Privilege Ruling Disturbs Lawyers

WASHINGTON — In this city of lawyers and government officials--and lawyers who are government officials--the rule has been understood, unquestioned and unchallenged: Lawyers do not disclose what their clients tell them.

The attorney-client privilege has been written into the federal rules of evidence and the code of conduct for lawyers. The Supreme Court has cited the privilege for more than 100 years and referred to it as the most firmly established rule of confidentiality.

“It is absolute, and the view is uniform,” said Carolyn Lamm, president of the 68,000-member District of Columbia bar association. As both a corporate litigator and Justice Department lawyer for more than 20 years, Lamm said she has relied on the attorney-client privilege many times, and “it has always stood.”

That is, until now. In a recently unsealed ruling that has stunned the legal community here, a federal appeals court in St. Louis decided that lawyers in the White House counsel’s office must disclose notes of their private conversations with First Lady Hillary Rodham Clinton.

Siding with Whitewater independent counsel Kenneth W. Starr, the 2-1 majority said government lawyers cannot “shield” notes, comments or confidences that might be “relevant to a federal criminal investigation.”

“That strikes me as a truly extraordinary proposition,” said Washington attorney George W. Jones Jr., a member of the ethics panel for the American Bar Assn. and the D.C. bar. “If that were the rule, no one could talk to her lawyer. Government lawyers won’t be able to do their jobs and find out the facts of what happened if employees won’t talk to them.

“And if an accused mass murderer like Tim McVeigh can have an attorney-client privilege, how can it not apply in the White House?” Jones asked. “It’s an astounding conclusion.”

This new rule, if upheld by the Supreme Court, will force federal officials, congressional leaders, mayors, governors and all other public officials to think twice about speaking candidly with lawyers in their offices.

It could even shake up the inner workings of the Supreme Court, New York University law professor Stephen Gillers pointed out. The appeals court said its new rule covers “any part” of the federal government. Thus a criminal investigator, or even a private lawyer, theoretically could be entitled to demand notes of conversations between a lawyer or clerk at the Supreme Court and the chief justice, Gillers said.

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In many government agencies, staff lawyers talk to employees to gather facts. Often, these internal investigations can put a matter to rest. But if no attorney-client privilege exists, outside lawyers could demand notes from internal investigations.

“This is a very dangerous precedent and very unwise for the long term,” said Gillers, an expert on legal ethics. “I fear this is driven by anti-Clinton sentiment or people who just want to get to the bottom of this Whitewater business. But long after we have forgotten about Whitewater, this precedent is going to be on the books.”

Last week, the White House appealed the issue to the Supreme Court, which is expected to decide by late June whether to hear the case. The case, “Office of the President vs. Office of the Independent Counsel,” so far, surprisingly enough, has turned on whether lawyers in the White House counsel’s office owe a duty of loyalty to Clinton or Starr.

A key question for a lawyer always is “Who is the client?”

In a typical criminal case, the answer is simple. The defense lawyer represents the defendant and has a duty of confidentiality to him.

For corporate lawyers, it can be trickier. Their client is the corporation, not its employees. Corporate lawyers sometimes represent company employees involved in a lawsuit, and they will keep secret from outsiders their conversations with the employees. However, that privacy privilege of the employees can be waived by top officials of the corporation.

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In the government, it can be still trickier, as the latest case shows.

Starr is seeking notes taken by Jane Sherburne, special counsel to the president, and Miriam Nemetz, associate counsel to the president.

According to the D.C. bar’s rules for professional conduct, “the client of a government lawyer is the agency that employs the lawyer.” That would suggest that White House lawyers owe their duty of confidentiality to the president.

Starr, however, maintains that he--not the president--represents “the interests of the United States.”

Starr said in his brief that “White House attorneys have no legitimate governmental interest in shielding what they learn” from him.

His investigation “seeks the truth, nothing more and nothing less,” Starr told a recent meeting of newspaper editors in Arkansas. “White House attorneys represent the federal government, and as such, they are duty-bound to disclose relevant information” to him, he said.

While this fight is couched as a legal battle, it has a political side too. Starr and virtually all the judges who have ruled against the Clintons in this and related matters have their roots deep in the Reagan administration--which was also bedeviled by investigations, some driven by Democratic-controlled congressional committees and others by independent counsels.

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During the Iran-Contra scandal, Reagan waived all privileges to confidentiality and ordered his advisors and attorneys to tell what they knew. But his Justice Department lawyers bristled at such inquiries, even arguing--unsuccessfully--that the independent counsel was unconstitutional.

Now, however, many of these same lawyers have staked out positions on the opposite side.

Starr, a top Reagan Justice Department lawyer and then a Reagan-appointed judge, was named the Whitewater independent counsel by a panel led by Judge David Sentelle, another Reagan appointee.

A former chairman of the Mecklenburg, N.C., Republican organization, Sentelle was a protege of Sen. Jesse Helms (R-N.C.). In 1994, when Republicans were complaining about the lackluster Whitewater investigation led by independent counsel Robert B. Fiske Jr., Sentelle was seen having lunch in the Senate dining room with Helms and Sen. Lauch Faircloth (R-N.C.). Soon after, Sentelle’s panel dismissed Fiske and replaced him with Starr.

Last year, Starr obtained a grand jury subpoena requiring the White House to turn over “all documents created during meetings attended by any attorney from the Office of Counsel to the President and Hillary Rodham Clinton.”

Starr suspects that Hillary Clinton has illegally obstructed his inquiry. While she has appeared before a grand jury and answered Starr’s questions, legal experts said the notes taken by White House lawyers could be used to show inconsistencies in her statements.

U.S. District Judge Susan Webber Wright in Little Rock, Ark., a Clinton appointee, quashed Starr’s subpoena in November, saying that Hillary Clinton had a “reasonable belief” that her conversations were private.

But Starr appealed to a three-judge panel in St. Louis, two of whose members are Reagan appointees.

Judge Pasco M. Bowman, an outspoken conservative, was a Reagan White House favorite who was considered for a Supreme Court seat in 1987 after the nomination of Robert H. Bork went down to defeat.

Early last year, Bowman wrote the 2-1 majority opinion clearing the way for Paula Corbin Jones’ lawyers to demand that Clinton sit for depositions on her sexual-harassment claim.

“The Constitution did not create a monarchy,” Bowman began.

The Supreme Court is expected to rule on the president’s appeal in that case within the next six weeks.

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In the privilege case, Bowman could have decided the issue narrowly by ruling that Hillary Clinton is not a government employee and that Whitewater fallout is not government business.

Instead, he broadly rejected the notion of “a governmental attorney-client privilege.”

“The general duty of public service calls upon governmental employees and agencies to favor disclosure over concealment,” he wrote. “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.”

He was joined by Reagan appointee Judge Roger Wollman. The third member of the panel, U.S. District Judge Richard G. Kopf, a George Bush appointee, dissented. He pointed out that the federal rules of evidence give clients, whether “public or private,” a right to “refuse to disclose and prevent any other person from disclosing confidential communications” regarding legal discussions.