The Second Circuit Explores a Government’s Attorney-Client Privilege

March 14, 2007

Every court acknowledges that governments can be clients, and engage in privileged communications with their lawyers. However, courts have struggled with differentiating between governmental lawyers providing legal advice and providing public policy advice.

In Pritchard v. County of Erie (In re County of Erie), 473 F.3d 413 (2d Cir. 2007), the Second Circuit reviewed a district court’s order requiring that the county disclose communications with its lawyers about its arrestee strip search rules. The district court held that the communications involved policymaking and administrative issues. The Second Circuit disagreed, finding that the communications’ “predominant purpose” was to provide legal advice about the policy: “When a lawyer has been asked to assess compliance with a legal obligation, the lawyer’s recommendation of a policy that complies (or better complies) with the legal obligation — or that advocates and promotes compliance, or oversees implementation of compliance measures — is legal advice.” Id. at 422. The Second Circuit granted a writ of mandamus and overturned the district court’s holding.

Although it can sometimes be very difficult to determine a communication’s “predominant purpose,” this ruling should provide some comfort to lawyers who advise governmental entities.