In re Grand Jury Investigation

• Decision Date: 22 February 2005
• Docket Number: Docket No. 04-2287-CV.
• Citation: 399 F.3d 527
• Parties: In Re: GRAND JURY INVESTIGATION United States of America, Movant-Appellee, v. John Doe, Interested-Party-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

399 F.3d 527

In Re: GRAND JURY INVESTIGATION

United States of America, Movant-Appellee, v. John Doe, Interested-Party-Appellant.

Docket No. 04-2287-CV.

United States Court of Appeals, Second Circuit.

Argued June 22, 2004.

Decided February 22, 2005.

Ross H. Garber (Melinda M. Decker, on the brief), Office of the Governor of Connecticut, Hartford, CT, for Interested-Party-Appellant.

Eric J. Glover, Assistant United States Attorney (John H. Durham, Deputy United States Attorney for the District of Connecticut, Nora R. Dannehy, Assistant United States Attorney, William J. Nardini, Assistant United States Attorney, on the brief), New Haven, CT, for Movant-Appellee.

Before: WALKER, Chief Judge, JACOBS and LEVAL, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

This opinion follows our expedited order of August 25, 2004, reversing an order of the United States District Court for the District of Connecticut (Robert N. Chatigny, Chief Judge) that would have compelled the former chief legal counsel in the Office of the Governor of Connecticut to reveal to a federal grand jury the contents of private conversations she had with the Governor and various members of his staff for the purpose of providing legal advice. We now explain the reasoning in support of the order.

BACKGROUND

On February 19, 2004, in the course of investigating possible criminal violations by Connecticut public officials and employees, and by private parties with whom the state had done business, a federal grand jury subpoenaed the testimony of Anne C. George, former chief legal counsel to the Office of the Governor of Connecticut. George served in that position from August 2000 to December 2002 and before that as deputy legal counsel. During the period leading up to issuance of the subpoena, the U.S. Attorney's Office ("the Government") had been investigating, in particular, whether Governor Rowland¹ and members of his staff had received gifts from private individuals and entities in return for public favors, including the favorable negotiation and awarding of state contracts. The Government had sought, through direct contact with Governor Rowland, to gain access to specified communications between Rowland, his staff, and legal counsel, all to no avail. The Government had also asked George herself to submit to a voluntary interview. She declined, however, after the Office of the Governor notified her that it believed that the information the Government was seeking was protected by the attorney-client privilege.

On March 3, 2004, prior to George's appearance before the grand jury, the Government moved in the district court to compel George to testify about the contents of confidential communications between George and Governor Rowland and members of his staff. The district court withheld decision pending George's actual appearance and assertion of the privilege before the grand jury.

On April 7, 2004, when George appeared before the grand jury, she testified that in her capacity as legal counsel to the Governor she had engaged in numerous conversations with Rowland and other members of his staff on the subject of the receipt of gifts and the meaning of related state ethics laws. George also stated that she had spoken with Rowland's former co-Chief of Staff about a practice of state contracts being sent to the Governor's Office for approval. She testified, however, that because all of these conversations were in confidence and conducted for the purpose of providing legal advice, the Office of the Governor was of the view that they were protected by the attorney-client privilege, which it declined to waive. Accordingly, asserting the privilege on behalf of her client, George refused to answer questions pertaining to the content of the conversations.

On April 26, 2004, the district court entered an order compelling George's testimony. After noting that it was "undisputed that the grand jury need[ed] the information it [sought] to obtain from Ms. George," the district court concluded that "[r]eason and experience dictate that, in the grand jury context, any governmental attorney-client privilege must yield because the interests served by the grand jury's fact-finding process clearly outweigh the interest served by the privilege." The district court distinguished the "governmental" attorney-client privilege from the privilege in the context of a private attorney-client relationship, by explaining that "unlike a private lawyer's duty of loyalty to an individual client, a government lawyer's duty does not lie solely with his or her client agency," but also with the public.

Both the Office of the Governor and Rowland, as interested parties, appealed the district court's decision. We granted the Government's motion to expedite the appeal.

On June 21, 2004, one day prior to oral argument, Governor Rowland announced that he would resign as Governor, effective July 1, 2004. At argument, we asked the parties to address the question of whether Rowland's resignation would affect our disposition of the appeal. The Government subsequently informed us that it had asked Rowland's successor, Governor M. Jodi Rell, to consider waiving the privilege insofar as the privilege was held by the Office of the Governor, and requested that we defer our disposition of the appeal pending Governor Rell's decision. On August 6, 2004, the newly appointed counsel to the Office of the Governor informed us that Governor Rell declined to waive the privilege.

On August 25, 2004, for reasons we now explain, we issued an order reversing the district court.

DISCUSSION

Federal Rule of Evidence 501 governs the nature and scope of a privilege claimed in proceedings before a federal grand jury. See In re Katz, 623 F.2d 122, 124 n. 1 (2d Cir.1980). The rule instructs that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. Our determination of whether the Office of the Governor may claim a privilege, then, requires us to ascertain "the principles of the common law" and to apply them "in the light of reason and experience." In doing so, while we may draw on the law of privilege as it has developed in state courts, we are not bound by it. In criminal cases, Rule 501 plainly requires that we apply the federal law of privilege. See United States v. Gillock, 445 U.S. 360, 368, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980).

Although there is little case law addressing the application of the attorney-client privilege in the specific circumstances presented here, we are nonetheless dealing with a well-established and familiar principle. "The attorney-client privilege is one of the oldest recognized privileges for confidential communications," Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998); see also United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989), one that for centuries has been a part of the common law, in one form or another. While the privilege has a long history, understandings of its purpose and scope have varied over time. Compare 1 John W. Strong, McCormick on Evidence § 87, at 343-46 (5th ed.1999) (summarizing view that privilege, as it first appeared in Elizabethan England, was linked to barrister's code of honor, but rationale behind it later developed a more utilitarian bent) with 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5472, at 71-77 (1986) (characterizing as "highly questionable" the view that a rationale predicated on notions of honor, loyalty, and fairness gradually gave way to a utilitarian rationale for privilege, and arguing that during the modern period both rationales have coexisted). See also United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (noting that "the underlying rationale for the privilege has changed over time"). Today, the generally acknowledged purpose of the privilege is "to encourage `full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swidler, 524 U.S. at 403, 118 S.Ct. 2081 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)); see also In re John Doe, Inc., 13 F.3d 633, 635-36 (2d Cir.1994) ("The purpose of the attorney-client privilege is to promote open communication between attorneys and their clients so that fully informed legal advice may be given."); Restatement (Third) of the Law Governing Lawyers § 68 cmt. c (2000) ("The rationale for the [attorney-client] privilege is that confidentiality enhances the value of client-lawyer communications and hence the efficacy of legal services.").

The idea that a robust attorney-client privilege will in fact "promote broader public interests" does not mean that application of the privilege will render justice in every single case. Nevertheless, courts have by reason and experience concluded that a consistent application of the privilege over time is necessary to promote the rule of law by encouraging consultation with lawyers, and ensuring that lawyers, once consulted, are able to render to their clients fully informed legal advice. See id. ("Recognition of the privilege reflects a judgment that [impairment of the search for truth in some instances] is outweighed by the social and moral values of confidential consultations.... The law accepts the risks of factual error and injustice in individual cases in deference to the values that the privilege vindicates.").

In light of the common-law roots of the attorney-client privilege and the attendant principle (evident in case law stretching back at least a century, see Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 32 L.Ed. 488 (1888)) that safeguarding client...