I'll return to this later, but here's news that the Second Circuit zigged where other courts have zagged. It recognized a strong version of the attorney client privilege within the government, even in the face of a criminal investigation. The matter arose from the criminal investigation into Connecticut's Governor John Rowland.
Acknowledging that its decision varied from other courts' rulings, the court declared,
"It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice" ... "Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business."
This new holding bucks the current trend of nibbling away at the privilege. For example, you may recall that in the case arising from the Monica Lewinsky scandal, the DC Circuit had rejected a privilege assertion as to Deputy White House Counsel Bruce Lindsey.
I should add that one of our upcoming inteviews will be with Professor Kathleen Clark, of the Washington University in St. Louis, who's an expert on legal ethics within the government context. We will no doubt ask her about this new case.