Recently, we were approached by a federal employee with an interesting problem. The employee is an attorney in an agency’s General Counsel’s office. The employee had concerns about discrimination and asked the appropriate supervisor for official time to seek legal advice with respect to those concerns. Regulations issued by the Equal Employment Opportunity Commission make clear that official time is available for this purpose. 29 C.F.R. § 1614.605(b).
In response, the agency’s General Counsel issued an instruction to all subordinate attorneys. That instruction limited the ability of those attorneys to disclose, while seeking legal advice from an outside lawyer, information obtained from agency employees, and included the following:
• almost any communication from an agency employee to an agency attorney is presumed to be protected by the attorney-client privilege unless one of the following exceptions applies:
a) The attorney justifies release under bar rules applicable to him/her and obtains approval from the General Counsel to release the information outside the agency;
b. Prior to any conversation with an agency employee, the attorney must state that he/she is acting in his/her own interest and not as agency counsel; and
• If an attorney decides to disclose outside the agency the substance of conversations with agency employees, he/she must disclose the substance of that conversation to the General Counsel beforehand so that appropriate remedial action can be taken.
The instruction also stated that an attorney’s violation of these rules would warrant a notice to every jurisdiction in which the attorney was licensed. Needless to say, the employee who consulted us was petrified that meeting with an outside lawyer about a possible claim of discrimination could result in the loss of the right to practice law.
The agency’s restrictions are incompatible with the attorney-client relationship that exists in the United States. In 1982, the U.S. Court of Appeals for the District of Columbia Circuit considered a similar edict issued to employees of the Department of Justice who sought to challenge a reduction-in-force (RIF). The memorandum issued to those employees stated as follows:
You may not provide information or documents to the attorney representing these employees or to any other person assisting the employees or that attorney. In addition, there is a Department of Justice regulatory procedure governing the release of information involving litigation (See 28 C.F.R. § 16.21 et seq.). Employees are prohibited from releasing any information, producing any materials or disclosing any information in those materials except with the approval of the appropriate Department official which in this matter would be the Assistant Attorney-General of the Civil Division.
The memorandum concluded by warning that “immediate and appropriate disciplinary action (would be taken) to assure that the government’s interests are protected.”
In Martin v. Lauer, 686 F.2d 24 (D.C.Cir. 1982), the D.C. Circuit rejected that memorandum. The ability of federal employees to speak freely is subject to a balancing of the interests of the employee and the government, depending upon the type of speech, the nature of the agency, and the context in which the speech is uttered. In the case of the Justice Department employees, the court held that the memorandum was aimed directly at communications between attorney and client, thereby threatening the attorney-client privilege:
Restrictions on speech between attorneys and their clients directly undermine the ability of attorneys to offer sound legal advice. As the common law has long recognized, the right to confer with counsel would be hollow if those consulting counsel could not speak freely about their legal problems. Through the attorney-client privilege, the common law “encourage(s) full and frank discussions between attorneys and their clients and thereby promote(s) broader public interests in the observance of law and the administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends on the lawyer being fully informed by the client.” Limitations on the attorney-client privilege have therefore been drawn narrowly, to remove the privilege only where the privileged relationship is abused. Absent such abuse, or a waiver of the privilege, our legal system jealously protects the confidential status of attorney-client communications. Although an adversary may ordinarily inquire as to what the client knows, he “ ‘cannot (compel him) to answer the question ”What did you say or write to your attorney?’ ”
Martin, 686 F.2d at 32-33 (citations omitted).
In 2000, the Justice Department found itself again embroiled in a dispute over its efforts to prevent employees from disclosing information to their attorneys. Jacobs v. Schiffer, 204 F.3d 259 (D.C.Cir. 2000). Reminding the Department that the issue had already been decided in Martin, the court emphasized the importance of allowing clients to have the unfettered ability to talk to their attorneys, as long as there was little danger the attorney would disclose that information to the general public:
It thus has long been clear that the First Amendment does not provide a federal employee seeking legal advice regarding a dispute with the employing agency with carte blanche authority to disclose any and all confidential government information to the employee’s attorney, but rather that the scope of the First Amendment right is determined by balancing the employee’s interests in communication with the government’s interests in preventing communication. Relevant to this balancing is whether the attorney is likely to keep this information in confidence, as suggested by willingness to enter into a protective order, or whether such communications to the personal attorney will operate as a de facto public disclosure. Where, as here, there was no evidence to suggest that Jacobs’ attorney would publicly disclose the information Jacobs sought to communicate, the First Amendment required a balancing of interests beyond the balance between disclosure and non-disclosure under the Freedom of Information Act. Understandably, the Department would be concerned about giving carte blanche approval of unlimited disclosures to one of its attorneys who has access to a broad range of potentially sensitive, non-public information and who is challenging its management of litigation. But the reasonableness of the Department’s position with respect to Jacobs’ free speech claim regarding his attorney must be evaluated in light of Martin. In that regard it bears noting that in Martin the court observed, albeit in dictum, that in the whistle-blower context, where a legal question arises as to whether a contemplated public disclosure would be prohibited by law, “[s]urely, [the employee] must be allowed to consult his attorney for an answer to that question absent some strong governmental interest in limiting such communications.” Martin, 686 F.2d at 33 n. 41.
Jacobs, 204 F.3d at 265-66.
In sum, while public employers may want to limit their employees’ ability to hire a lawyer to help protect their rights, those employers may not do so absent some legitimate interest (such as national security). As long as the lawyer keeps confidential the information conveyed by a prospective or actual client, the government’s interest in limiting the lawyer’s ability to advise the client is very slight. (As an aside, without explanation the agency withdrew within a couple of days the instructions issued at the top of this blog.)