Thursday, October 17, 2013

Are Communications By A Government Employee With A Government AttorneyPrivileged?

In In re Grand Jury Subpoena, the Fourth Circuit reviewed an order from the district court “that: (1) certain emails sent by a government-employed lawyer were not protected by the attorney-client privilege, and (2) the attorney-client privilege does not exist between a government official and a government-employed lawyer in the context of a criminal investigation.”

The Fourth Circuit first held that the unidentified appellants failed to establish the government attorney was actually providing legal advice to the government employee in the emails at issue. Therefore, the emails were not privileged and that portion of the district court’s order was affirmed.
The Fourth Circuit vacated the second portion of the district court’s order as moot (for now). Having already resolved the privilege issue as to the specific emails presented, the court held resolution of the broader second issue did not present a justiciable issue. Therefore, any decision would be an improper advisory opinion.

The court did note that the broader and more interesting issue may be ripe for resolution in the future (“We note, however, that should the record be more fully developed through the course of the grand jury investigation such that a concrete dispute arises as to particular communications, justiciable claims may yet lie.”).

For what it’s worth, as discussed in a story by Politico, the Associated Press has identified the “confidential” government employee as the Governor of Virginia.


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