In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3386

In Re: A Witness before the Special
Grand Jury 2000-2.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 GJ 596--Marvin E. Aspen, Chief Judge.

Argued October 29, 2001--Decided April 23, 2002/1



  Before Flaum, Chief Judge, and Posner and
Diane P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. The central
question on this appeal is whether a
state government lawyer may refuse, on
the basis of the attorney-client
privilege, to disclose communications
with a state officeholder when faced with
a grand jury subpoena. The district court
found that in the context of a federal
criminal investigation, no such
government attorney-client privilege
existed. We agree with this
determination, and therefore affirm.

I

  Roger Bickel was employed by the state
of Illinois as Chief Legal Counsel to the
Secretary of State’s office during the
first four years of former Secretary (now
Governor) George Ryan’s administration.
Bickel provided legal counsel and advice
to Ryan and other Secretary of State
officials as they carried out their
public duties. Bickel has also served as
a personal lawyer to Ryan, his wife, and
Ryan’s campaign committee, Citizens for
Ryan, since at least 1989.

  For the past three years, federal
prosecutors have been investigating a
"licenses for bribes" scandal in the
Illinois Secretary of State’s office,
dubbed "Operation Safe Road." The alleged
(and in some instances admitted)
corruption extends to the improper
issuance of commercial drivers’ licenses,
specialty license plates, leases, and
other contracts; the improper use of
campaign funds for the personal benefit
of Secretary of State employees; and
obstruction of justice in connection with
internal office investigations. Because
of his role in advising then-Secretary
Ryan, federal prosecutors sought to
discuss these matters with Bickel.
Initially, they tried scheduling a
voluntary interview with him for this
purpose, but Ryan objected to the meeting
and advised both Bickel and the federal
prosecutors that he had not waived and
would not waive the attorney-client
privilege with respect to any of his
prior conversations with Bickel.

  After several avenues for resolving the
problem proved unsuccessful, the federal
prosecutors served a subpoena from the
grand jury that commanded Bickel to
appear and testify before that body about
all conversations he had with Ryan in his
official capacity as General Counsel.
They also obtained a motion to compel
Bickel to testify about those matters.
Finally, the United States secured a
letter from Illinois’ current Secretary
of State, Jesse White, in which the
latter purported to waive the Office’s
attorney-client privilege as to all of
Bickel’s official conversations with "all
personnel and officials of the Secretary
of State, regardless of their particular
position or office." Ryan continued to
oppose all efforts to obtain allegedly
privileged information from Bickel.

  On September 7, 2001, the district court
granted the United States’ motion to
compel, finding that no attorney-client
privilege attached to the communications
at issue, and, alternatively, that if a
privilege did attach, White had
effectively waived it. While the motion
to compel does not create a final
judgment, we permit clients to
immediately appeal a court order that
their attorney testify before a grand
jury under the exception recognized in
Perlman v. United States, 247 U.S. 7
(1918). See United States v. Evans, 113
F.3d 1457, 1458 (7th Cir. 1997); In re
Grand Jury Proceeding, 68 F.3d 193, 195
(7th Cir. 1995); United States v. Davis,
1 F.3d 606, 607 (7th Cir. 1993). We
therefore have jurisdiction over this
appeal.

II

  We review de novo the question whether
Ryan may invoke the attorney-client
privilege to shield Bickel’s testimony
before the federal grand jury. See Upjohn
Co. v. United States, 449 U.S. 383
(1981). The federal courts have authority
to recognize privilege claims under the
federal common law. Fed. R. Evid. 501.
While Rule 501 manifests a congressional
desire to grant courts the flexibility to
determine privileges on a case-by-case
basis, Trammel v. United States, 445 U.S.
40, 47 (1980), "these exceptions to the
demand for every man’s evidence are not
lightly created nor expansively
construed, for they are in derogation of
the search for truth." United States v.
Nixon, 418 U.S. 683, 710 (1974); In re
Grand Jury Proceedings, 220 F.3d 568, 571
(7th Cir. 2000).

