<i>In re</i> Government Attorney Client Privilege: A Categorical Rule to Settle the Issue

Abstract

The attorney client privilege is an evidentiary principle and a longstanding creature of common law. The privilege is meant to encourage open and honest communication between lawyer and client, and protects the disclosure of those communications. The privilege promotes the administration of justice by allowing individuals to confidentially communicate with skilled attorneys and receive sound legal advice. The privilege is not without limitations though, and should be applied narrowly due to its power to prevent the production of evidence in criminal cases. Government attorneys and employees remain uncertain about whether the attorney client privilege will apply to their communications when faced with a criminal grand jury subpoena. The U.S. Court of Appeals for the First Circuit had a chance to weigh in on the issue in 2018 for the first time, but left more questions unanswered. The First Circuit rejected the application of a categorical rule that the Rhode Island government could not assert the attorney client privilege in response to a federal grand jury subpoena. Instead of applying a categorical rule, the court addressed a number of factors to determine the applicability of the privilege. The First Circuit court went so far as to say that the government attorney client privilege analysis may hinge on who the target or subject of the grand jury investigation is. The First Circuit is the fifth circuit court of appeal since 1997 to address the application of the attorney client privilege to government attorneys when faced with a grand jury subpoena stemming from a criminal investigation. Each circuit took their own analytical approach to decide the issue, creating a split in the five circuits reasoning and holdings. This Note explores the reasoning and factors used by each of the circuits in deciding whether or not to uphold the privilege. After considering those factors, this Note argues that there should be a categorical rule that neither a state nor the federal government may invoke the attorney client privilege in response to a criminal grand jury subpoena. To justify this conclusion, this Note outlines how current government attorney client privilege case law and the policy underpinnings of the privilege itself dictate that a categorical rule is appropriate.