In Wednesday's Law and Ethics class we discussed whether attorney-client privilege could ever be selectively waived. In other words, could you disclose privileged material to one party on the condition that it agree not to divulge it to another, thereby maintaining the privilege. Normally you can't do that - once you waive privilege, the cat's permanently out of the bag, and you can't assert it later to keep others from accessing the material.
The case in question raising the issue was In re Columbia/HCA Healthcare (293 F.3d 289 (6th 2002)). In that case the defendant company found through its own investigations evidence of the fraud that the government was charging it with committing, but it could assert privilege to keep from ever divulging what it found out. The defendant offered, however, to disclose these findings to the government in order to settle the matter, but only with the stipulation that the government agree to keep them confidential so that they could retain their privilege. (The company was afraid of subsequent civil lawsuits by private parties and wanted to make sure that privilege could prevent them from getting hold of the materials.) The theory behind this arrangement is that a secret divulged to someone who agrees to keep it secret would remain a secret. However, this is not usually how the waiver law works. Normally for the privilege to endure the material has to remain the secret of only the attorney and the client. Once any other party becomes privy to it, it is no longer a protectable secret and the attorney-client privilege is waived. The question the court considered here was whether there were public policy reasons to permit the exception to the general rule the defendant sought.
The majority on the court decided that there were considerable downsides to making this exception and voted not to do it. The dissent, however, thought such a plan had merit. One of the keys to Judge Bogg's dissenting argument was that there were strong public policy reasons for permitting this selective waiver since it involved disclosures to the government, which otherwise would not have had access to the material. The assumption underlying his argument is that the government would always be working for the greater cause of justice for the People, and that without access to those materials justice would be frustrated.
This assumption may not be sound, however. For one thing, without this disclosure, justice would not necessarily be stymied - the information might be accessible through other means. Furthermore, the government actor might not be the best protector of justice - perhaps private actions would lead to a fairer result. But the most significant problem is the presumption that the government's private settlements might serve the interests of justice at all. They may, surely, but it's not a certainty. And without transparency, no one would be able to know. The secret agreements necessary to protect the remaining privilege would prevent the public from ensuring that the government has been acting justly or in its interests. The public would need to blindly trust that the government's settlement actions were appropriate or fair without the ability to audit whether they in fact were. Such secrecy is anathema to an open and effective democracy and should not be tolerated. The relative merits of selective waiver aside, if it ever would be appropriate in any circumstance, these concerns of transparency preclude it from ever being appropriate in a situation where the government would be the sole party privy to the disclosure.
Comments (7)
Hmmm... Haven't read the case, but it does sound like this is a good decision.
On the other hand, I'm suprised to hear you arguing that the dissent is wrong on account of its potential effect on civil suits... Usually you seem interested in limiting civil suits on account of their high transaction costs and potential to chill behavior.
It seems like having the govenment act on behalf of the people (rather than having random individuals, lawyers and interests bring suits) would be something you would generally support-- rather than see as something that is probably a last resort.
Or, is the problem here nor some matter of general principal, but that you personally trust this administration less than you trust the public interest groups that would be likely to sue in this instance.
Mark
Posted by Mark | February 5, 2005 3:55 PM
Posted on February 5, 2005 15:55
True, I often think that. But that isn't really the point.
The problem is that in order for the government to be an efficient and effective proxy for the People, it must act in an open and accountable manner. Entering secret agreements is hardly open and accountable and undermines any legitimacy the government might otherwise claim to have.
Posted by Cathy | February 5, 2005 4:14 PM
Posted on February 5, 2005 16:14
But aren't the documents obtained by federal investigators in the course of an investigation normally internal docs that aren't subject to disclosure after a settlement, meaning that the only way to access them is collaterally, as evidence in a civil suit...
Targets of government investigations make deals (without admitting wrongdoing) all the time, and rarely is the government evidence made public.
Mark
Posted by Mark | February 5, 2005 6:06 PM
Posted on February 5, 2005 18:06
You are missing the point. I'm not discussing evidentiary minutiae, I'm discussing transparency. And I'm sure I will discuss it again and again, as I've already discussed it before, because that is what is truly important to the health of democracy.
Whether or not evidence may commonly be made public is not operative. Whether such disclosure becomes an impossibility, is.
Posted by Cathy | February 5, 2005 7:52 PM
Posted on February 5, 2005 19:52
OK... So your concern here is not so much that the government can refuse a request from the public for the information, but that the government is prohibited from disclosing it should it at some point wish to do so...
I see the merits to this.
BTW-- I'm all for governmental transparancy-- and am a big fan of the three open government laws in California (the California Public Records Act [an analog of FOIA], the Brown Act [an open meeting law], and the Political Reform Act [conflicts of interest, campaign finance and similar ethical issues]).
However, full transparancy isn't always possible, and these laws do (and must) include a number of exceptions. For example, I assume that you would agree with the deirability of requireing the government to maintain in confidence tax returns, social security applications, whistleblower informant statements, public hospital medical records and the like-- especially when the government has compelled the information from members of the public or receives the information in the course of providing a public social service.
Transparancy of such information can be useful to ferreting out governmental corruption and waste. However, unless the government is compeeled to keep such information confidential, governmental transperancy can have a huge impact on individual privacy. Transparancy really can't be absolute.
No comment here on application to the case you are discussing, since I don't know its facts. My Westlaw account only gets California sources (enjoy unlimited free student Westlaw while it lasts), so I can't call the case up easily.
Mark
Posted by Mark | February 5, 2005 10:05 PM
Posted on February 5, 2005 22:05
We were running through the policy arguments, pro and con, about whether selective waiver was a good idea. What inspired this post - but I didn't end up including - was how shocked I was that very few people in the room thought the transparency concern merited any weight. In fact, on a vote, more people sided with the dissent, which, transparency aside, I think also had the weaker argument (fyi most circuits agree with me and reject the selective waiver).
I have a sense that transparency in government is not nearly as valued as it should be by many people, but I will save more thoughts on this for a later post.
Posted by Cathy | February 6, 2005 5:20 AM
Posted on February 6, 2005 05:20
Agreed that many, especially many government employees, don't give enough value to transparancy... My only point is that absolute transparancy of all government documents would be a problem, and some documents held by the government can not be transparant.
BTW, my assumption in this discussion was that the document being held under attorney client priviledge was the underlying evidence, not the actual settlement agreement between the government and the investigation target. I agree that (possibly with slight redactions) a settlement agreement with the government problably should be transparant (though I know they often arn't).
Mark
Posted by Mark | February 6, 2005 5:18 PM
Posted on February 6, 2005 17:18