  One of the oldest and most widely
recognized privileges is the attorney-
client privilege, which protects
confidential communications made between
clients and their attorneys for the
purpose of securing legal advice. Swidler
& Berlin v. United States, 524 U.S. 399,
403 (1998). It is well established that a
client may be either an individual or a
corporation. See, e.g., Upjohn, 449 U.S.
at 390. But here, we have a special case:
the client is neither a private
individual nor a private corporation. It
is instead the State of Illinois itself,
represented through one of its agencies.
There is surprisingly little case law on
whether a government agency may also be a
client for purposes of this privilege,
but both parties here concede that, at
least in the civil and regulatory
context, the government is entitled to
the same attorney-client privilege as any
other client. See Green v. IRS, 556 F.
Supp. 79, 85 (N.D. Ind. 1982) (privilege
"unquestionably" applies to conversations
between government lawyers and
administrative personnel), aff’d, 734
F.2d 18 (7th Cir. 1984); Restatement
(Third) of Law Governing Lawyers sec. 74
(2000) ("[T]he attorney-client privilege
extends to a communication of a
governmental organization."). We
therefore proceed on that basis.

  In the case of private parties, the
privilege functions identically in both
civil and criminal proceedings. Swidler,
524 U.S. at 408-09 (finding "no case
authority for the proposition that the
privilege applies differently in criminal
and civil cases"). The United States,
however, contends that the privilege
between a government attorney and her
official client does not extend to
criminal proceedings, such as a grand
jury investigation. It is supported in
that position by decisions of two courts
of appeals (both with thoughtful
dissents) arising from Independent
Counsel investigations of President
Clinton. See In re Lindsey, 158 F.3d 1263
(D.C. Cir. 1998); In re Grand Jury
Subpoena Duces Tecum, 112 F.3d 910 (8th
Cir. 1997). Ryan argues that those cases
were wrongly decided, at least insofar as
they might apply here to support a
distinction between governmental clients
and private clients.

  The first question we face is whether
recognizing a privilege in this case
would be an expansion of the current
scope of the attorney-client privilege,
or if a refusal to recognize the
privilege would amount to a contraction
of an existing privilege. Although this
may seem like two sides of the same coin,
it is not: the Supreme Court has
instructed us, in developing a federal
common law of privileges, to avoid either
derogating existing privileges or
extending privileges to new, uncharted
waters absent compelling considerations.
Jaffee v. Redmond, 518 U.S. 1, 9 (1996).
Unfortunately, there is no clear-cut
answer to this question because, outside
of former Secretary Ryan and the Clinton
administration, only one government body,
the Detroit City Council, has ever
attempted to claim such a privilege in
the criminal context. In re Grand Jury
Subpoena, 886 F.2d 135 (6th Cir. 1989).
Thus, one could argue either that, since
historically the privilege has never been
claimed, recognizing it would be an
extension, or that, since no court has
ever recognized a civil-criminal
distinction to the privilege, creating
one here would constitute an exception.

  While Swidler rejected a civil-criminal
distinction for the privilege as to
individuals, other courts have recognized
that the governmental context is
different, even after that decision, and
have limited the privilege for
governmental agencies in the criminal
context. See Lindsey, 158 F.3d at 1272.
This position is supported by the leading
treatise. 24 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice
and Procedure sec. 5475, at 125-27.
Furthermore, the pedigree of the
privilege recognized in Swidler was far
more impressive than the governmental
privilege for which Ryan argues here.
Swidler focused on whether the privilege
survived the death of the individual
client, a proposition that the common law
had assumed for over a century. Swidler,
524 U.S. at 404, citing Russell v.
Jackson, 68 Eng. Rep. 558 (V.C. 1851).
The government attorney-client privilege
has no such deep historical roots. We
therefore reject Ryan’s contention that
Swidler compels us to find an absolute
privilege in the criminal context just
because we acknowledge a government
attorney-client privilege in the civil
context. Even the dissenting judges in
the Clinton cases were unwilling to go so
far as this. Lindsey, 158 F.3d at 1283
(Tatel, J., dissenting) ("[G]overnment
lawyers working in executive departments
and agencies enjoy a reduced privilege in
the face of grand jury subpoenas"); Duces
Tecum, 112 F.3d at 935-38 (Kopf, J.,
dissenting) (finding that in criminal
context government could overcome
privilege through procedural protections
and specific showing of need). Compare
Branzburg v. Hayes, 408 U.S. 665 (1972)
(no First Amendment-based reporter’s
privilege to refuse to testify before
grand jury). Our decision here instead
must rest on whether the policy reasons
for recognizing an attorney-client
privilege in other contexts apply equally
when the United States seeks information
from a government lawyer.

