Congress has released dozens of e-mails and letters between Jack Quinn, lawyer for fugitive financier Marc Rich, and the many people maneuvering to get him pardoned by then-President Bill Clinton. How come this stuff wasn't protected by attorney-client privilege?
Quinn didn't assert the privilege. He produced reams of stuff in response to a request--not a subpoena--from the House Committee on Government Reform. (Read the documents here--including one on how a letter of support for the pardon from the widow of Israel Prime Minister Yitzhak Rabin was unlikely to materialize since Leah Rabin herself was deceased.) The committee's request said that Quinn had to supply a log outlining the general subject matter of any document he considered privileged. He did claim privilege on some communication; a spokeswoman says the committee is not planning to challenge those privilege claims.
An attorney is ethically required to notify a client and get approval before turning over possibly confidential communication between them. If the lawyer wants to release the material and the client doesn't, the client can then hire another lawyer to assert the privilege. What's not protected by the privilege is communication with third parties, such as ex-spouses. Since Marc Rich was Quinn's client, e-mails among Quinn, Rich's ex-wife Denise, and Denise's friend, fund-raiser Beth Dozoretz, for example, are not privileged. Although e-mail communication raises questions of the presumption of confidentiality--a requirement in invoking attorney-client privilege--the courts have found that if lawyer and client assumed communication via new technologies, such as e-mail and cell phones, was to be confidential, the privilege stands.
Explainer thanks Paul R. Rice of the American University Washington College of Law.