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United States v. Doe (In re Grand Jury Investigation) - 399 F.3d 527 (2d Cir. 2005)


In light of the common-law roots of the attorney-client privilege and the attendant principle (evident in case law stretching back at least a century) that safeguarding client confidences promotes, rather than undermines, compliance with the law, the United States Court of Appeals for the Second Circuit believes it best to proceed cautiously when asked to narrow the privilege's protections in a particular category of cases. The court is aware, of course, that even existing privileges are not to be expansively construed, as they are in derogation of the search for truth, and that the attorney-client privilege, in particular, applies only where necessary to achieve its purpose. But this admonishment does not invite a wholesale reassessment of the privilege's utility whenever it is invoked under previously unexplored circumstances. Instead, the court's application of the privilege in a "new" context remains informed by the long-standing principles and assumptions that underlie its application in more familiar territory.


In the course of investigating whether the governor of Connecticut and members of his staff had received gifts from private individuals and entities in return for public favors, including the favorable negotiation and awarding of state contracts, a federal grand jury subpoenaed the testimony of the former chief legal counsel to the Office of the Governor. The chief legal counsel refused to testify as to conversations she had with the former governor and his staff, contending that they were confidential and conducted for the purpose of providing legal advice, and therefore, were protected by the attorney-client privilege. 


Were the contents of confidential conversations the former chief legal counsel to the Office of the Governor had with the former governor and members of his staff protected by the attorney-client privilege?




The Court of Appeals for the Second Circuit held that the traditional rationale for the privilege applied with special force in the government context because it was crucial that government officials, who were expected to uphold and execute the law and who could face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice.

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