  Ryan argues that they do. His main
contention is that the attorney-client
privilege has been created "to encourage
full and frank communication between
attorneys and their clients and thereby
promote broader public interests in the
observance of law and the administration
of justice." Upjohn, 449 U.S. at 389. If
government officials know that
conversations with attorneys in their
offices are not privileged, they will
avoid the candid discussion of sensitive
legal matters. Lindsey, 158 F.3d at 1286-
87 (Tatel, J., dissenting). This could
lead to more legal violations and
corruption in public office. Duces Tecum,
112 F.3d at 930-32 (Kopf, J.,
dissenting). Alternatively, uninformed
public officials afraid to obtain legal
advice will be unable effectively to
carry out their policy objectives,
hampering the implementation of
government programs. Id. at 932. Indeed,
absent a privilege, citizens might be
unwilling to serve in public office at
all.

  While we recognize the need for full and
frank communication between government
officials, we are more persuaded by the
serious arguments against extending the
attorney-client privilege to protect
communications between government lawyers
and the public officials they serve when
criminal proceedings are at issue. First,
government lawyers have responsibilities
and obligations different from those
facing members of the private bar. While
the latter are appropriately concerned
first and foremost with protecting their
clients--even those engaged in
wrongdoing-- from criminal charges and
public exposure, government lawyers have
a higher, competing duty to act in the
public interest. Lindsey, 158 F.3d at
1273; Comment to ABA Model Rule 1.13
(noting that government lawyers may have
higher duty to rectify wrongful official
acts despite general rule of
confidentiality). They take an oath,
separate from their bar oath, to uphold
the United States Constitution and the
laws of this nation (and usually the laws
of the state they serve when, as was the
case with Bickel, they are state
employees). Their compensation comes not
from a client whose interests they are
sworn to protect from the power of the
state, but from the state itself and the
public fisc./2 It would be both
unseemly and a misuse of public assets to
permit a public official to use a
taxpayer-provided attorney to conceal
from the taxpayers themselves otherwise
admissible evidence of financial
wrongdoing, official misconduct, or abuse
of power. Compare Nixon, 418 U.S. at 713
(qualified executive privilege applies in
the face of a criminal investigation).
Therefore, when another government lawyer
requires information as part of a
criminal investigation, the public lawyer
is obligated not to protect his
governmental client but to ensure its
compliance with the law.

  This discussion necessarily points out
another crucial difference between a
government lawyer’s clients and the
clients of other lawyers. Individuals and
corporations are both subject to criminal
liability for their transgressions.
Individuals will not talk and
corporations will have no incentive to
conduct or cooperate in internal
investigations if they know that any
information disclosed may be turned over
to authorities. Swidler, 524 U.S. at 407.
A state agency, however, cannot be held
criminally liable by either the state
itself or the federal government. See
United States v. Price, 383 U.S. 787, 810
(1967). There is thus no need to offer
the attorney-client privilege as an
incentive to increase compliance with the
laws. True, individual state employees
can be held liable, and many have been
found guilty of crimes in this very
investigation. But the privilege with
which we are concerned today runs to the
office, not to the employees in that
office. See Ill. Sup. Ct. R. 1.13 (2001)
(making clear that an organizational
lawyer’s duty is to the organization, not
the organization’s individual officers).
Just as a corporate attorney has no right
or obligation to keep otherwise
confidential information from
shareholders, Garner v. Wolfinbarger, 430
F.2d 1093, 1101 (5th Cir. 1970), so a
government attorney should have no
privilege to shield relevant information
from the public citizens to whom she owes
ultimate allegiance, as represented by
the grand jury. Branzburg, 408 U.S. at
688 (noting grand jury’s presumptive
"right to every man’s evidence").

  In formulating privileges, this court
cannot ignore the interests and
responsibilities of the coordinate
entities within our federal system, all
of which are sworn to uphold the public
interest and committed to the "general
duty of public service." Duces Tecum, 112
F.3d at 920. Public officials are not the
same as private citizens precisely
because they exercise the power of the
state. With this responsibility comes
also the responsibility to act in the
public interest. It follows that
interpersonal relationships between an
attorney for the state and a government
official acting in an official capacity
must be subordinated to the public
interest in good and open government,
leaving the government lawyer duty-bound
to report internal criminal violations,
not to shield them from public exposure.
Nixon, 418 U.S. at 712-13 (recognizing
executive interest in confidentiality may
be lessened in face of criminal
investigation); Lindsey, 158 F.3d at 1273
(noting public interest in "transparent
and accountable government").

