Government officials under criminal investigation sometimes argue that they enjoyed a personal attorney-client relationship with the government lawyer to whom they turned for advice. In a sad commentary on the current state of morality among public officials, a number of circuits have rejected such arguments.
The Second Circuit has taken the opposite approach. United States v. Doe (In re Grand Jury Investigation), 399 F.3d 527 (2d Cir. 2005). The District Court had compelled ex-Connecticut Governor Rowland’s former chief legal counsel to answer questions about conversations she had with then-Governor Rowland. The Second Circuit reversed, finding that Governor Rowland enjoyed a personal attorney-client relationship with the government lawyer – meaning that the lawyer could refuse to testify. The Second Circuit relied primarily on cases recognizing that the government itself can enjoy an attorney-client relationship with a government lawyer (which is beside the point), and acknowledged that its opinion conflicts with an earlier Seventh Circuit decision and “is in sharp tension” with decisions by the Eighth and D.C. Circuits. Id. at 536 n.4.
It will be interesting to see if this split among the Circuits results in a United States Supreme Court decision on this issue.