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By Samson Habte
July 15 — Former Oregon Gov. Jon Kitzhaber can't invoke the attorney-client privilege to prevent a federal grand jury investigating him for corruption from obtaining e-mails he exchanged with state lawyers about ethics and conflicts of interest, the U.S. Court of Appeals for the Ninth Circuit held July 13 ( United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16 ).
The ruling came in an opinion that upheld several other privacy and privilege claims that Kitzhaber raised in a motion to quash a subpoena issued in connection with an influence-peddling probe that may implicate the former governor and his fiancée, Cylvia Hayes.
Kitzhaber resigned from office in February 2015 amid allegations that he and Hayes did favors for clients of Hayes' environmental consulting firm.
Kitzhaber refused to use an official State of Oregon email account and conducted state business using an “official” Gmail account, as well as two “personal” accounts, the court said. The subpoena requested e-mails that were sent from the personal accounts but—unbeknownst to Kitzhaber—archived on state servers.
Kitzhaber argued the subpoena was unreasonably broad, and that it violated his Fourth Amendment privacy rights and invaded his attorney-client privilege.
The court quashed the subpoena, saying it was “unreasonably broad and within the district court's supervisory power, and responsibility, to quash.”
“[W]e agree with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment's protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case—which is not even minimally tailored to the government's investigatory goals—is unreasonable and invalid,” Judge Marsha S. Berzon wrote.
“This conclusion is reinforced by the nature of the emails caught up in the exceedingly broad subpoena,” Berzon said. “Stored in his personal accounts, many of the messages—or so Kitzhaber avers—do not concern official state business in any way, and some concern particularly private matters, including communications about medical issues and Kitzhaber's children.”
“We do not agree, however, that Kitzhaber may assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon's attorneys,” the three-judge panel held.
The panel said that while Kitzhaber's communications with privately-retained lawyers were protected by the attorney-client privilege, e-mails he exchanged with government lawyers were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not Kitzhaber personally.”
“Moreover, a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations,” Berzon said.
“[A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties,” Berzon wrote.
The court rejected Kitzhaber's argument that “the privilege over the conflict of interest and ethical obligations conversations should attach to him personally, because any liability from breaking those obligations would be personal.”
“Where courts have acknowledged the attorney-client privilege to apply to conversations between government officials and government lawyers, they have construed the privilege to mean that ‘ the Government may invoke the attorney-client privilege,' not that officeholders in their personal capacity may invoke the privilege,” Berzon said, citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 2011 BL 154640, 27 Law. Man. Prof. Conduct 398 (2011).
“In no instance, as far as we are aware, has a former officeholder successfully claimed that a government staff lawyer discussing a matter relating to official business was representing the officeholder personally during a conversation had while both were government employees,” Berzon said.
Kitzhaber said the potential for personal liability should have indicated to government lawyers he consulted that he was seeking personal counsel.
The court wasn't convinced.
It said consideration “of the possible personal sanctions for non-compliance with [an official's] legal obligations is likely to be an integral part” of that official's discussions with state lawyers.
“But that does not mean that during those conversations, the government lawyers are acting as the personal attorneys for the officeholders,” Berzon wrote.
Government lawyers “‘have a higher, competing duty to act in the public interest,'” and the public interest “may well include advising government officials about their ethical duties,” Berzon said.
But the fact “that the public's interest partially overlaps with those officials' private interests does not convert government attorneys into those officials' private attorneys,” she wrote.
The court also rejected Kitzhaber's argument that officeholders will “be less likely to engage in full and frank discussions with agency counsel about the facts underlying a potential conflict” if the privilege does not attach to officeholders in their personal capacity.
“Perhaps so,” Berzon said. “But the State of Oregon has an exceedingly strong interest in keeping conversations concerning conflicts of interests between its lawyers and other officials confidential to ensure candor, and therefore in invoking the attorney-client privilege as to such conversations.”
Janet Lee Hoffman of Janet Hoffman & Associates LLC, Portland, Ore., argued for Kitzhaber. Assistant United States Attorney Kelly A. Zusman, Portland, argued for the government.
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