  In the final analysis, reason and
experience dictate that the lack of
criminal liability for government
agencies and the duty of public lawyers
to uphold the law and foster an open and
accountable government outweigh any need
for a privilege in this context. An
officeholder wary of becoming enmeshed in
illegal acts may always consult with a
private attorney, and there the privilege
unquestionably would apply. While Ryan
fears that our refusal to recognize a
privilege will cause even the most
trivial of matters to be taken to outside
counsel, this strikes us as unduly
alarmist. In fact, analogous rules apply
in the corporate realm, where attorneys
are repeatedly admonished to advise
corporate officials that they are not
personal clients of the attorney and may
wish to retain other counsel. These rules
do not appear to have stifled corporate
discussion or proved impossible to
administer, and we see no reason why a
similar result cannot be countenanced
here.

  Ryan makes one final argument in favor
of his assertion of a governmental
privilege: in a word, federalism. He
notes that the two leading cases in this
area involved the assertion of a
privilege by a lawyer for the federal
government, vis a vis a federal
investigation. From this, he argues that
even if federal attorneys lack an
attorney-client privilege in criminal
proceedings, state-employed attorneys
should receive one. See Grand Jury
Subpoena, 886 F.2d at 138 (implicitly
finding that attorney for Detroit City
Council could assert privilege); Duces
Tecum, 112 F.3d at 917 (noting in dicta
that assertion by a state attorney
"implicates potentially serious
federalism concerns").

  Although we recognize the importance of
federalism in general, we do not see its
relevance to the present situation.
Neither of the cases on which Ryan relies
offered a square holding that an
attorney-client privilege exists between
state government lawyers and their state
clients that can override the interests
of a federal grand jury. The Eighth
Circuit’s assertion is dicta, and the
Sixth Circuit never analyzed the unique
features of a government-attorney-client
privilege, as it was focused almost
entirely on the question whether the
attorney’s advice in that case was even
confidential under state law. Grand Jury
Subpoena, 886 F.2d at 138-39. Now that
the question is before us, we can see no
reason why state government lawyers are
so different from federal government
lawyers that a different result is
justified. Although the Supreme Court has
recognized important Eleventh Amendment
limitations on the ability of private
parties to bring suits against the
states, it has made clear that the United
States may still sue a state to enforce
the nation’s laws. Alden v. Maine, 527
U.S. 706, 755 (1999); Monaco v.
Mississippi, 292 U.S. 313, 329 (1934).
This structural fact about our federal
system implies that state officials,
including state lawyers, likewise enjoy
no immunity from disclosing relevant
information to a federal grand jury. See
In re Special April 1977 Grand Jury, 581
F.2d 589, 592 (7th Cir. 1978).

  Finally, we note that the federal courts
have never afforded an evidentiary
privilege to the states that is not also
afforded to the federal government. In
fact, the most pertinent case from the
Supreme Court cuts the other way. In
United States v. Gillock, 445 U.S. 360,
370-73 (1980), the Court refused to
acknowledge a privilege in a criminal
proceeding for statements made by a state
senator, even though similar statements
would have been privileged under the
Speech or Debate Clause, U.S. Const. Art.
I, sec. 6, cl. 1, if they had been made
by a federal legislator. The Court
rejected the idea that either separation
of powers or comity required the
judiciary to create a privilege in favor
of state governments. Instead, "where
important federal interests are at stake,
as in the enforcement of federal criminal
statutes, comity yields." Id. at 373.
Thus, a state privilege should not be
recognized if it will impair legitimate
federal interests and provide "only
speculative benefit" to a state official.
Id. Having already determined that the
policy reasons behind the attorney-client
privilege do not justify its extension to
government attorneys in the context of
criminal investigations, we decline the
invitation to make any distinction
between state and federal attorneys for
ill-defined reasons of federalism.

III

  The district court also determined that
the current Secretary of State, Secretary
White, was the holder of his Office’s
attorney-client privilege and had the
power to waive that privilege as to
conversations occurring before he took
office. In light of our holding that none
of the conversations between Bickel and
Ryan made in their official capacities as
General Counsel and Secretary of State
are privileged in the face of a federal
grand jury subpoena, we express no
opinion on this determination. The
judgment of the district court is Affirmed.

FOOTNOTES

/1 This opinion was initially released in
typescript.

/2 Of course, a state may provide an officeholder
with an individual taxpayer-provided attorney to
represent her in, for example, a Bivens action or
an independent counsel investigation and could
perhaps even specify by statute that the first
duty of an agency’s general counsel ran always to
the head of the agency as individual rather than
officer. Here, however, there is no indication
that Illinois has abrogated the traditional
understanding that an organizational attorney’s
client is the organization.
