April 12, 2023
Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged communications to another government agency.
In Amann v. Office of the Utah Attorney General, Case No. 2:18-cv-00341, 2022 U.S. Dist. LEXIS 230056 (D. Utah Dec. 20, 2022), a former Utah Attorney General's Office lawyer sued for wrongful termination based on his whistleblowing activities. He argued that the Attorney General's Office waived its privilege protection for documents on a flash drive it disclosed to the Utah Department of Human Resources Management (DHRM) as part of that agency's investigation. Surprisingly, the court found a waiver, because the disclosure was not made "for the purpose of obtaining legal advice." Id. at *14. The court held that DHRM was "an outside entity" for privilege purposes. Id. Perhaps even more surprisingly, the court held that the waiver extended beyond the "approximately 100 emails the DHRM investigator actually reviewed" — and instead extended to all 53,750 documents on the flash drive (to the extent those were owned by the Attorney General's Office rather than owned by some other client). Id. at *14-15.
Other courts might well reach a different conclusion both on the waiver issue and the scope of waiver issue. Cases like this highlight the risk of disclosing privileged communications to anyone or any entity outside the intimate attorney-client relationship.