Oregonian's account of ex-Gov. Kitzhaber's final days in office

The Oregonian has a gripping story about the twists and turns of John Kitzhaber's last days in office, sourced largely from unnamed advisors. It provides a detailed, behind the scenes peek at why Kitzhaber went back and forth about whether to resign from office. Not surprisingly, there was a sharp divide between the political advisors, who felt that there was no choice but to resign, and the lawyers, who felt that an offer to resign was a valuable bargaining chip to use with state and federal investigators:

Rival factions of his team contributed to his uncertainty with compelling but contradictory advice. For months heading to the end, his political advisers were increasingly pointed: The love of his life was political poison and would bring him down unless he distanced himself from her and disclosed everything about her business affairs. 

The attorneys argued just as adamantly that transparency was a luxury the governor could no longer afford.  Above all, the attorneys told him, don't quit. His job was his most important bargaining chip for likely settlement negotiations of ethical and perhaps criminal accusations.

Last month, Willamette Week published a story based in part on leaked emails between Kitzhaber and his lawyers (the same lawyers giving the advice in the quoted paragraph above), raising a question of whether the paper was relying on attorney-client privileged materials. This portion of the Oregonian story, on the other hand, appears to be sourced entirely through interviewed subjects. Unless the sources were Kitzhaber or his lawyers, it would mean that someone else was privy to those communications between the ex-Governor and his legal counsel.

This would mean that those particular discussions appear to be not privileged, because either the lawyers were providing this advice to Kitzhaber in front of other persons, or they provided it to him in private, and either they or he subsequently shared it.

ORS 40.225 (Oregon Evidence Rule 503) defines a "confidential communication" as:

[A] communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

Typically, the "in furtherance of the rendition of professional legal services" would mean paralegals, legal assistants, law clerks, or other non-lawyers working for the lawyer. "[T]hose reasonably necessary for the transmission of the communication" might be people similarly situated to the client, except instead of the relationship of furthering the providing of legal advice, is limited to the "transmission of the communication." It's hard to see how political advisors would fit into that category.

Courts can be sticklers about the need to protect the confidentiality of attorney-client communications. This came up during Martha Stewart's prosecution for false statements and obstruction of justice, when she forwarded an email from her attorney to her daughter. Although she was ultimately able to prevent the government from introducing that email into evidence because it was ruled to be attorney work product*, the trial judge agreed that the attorney-client privilege had been lost by sending it to her daughter: "Stewart's June 23 e-mail to Nussbaum was clearly protected by her attorney-client privilege [snip] until she waived that privilege by forwarding a copy of the e-mail to her daughter...."

* Work product is a related kind of protection than the attorney-client privilege, but somewhat broader in scope. The attorney-client privilege is essentially inviolate, whereas work product can, on rare occasions, be overcome. However, work product can be shared more freely than privileged materials.

Prior restraints and leaked attorney-client privileged materials

The New York Times edition on the day of the Pentagon Papers decision

One of the interesting nuggets in the Oregonian's Friday story about ex-Governor Kitzhaber's lawyers' efforts to fight the FBI subpoena is the following:

McDermott demanded that the state Justice Department, headed by Attorney General Ellen Rosenblum, file a temporary restraining order to block the publication by Willamette Week of emails Kitzhaber had exchanged with McDermott's partner, Stephen Janik. Rosenblum is married to the weekly paper's publisher, Richard Meeker.

A court order that blocks a newspaper (or anyone else) from publishing something is called a "prior restraint." Because of the First Amendment, most prior restraints are unconstitutional. In The Pentagon Papers Case (1971), the Supreme Court refused to stop the New York Times and the Washington Post from printing excerpts from a classified, 47-volume historical study of the United States' entry into the Vietnam War. The two papers had received the classified material from a whistleblower at RAND Corp. named Daniel Ellsberg. The Supreme Court explained:

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.

Other cases have suggested that it would take grave, irreparable harm to national security or other such equivalent damage to justify a prior restraint. See Near v. Minnesota (1931) (noting that critical information such as "sailing dates of transports or the number and location of troops" might be subject to a prior restraint).

With that in mind, let's take a look at Oregon's attorney-client privilege law, ORS 40.225. Subsection 2 of that statute states:

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:

(a)Between the client or the clients representative and the clients lawyer or a representative of the lawyer;

(b)Between the clients lawyer and the lawyers representative;

(c)By the client or the clients lawyer to a lawyer representing another in a matter of common interest;

(d)Between representatives of the client or between the client and a representative of the client; or

(e)Between lawyers representing the client.

(emphasis added). On its face, the statute appears to authorize a prior restraint against publication of attorney-client privileged material. But would such a court order be constitutional?

In State ex rel. Sports Management News v. Nachtigal (1996), the Oregon Supreme Court ruled that an analogous statute, which permitted courts to block publication of "alleged trade secrets," could not authorize trial courts to issue prior restraints in violation of the Oregon Constitution's free speech clause (i.e., Oregon's equivalent of the First Amendment). The court explained:

A statute that is written in terms that focus on the content of speech is invalid on its face, unless it fits "wholly" within some historical exception. [citations omitted] In this case, Adidas has not demonstrated, nor have we otherwise found, the existence of a historical exception for the prior-restraint protection of trade secrets from publication by a third-party publisher who receives information lawfully. Absent a historical exception, that publication is protected speech that may not be restricted under the Oregon Constitution.

To be sure, trade secrets are not the same thing as attorney-client privileged material. A federal trial court in Florida faced a strikingly similar situation to the one in this matter. In that case, U.S. v. Noriega (1990), CNN had obtained video recordings of numerous conversations involving a federal defendant (Manuel Noriega, formerly the ruler of Panama), including some that consisted of attorney-client communications. The trial court temporarily blocked CNN from airing those recordings (although CNN did in fact air some), and while it ultimately lifted the stay after about a month after reviewing the contested material, the court defended its earlier decision as necessary to be able to weigh the balance between the defendant's Sixth Amendment right to a fair trial against CNN's First Amendment right.

In essence, this "fair trial/free press" problem would require a court to consider whether publication of additional attorney-client privileged materials would infringe ex-Governor Kitzhaber's right to a fair trial, should he ultimately face criminal charges. For example, publication of privileged materials that reveal detailed trial strategies might well irreparably harm a criminal defendant. Answering the question of whether the emails in this matter fall into that category would, of course, require examination of those emails, which is something that a court would do in camera (meaning in secret).

The Noriega case isn't binding on Oregon courts, but its analysis of the same issue provides a data point suggesting that the prior restraint may be difficult to obtain, but there might be circumstances in which one might be upheld.

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.

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.