July 31, 2013 (PRIVILEGE POINT)
"The Attorney-Client Privilege Protection Applies in Unique Ways to Government Lawyers"
Every court agrees that governments at all levels can enjoy privilege protection when government employees with the appropriate level of authority seek legal advice from government or outside lawyers. However, government lawyers face unique privilege principles.
In Hoffman v. City & County of San Francisco, Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 77076 (N.D. Cal. May 31, 2013), the court applied the same privilege protection in the governmental context that would apply elsewhere. Among other things, the court rejected plaintiffs' argument that the privilege did not protect otherwise privileged documents sent to "members of the Civil Service Commission and the City's Human Resources department," explaining that "these individuals were the employees of the City that could have been seeking legal advice." Id. At *3. Several weeks earlier, another court applied one of the unique rules governing privilege claims in the governmental context. In Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797 (M.D. Fla. May 10, 2013), the court ordered disclosure of an IRS lawyer's legal opinion. The court acknowledged that the opinion deserved privilege protection, but ultimately concluded that "the attorney-client privilege may not be invoked to shield a document adopted as, or incorporated by reference into, an agency's policy." Id. At *30.
Lawyers challenging the IRS's and other governmental agencies' privilege claims should familiarize themselves with the unique rules governing privilege protection in that context.