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Better Gov't Bureau v. McGraw (In re Allen)

United States Court of Appeals for the Fourth Circuit

July 9, 1996, Argued ; February 6, 1997, Decided

No. 96-1464, No. 96-1601, No. 96-1652

Opinion

 [*586]  DIANA GRIBBON MOTZ, Circuit Judge:

Against a background of drama and intrigue, the Attorney General of West Virginia claims qualified immunity and his outside  [*587]  counsel asserts, on the Attorney General's behalf, attorney-client privilege. We affirm the [**2]  district court's refusal to grant qualified immunity to the Attorney General, because he engaged in activity a reasonable official in his position would have known was clearly established to be beyond the scope of his authority. However, because the Attorney General's outside counsel properly relied on the opinion work product doctrine and, at her client's behest, the attorney-client privilege, in refusing to answer certain deposition questions and produce certain documents, we reverse the district court's order finding outside counsel in contempt.

The first major question raised in these consolidated cases, the qualified immunity question, revolves around a non-profit organization known as the Better Government Bureau, Inc. (BGB) and its efforts to incorporate under that name in the State of West Virginia.

BGB has been incorporated in the State of Ohio since August 1993, and in the State of Washington since early 1994. A government "watchdog" association, BGB's members include approximately forty-seven businesses and 304 individuals from various states. In addition, BGB works with various advocacy groups, including the Heritage Foundation, the National Vietnam Veteran's [**3]  Coalition, and the Christian Coalition. BGB's mission is "to make government more efficient, responsive and less corrupt" by working for lower taxes, fewer restrictions on free enterprise, and less bureaucracy. BGB monitors and investigates government activities, and disseminates information about government policies affecting businesses, focussing particularly on complaints from its members.

In August 1994, Suarez Corporation Industries (SCI) lodged a complaint with BGB regarding West Virginia Attorney General Darrell McGraw and his Office. SCI is one of BGB's most active members and its largest source of membership dues. The Attorney General's Office had filed suit against one of SCI's subsidiaries for fraudulent activities and violations of West Virginia's Consumer Credit and Protection Act, W. Va. Code §§ 46A-1-101 to 46A-8-102. SCI asserted that the investigation and prosecution of these violations were improper and raised questions about abuse of power. BGB attempted to investigate this complaint by requesting information from the Attorney General under the West Virginia Freedom of Information Act, W. Va. Code §§ 29B-1-1 to 29B-1-7. The Attorney General assertedly refused to [**4]  provide the requested information.

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106 F.3d 582 *; 1997 U.S. App. LEXIS 1915 **; 36 Fed. R. Serv. 3d (Callaghan) 1196

In Re: BARBARA H. ALLEN, Appellant, BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. DARRELL V. MCGRAW, JR., Attorney General, State of West Virginia, Personally and in his Official Capacity; BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL STATE OF WEST VIRGINIA, A Body Politic, A Corporate Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; KEN HECHLER, Secretary of State, in his Official Capacity, Defendants, v. DONNA WILLIS, Party in Interest. BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. DARRELL V. MCGRAW, JR., Attorney General, State of West Virginia, Personally and in his Official Capacity, Defendant-Appellant, and BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL STATE OF WEST VIRGINIA, A Body Politic, A Corporate Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; KEN HECHLER, Secretary of State, in his Official Capacity, Defendants, v. BARBARA H. ALLEN; DONNA WILLIS, Parties in Interest. BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. DARRELL V. MCGRAW, JR., Attorney General, State of West Virginia, Personally and in his Official Capacity, Defendant-Appellant, and BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL STATE OF WEST VIRGINIA, A Body Politic, A Corporate Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; KEN HECHLER, Secretary of State, in his Official Capacity, Defendants, v. BARBARA H. ALLEN; DONNA WILLIS, Parties in Interest.

Subsequent History:  [**1]  As Amended April 2, 1997.

Suggestion for Rehearing En Banc Denied July 16, 1997, Reported at: 1997 U.S. App. LEXIS 17737.

Prior History: Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden II, Chief District Judge. (CA-94-952).

Disposition: No. 96-1652 is AFFIRMED. Nos. 96-1464 and 96-1601 are REVERSED AND REMANDED.

CORE TERMS

attorney-client, attorney general, documents, communications, qualified immunity, investigate, interviews, district court, immunity, government official, Bureau, employees, work product, common law, memorandum, cases, privileged, discovery, government agency, disclosure, questions, work product doctrine, public corporation, contempt, entity, former employee, confidentiality, engagement, protects, rights

Civil Rights Law, Immunity From Liability, Local Officials, Customs & Policies, Protection of Rights, Section 1983 Actions, Scope, Torts, Public Entity Liability, Liability, General Overview, Immunities, Qualified Immunity, Civil Procedure, Attorneys, Governments, State & Territorial Governments, Employees & Officials, Legislation, Interpretation, Administrative Law, Separation of Powers, Executive Controls, Business & Corporate Law, Corporate Formation, Corporate Existence, Powers & Purpose, Property, Local Governments, Evidence, Privileges, Attorney-Client Privilege, Waiver, Criminal Law & Procedure, Standards of Review, Clearly Erroneous Review, Elements, Appeals, Clearly Erroneous Review, De Novo Review, De Novo Review, Counsel, Right to Counsel, Exceptions, Privileged Communications, Work Product Doctrine, Psychotherapist-Patient Privilege, Fact Work Product, Opinion Work Product