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United States v. Jicarilla Apache Nation - 564 U.S. 162, 131 S. Ct. 2313 (2011)


The objectives of the attorney-client privilege apply to governmental clients. The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture. Unless applicable law provides otherwise, the government may invoke the attorney-client privilege in civil litigation to protect confidential communications between government officials and government attorneys


Respondent Jicarilla Apache Nation's (Tribe) reservation contains natural resources that are developed pursuant to statutes administered by the Interior Department. Proceeds from these resources are held by the United States in trust for the Tribe. The Tribe filed a breach-of-trust action in the Court of Federal Claims (CFC), seeking monetary damages for the Government's alleged mismanagement of the Tribe's trust funds in violation of 25 U.S.C. §§ 161a-162a and other laws. During discovery, the Tribe moved to compel production of certain documents. The Government agreed to release some of the documents, but asserted that others were protected by, inter alia, the attorney-client privilege. The CFC granted the motion in part, holding that departmental communications relating to the management of trust funds fall within a “fiduciary exception” to the attorney-client privilege. Under that exception, which courts have applied to common-law trusts, a trustee who obtains legal advice related to trust administration is precluded from asserting the attorney-client privilege against trust beneficiaries.

Denying the Government's petition for a writ of mandamus directing the CFC to vacate its production order, the Federal Circuit agreed with the CFC that the trust relationship between the United States and the Indian tribes is sufficiently similar to a private trust to justify applying the fiduciary exception. The appeals court held that the United States cannot deny a tribe's request to discover communications between the Government and its attorneys based on the attorney-client privilege when those communications concern management of an Indian trust and the Government has not claimed that it or its attorneys considered a specific competing interest in those communications.


Did the Government act as a fiduciary on behalf of the tribe and was thus precluded from asserting the attorney-client privilege against the tribe with regard to matters concerning management of the tribal trust?




The U.S. Supreme Court held that the common-law fiduciary exception to the attorney-client privilege did not apply to the general trust relationship between the Government and the tribe. Although the Government's management of the tribal trust bore some resemblance to a private trust, the Government's trust obligations to the tribe were established and governed by statute rather than the common law, and the Government acted pursuant to its sovereign interest in the execution of federal law rather than as a private trustee. Further, the tribe was not the real client since the Government did not use trust funds to obtain the legal advice, the Government sought advice in its sovereign capacity rather than as a private trustee, and the advice could be obtained to balance competing interests. Also, the Government's trust responsibilities were explicitly delineated by statute and did not include the common-law disclosure sought by the tribe.

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