way around. Clinton's staffers, on the other hand, were and are, in a sense, tied to her political fortunes, and so it would be unreasonable to expect the same level of independence from them.

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