The Attorney-Client Privilege

The Attorney-Client Privilege

The Attorney-Client Privilege

A cheat sheet for the news.
May 11 1997 3:30 AM

The Attorney-Client Privilege

Last week a federal appeals court ruled that White House lawyers must hand over notes of their conversations with first lady Hillary Rodham Clinton to Whitewater Independent Counsel Kenneth Starr. The White House lawyers assert these conversations were confidential, protected by the attorney-client privilege. They will take their claim to the Supreme Court. What is the attorney-client privilege? Is the White House in the right?

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Like conversations between doctor and patient or priest and penitent, confidential communications between a client and his lawyer are legally protected. A client can refuse to disclose the substance of those communications, and only in rare exceptions will the lawyer be forced to divulge the information in question. The communication should, however: 1) always have been confidential and 2) relate to legal advice (a client cannot deliver documents to a lawyer simply to elude a legal obligation to turn them over). An attorney's "work product"--his memoranda, interview notes, and other trial preparations--are similarly protected. Federal and state statutes codify this privilege. Lawyers who betray it risk disbarment and can be sued for malpractice.

Franklin Foer Franklin Foer

Franklin Foer is a Slate contributing editor and the author of World Without Mind.

According to legal historians, a version of the attorney-client privilege first appeared in Roman courts. It was revived by the English in the 16th century and then absorbed into American common law. The rationale is that it is in society's interest for people to seek advice from lawyers in order to make sense of complicated regulations and laws. Clients will only receive useful advice if they speak candidly with their lawyers without having to fear that their conversations could later incriminate them.

The scope of the attorney-client privilege remains broad. Courts in the last 30 years have extended the privilege to corporations and even affirmed its applicability to dead clients.

There are exceptions:

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Clients can waive the privilege.

It does not apply when legal advice is used to plan crimes. Conversations between a Mafia boss and his lawyer arranging the murder of a disloyal underboss, for instance, are not protected. But the distinction is not always so clear. There is a fine line between abetting a client's fraudulent testimony, which is not protected, and planning a legitimate defense.

When a lawyer becomes a defendant, the privilege evaporates. This applies to malpractice suits filed against lawyers, and in cases where the lawyer is implicated in a client's crime (this was the exemption under which White House counsel John Dean testified against Richard Nixon).

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T he notes the Clinton White House wants to protect were taken by two White House lawyers at meetings on July 11, 1995, and Jan. 26, 1996, also attended by Hillary Clinton and her private attorney, David Kendall. The first meeting concerned the first lady's activities immediately following associate White House counsel Vincent Foster's suicide; the second had to do with her testimony before a grand jury investigating the billing records from her Arkansas law firm. The records had been missing for two years before inexplicably reappearing in the first family's private quarters.

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These notes were subpoenaed by special prosecutor Kenneth Starr on June 21, 1996. In response, White House lawyers immediately invoked the attorney-client privilege, a claim upheld by a trial court.

Last week, however, a federal appeals court in St. Louis reversed the trial court's decision. It held that the lawyer-client privilege does not protect conversations between government officials and government lawyers during the course of a federal prosecutor's investigation. Government lawyers are obliged to enforce laws, not to protect an official. If an official desires a confidential discussion about a potentially criminal act, he should hire a private attorney.

White House counsel argues that: 1) Courts have consistently recognized that the attorney-client privilege applies to conversations between government officials and government lawyers. 2) Even Starr concedes that Hillary Clinton should be treated as a government official. 3) The appeals court's decision has nasty ramifications for the entire government. From now on, officials will be reluctant to discuss tricky legal issues with government attorneys, fearing that their conversations will come back to haunt them, and will instead secure private counsel.

The White House need not turn over any documents until the Supreme Court adjudicates the case. The ruling, which is expected in June, will turn on the court's interpretation of the White House counsel's mandate. No legal precedent presages the decision. Some experts on the attorney-client privilege predict that the Supreme Court will uphold it where the White House has an official interest (the meeting related to the Foster suicide) and reject it in private matters (the billing records).

White House officials say their rigorous assertion of the attorney-client privilege is driven by a desire to prevent future incursions on the privacy of conversations between the first family and its lawyers. They say it does not amount to an admission that the notes contain damning content.