On Petition for a Writ of Certiorari to The United States Court of Appeals for The Eighth Circuit, Brief of Law Professors Paul F. Rothstein, et. al., Office of the President v. Office of Independent Counsel
This Court should grant review not only because this is a case of national importance and prominence, but also because the decision below is a conspicuous departure from settled principles of evidence law. The panel majority concluded that communications between government lawyers and government officials are not protected by the attorney-client privilege, at least when those communications are sought by a federal grand jury. That conclusion conflicts with the predominant common-law understanding that the attorney-client privilege applies to government entities and that where the privilege applies, it is absolute (i.e., it protects against disclosure in all types of legal and investigative proceedings). In particular, the Court of Appeals' decision rests on a fundamental misunderstanding of this Court's decisions in Upjohn Co. v. United States, 449 U.S. 383 (1981), and United States v. Nixon, 418 U.s. 683 (1974).
Moreover, this case warrants further review because the decision below has profound implications beyond the parties to this dispute. The Court of Appeals' ruling, if allowed to stand, will create widespread uncertainty among federal, state, and local officials concerning the extent to which their communications with their agency lawyers, for the purpose of seeking legal advice in the conduct of governmental affairs, are protected by the attorney-client privilege. Unless this Court grants review and resolves this uncertainty, the decision below will likely have an adverse effect on the current and future operation of not only the Office of the President of the United States, but also government at all levels. At the very least, a decision of such vast implications (as in the present case) should be made by the highest court in the land. We accordingly urge the Court to grant the petition for review.
Rothstein, Paul F.; Allen, Ronald J.; Berger, Margaret A.; Bridge, William J.; Giannelli, Paul C.; Gillers, Stephen; Kirkpatrick, Laird C.; Leonard, David P.; Mendez, Miguel A.; Park, Roger C.; Raeder, Myrna S.; Reed, John W.; Reutlinger, Mark; Romero, Leo M.; Saltzburg, Stephen A.; and Tillers, Peter, "On Petition for a Writ of Certiorari to The United States Court of Appeals for The Eighth Circuit, Brief of Law Professors Paul F. Rothstein, et. al., Office of the President v. Office of Independent Counsel" (1997). U.S. Supreme Court Briefs. 77.