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.

Ex-Gov. Kitzhaber's defense lawyer pushes back regarding the leaked privileged communications

Photo by Stephen McKay

Earlier, I blogged about how Willamette Week published what appeared to me to be privileged emails between ex-Governor Kitzhaber and his attorney, Steve Janik. In the absence of some indication that Kitzhaber had waived the attorney-client privilege, I was not comfortable discussing the substance of those emails.

Now, Kitzhaber's criminal defense lawyer, Janet Hoffman, has opened fire with a strong letter charging that either a Department of Administrative Services (DAS) employee unlawfully accessed the servers for the purpose of copying the emails; or some outside person hacked DAS's servers. Hoffman argues "[i]n either case, the unauthorized access and subsequent theft constitute a Class C felony pursuant to ORS 164.377(2)(c) ... " It is necessary, she continues, to open an investigation as to how the emails were leaked to WW - and, the kicker is that Attorney General Ellen Rosenblum has a conflict of interest that prevents her office from conducting said investigation because she is married to the publisher of WW. (As it turns out, the top DAS official has already requested that the Oregon State Police investigate the source of the leaks, and two DAS employees have been on paid leave.)

It's important to recognize that Kitzhaber has had at least three distinct attorney-client relationships, one of which, of course, is with Hoffman. Then there is Steve Janik, who appears to be representing Kitzhaber in his individual capacity with respect to the various investigations. And finally, there is Liani Reeves, who served as Kitzhaber's general counsel.

On page 2, Hoffman's letter mentions the publication of Kitzhaber's email correspondence with Janik in the WW article, as well as earlier apparent disclosures. (Of those, one article in the Oregonian by Laura Gunderson appears to have relied on human sources, not emails - if so, Kitzhaber would have a hard time maintaining the privilege, since someone - the source - must have been told the contents of the conversation between Kitzhaber and his lawyer. Once the attorney-client communication is shared with anyone else (other than someone working for the lawyer), the privilege has likely been waived.)

In any event, since Hoffman zeroes in on the disclosure of privileged communications from Kitzhaber's personal email account, not the gmail account that he set up for his official account. Hoffman asserts in her letter that Kitzhaber "repeatedly communicated with his attorneys through his private gmail account to obtain legal advice concerning issues now under investigation by your office."

The limiting of her complaint to the attorney-client communications on the private gmail account is interesting because it would seem not to apply to any communications between Reeves and Kitzhaber, which presumably would have been sent via the official email (and certainly should have been if they weren't). As General Counsel to the Governor, Reeves represented Kitzhaber in his official capacity, which is important for at least two reasons.

First, it may mean that it is the Office of the Governor - and not the individual person who held the office at one time - that holds the privilege. This is the general rule for corporations and other non-human entities. For example, if the officers of corporation X end up being investigated for misconduct and get fired by the Board of Directors, to be replaced by new officers, any privilege over communications that took place between the former officers and the corporation's lawyers can be waived by the new officers, even though the new officers weren't the ones who took part in those conversation. If this rule similarly applies to state offices, then it would be Kate Brown - as Governor of Oregon - who decides whether to assert or to waive the privilege as to communications between Reeves and Kitzhaber.

Second, at least one federal appellate court (the level of court right below the U.S. Supreme Court) has concluded that privileged communications between government lawyers and public officials, while still entitled to some level of protection against compelled disclosure, are different from privileged communications between lawyers and private entities. That case, which arose out of the Clinton Administration's efforts to assert the attorney-client privilege over a conversation between then-First Lady Hillary Clinton and two White House lawyers:

And the Court recognized that "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Id. at 393, 101 S.Ct. at 684. Nevertheless, we believe that important differences between the government and nongovernmental organizations such as business corporations weigh against the application of the principles of Upjohn in this case. First, the actions of White House personnel, whatever their capacity, cannot expose the White House as an entity to criminal liability. (No one suggests that any of the conduct under investigation by the OIC could expose the White House to civil liability.) A corporation, in contrast, may be subject to both civil and criminal liability for the actions of its agents, and corporate attorneys therefore have a compelling interest in ferreting out any misconduct by employees. The White House simply has no such interest with respect to the actions of Mrs. Clinton. 

We also find it significant that executive branch employees, including attorneys, are under a statutory duty to report criminal wrongdoing by other employees to the Attorney General. See 28 U.S.C. § 535(b) (1994). Even more importantly, however, the general duty of public service calls upon government employees and agencies to favor disclosure over concealment. The difference between the public interest and the private interest is perhaps, by itself, reason enough to find Upjohn unpersuasive in this case. The importance of the public interest in questions of disclosure versus privilege is not unique to this case, for it was a key reason the Supreme Court rejected the concept of work product immunity for accountants: 

By certifying the public reports that collectively depict a corporation's financial status, the independent auditor assumes a public responsibility transcending any employment relationship with the client. The independent public accountant performing this special function owes ultimate allegiance to the corporation's creditors and stockholders, as well as to the investing public. This 'public watchdog' function demands that the accountant maintain total independence from the client at all times and requires complete fidelity to the public trust. To insulate from disclosure a certified public accountant's interpretations of the client's financial statements would be to ignore the significance of the accountant's role as a disinterested analyst charged with public obligations. 

Arthur Young, 465 U.S. at 817-18, 104 S.Ct. at 1503. The public responsibilities of the White House are, of course, far greater than those of a private accountant performing a service with public implications. We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials. We also believe that to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets.

The key takeaways here are that (1) there are multiple attorney-client relationships here, and it is important to keep them distinct in terms of who can claim the privilege resulting from that relationship; (2) defense attorney Janet Hoffman is playing hardball; and (3) the original investigation of Kitzhaber and Hayes is starting to reach out like an octopus in unpredictable directions. Stay tuned.