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In re Grand Jury Investigation [Rowland]

United States Court of Appeals for the Second Circuit · 2005 · Evidence
399 F.3d 527 (2d Cir. 2005)
Updated
EvidenceAttorney-Client PrivilegeGrand JuryRule 501government lawyerconfidential communicationslegal advicecrime-fraud exception

Facts

A federal grand jury investigating possible criminal violations by Connecticut public officials subpoenaed Anne C. George, former chief legal counsel to the Office of the Governor. George testified that she had confidential conversations with Governor Rowland and staff about receipt of gifts, related state ethics laws, and a practice of state contracts being sent to the Governor's Office for approval, all for the purpose of providing legal advice. She refused to disclose the contents of those conversations because the Office of the Governor asserted attorney-client privilege and declined to waive it. The district court compelled disclosure on the ground that any governmental attorney-client privilege must yield in the grand jury context.

Issue

Whether, under Federal Rule of Evidence 501, the attorney-client privilege protects confidential communications between a state governor's office and its legal counsel from compelled disclosure to a federal grand jury investigating possible criminal conduct. More specifically, the question was whether any governmental attorney-client privilege must yield to the grand jury's need for evidence.

Rule

Under Federal Rule of Evidence 501, federal common law recognizes an attorney-client privilege for confidential communications between government lawyers and their government clients made for the purpose of obtaining or providing legal advice. When the privilege applies, courts should not abrogate it in response to a federal grand jury's generalized need for evidence or create an ad hoc balancing test; only traditional limits on the privilege, such as the crime-fraud exception, remain applicable.

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Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.
The mayor of Columbus, Ohio asked the city's chief legal adviser in a private meeting whether a proposed fundraising arrangement would violate state ethics restrictions. A federal grand jury later subpoenaed the lawyer to testify about what the mayor said and what advice the lawyer gave, and the city refuses to waive confidentiality.

Should the court compel the lawyer to disclose the contents of the meeting solely because the grand jury is conducting a criminal investigation?

Explanation. The majority recognized a governmental attorney-client privilege under Rule 501 for confidential legal-advice communications between government lawyers and government clients. It rejected any categorical grand-jury override based on the public's interest in disclosure. The privilege does not disappear merely because the investigation is criminal or because the grand jury wants relevant evidence.