Court Applies Unique Government Attorney-Client Privilege Principle

June 6, 2018

In the corporate world, the attorney-client privilege does not protect communications to or from corporate lawyers acting in a business role.  An analogous principle can deprive governments of their attorney-client privilege protection.

In Harjo v. City of Albuquerque, plaintiff sought discovery of a “settlement matrix” the City used when applying its vehicle forfeiture program.  No. CIV 16-1113 JB/JHR, 2018 U.S. Dist. LEXIS 58276, at *3 (D.N.M. Apr. 4, 2018).  The court rejected as a “fallacy” the City’s contention that the matrix deserved privilege protection because government lawyers created it.  Id. at *12.  The court ultimately found the privilege inapplicable, because the matrix “appears to have been created in the City Attorneys’ administrative or regulatory capacity, and not their legal capacity.”  Id. at *13.

In addition to applying this principle in the governmental context, some courts emphasize the public interest favoring transparency when considering government lawyers’ privilege claims.