Reprinted from Roll Call (May 17, 2011)
Q: I have a question about the Senate Ethics investigation of
former Sen. John Ensign
(R-Nev.). I heard that one of the documents investigators used to
demonstrate wrongdoing was a communication from Ensign’s attorney. This didn’t
make sense to me. Aren’t communications with attorneys privileged? If so, how
would investigators have a copy of a communication from Ensign’s attorney?
A: This is an excellent question, as its answer provides an important
lesson for Members and staffers regarding the basics of the attorney-client
privilege. While people often assume that communications with attorneys are
privileged and confidential, Members and staffers should be aware that not all
such communications are. Before turning to the reason for that, some context is
Last week, the Senate Ethics Committee released a report regarding its
investigation of Ensign’s conduct surrounding an extramarital affair. The report
concludes that “substantial credible evidence” exists that Ensign committed
several crimes in the aftermath of his affair. The Ethics Committee sent its
report to the Department of Justice, citing the committee’s responsibility to
contact the “proper authorities” when it has reason to believe that a violation
of law has occurred.
One of the key issues in the report is whether a $96,000 payment by Ensign’s
parents to Cynthia and Doug Hampton and two of their children was intended as a
gift or as severance when the Hamptons left the Senator’s employ. Cynthia
Hampton, who had the affair with Ensign, was employed by Ensign’s campaign, and
Doug Hampton was a staffer in Ensign’s Senate office.
The report states that several significant consequences would flow if the
payment was severance and not a gift. First, it would mean that a portion of the
payment would be an illegal campaign contribution from Ensign’s parents to
Ensign’s campaign. According to the report, this is because Ensign’s parents
would technically have made a contribution for Cynthia Hampton’s severance — in
an amount that far exceeds the maximum annual contribution permitted by law. In
addition, the report says, if the payment was severance, it would mean that
Ensign’s sworn statements to the contrary to the Federal Election Commission
would be false and therefore would violate federal criminal statutes prohibiting
false statements to the government.
The report cites several pieces of evidence that the payment was in fact
severance. One piece of evidence, the report says, is an email from Ensign’s
attorney raising concerns about a draft public statement in which Ensign planned
to admit to his affair that included the word “severance.” The attorney warned:
“If this statement doesn’t get the attention of the U.S. Attorney’s Office, then
Your question goes to how the Ethics Committee came to obtain a copy of a
communication like this. After all, most of us consider communications with
attorneys to be privileged and confidential.
As it turns out, the email from Ensign’s attorney was one of the 500,000
documents that Ensign provided to the committee in response to document
requests. Initially, Ensign did not produce it to the committee, claiming that
it was protected by the attorney-client privilege. After the committee
challenged the privilege claim, however, Ensign produced the email.
Why? The email was not to Ensign. Rather, it was sent to the communications
director for Ensign’s Senate office, who was helping Ensign draft his public
statement regarding the affair.
In general, the attorney-client privilege protects confidential
communications between clients and their attorneys for the purpose of obtaining
legal advice. Under the privilege, no one, not even the government, can force
you to produce documents reflecting privileged communications with your
attorney. The idea behind the privilege is to allow you to be fully candid when
seeking legal advice, without fear that your communications might one day be
subject to review by someone else.
In Ensign’s case, however, the communication from his attorney was not to
Ensign. With some exceptions, in order for a communication to be protected by
the attorney-client privilege, the communication must be between a client and
his attorney. Moreover, in order for the privilege to apply, the communication
must be confidential, meaning, again with some exceptions, that no third party
is privy to the communication. If a third party is privy to the communication,
the privilege usually will not apply. In this case, Ensign’s attorney sent the
email to his office’s communications director, to a Gmail address that she
shared with her husband.
This episode is an excellent reminder for Members and staffers. Given the
time constraints that Members’ busy schedules often impose on them, Members can
grow accustomed to relying on staffers for important tasks. When it comes to
dealing with attorneys, however, Members should be aware of the risks that arise
when someone other than a Member communicates with his attorney. Confidentiality
is far from assured.
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