Congressional Testimony and the Attorney-Client Privilege

January 15, 2018
 

An ancient legal privilege recently moved into the national spotlight, as a collection of people called to testify before Congress declined to answer questions, asserting the attorney-client privilege.  Subpoenaed witnesses have vigorously claimed this privilege in response to lawmakers’ inquiries. 

Unlike the Fifth Amendment’s privilege against self-incrimination, the attorney-client privilege is not identified in the Constitution.  So: what is this legal tool, that can shield and protect?  

The attorney-client privilege is very old.  The 1650s saw the first reported English common law cases noting its existence.  In those early cases, the client did not assert the privilege; rather, the attorney did so.  It was considered a matter of the attorney’s honor to decline to reveal client confidences.  Later cases refined the privilege, and by the 1830s, the privilege was recognized as protecting confidential communications between the lawyer and client, including matters where imminent litigation was not involved. 

In a 1981 case, Upjohn v. United States, the Supreme Court explained that the privilege is supposed to encourage clients to make “full and frank” disclosures to their attorneys, who can then better provide candid advice and effective representation.  This, the Court said, will serve the “broader public interests in the observance of law and administration of justice.”  In the 1998 case, Swidler v. Berlin, the Supreme Court determined that the privilege survives the death of the client.

Note that the privilege pertains only to confidential communications between the attorney and the client.  It does not shield communications between family members or other people.  So: if you tell your father what you and your lawyer discussed; if you review your attorney’s conversations with your best friend; if you bring your mother up-to-date on your lawyer’s thoughts, then you have likely waived the privilege, and those other people can be compelled to testify about what you said.  If you do not treat your communications with your lawyer as confidential, the court will not support your assertion of the privilege.

Finally, simply wanting a communication to be confidential does not give it that quality.  Unless the communication is actually a confidential attorney-client communication, it does not fall within the privilege.  So, witnesses cannot properly assert the privilege in response to Congressional questioning if a lawyer just happened to be in the room during conversations.

What can Congress do if a witness improperly asserts a privilege, or just declines to answer?  There is a remedy: Congress has the power to hold a person in contempt.  Contempt of Congress is not often used, but it can convey a message.  In 1974, G. Gordon Liddy was found guilty of two counts of Contempt of Congress for refusing to be sworn in, and for refusing to testify before a Special Subcommittee on Intelligence.  At the time, the Subcommittee was investigating something that we now simply call Watergate. 

Supreme Court Justice Louis Brandeis once said, “Behind every argument is someone’s ignorance.”   Ignorance of the parameters of the attorney-client privilege can result in the introduction of evidence that should have been protected.  Alternatively, it can lead to the suppression of important testimony that should have been admitted.