Indiana Law Review Indiana Law Review Volume 33 1999 Number 1 NOTES inrelindseyi a needless void in the government Attorney-Client Privilege Amanda J. DicKMANN* / Introduction "I did not have sexual relations with that woman—Miss Lewinsky. "^ When President Clinton looked straight into the camera and spoke these infamous words in January 1998, perhaps the only other person who knew the misleading nature of this statement was Bruce Lindsey, Deputy White House Counsel and Assistant to the President. IfPresident Clinton had not admitted to an "inappropriate" relationship with Monica Lewinsky in August 1998,^ prior to In re Lindsey^ the government attorney-client privilege would have protected Bruce Lindsey's knowledge ofthis relationship, despite the fact that Independent Counsel Kenneth Starr issued a subpoena to Bruce Lindsey in the course of a criminal investigation. However, as this Note will demonstrate, In re Lindsey has changed the status of the government attorney-client privilege. The President, members of Congress, and legal clients have consistently enjoyed protection for their confidential communications via the Executive Privilege,"^ Speech and Debate Clause,^ and attorney-client J.D. Candidate, 2000, Indiana University School of Law—Indianapolis; B.A., 1997, Indiana University—Bloomington. 1. President Clinton denied he had a sexual relationship with Monica Lewinsky on Monday, January 26, 1998. See 'I Never Told Anybody to Lie. ' Ottawa Sun, Mar. 29, 1998, at 26. 2. President Clinton admitted he had an "inappropriate" relationship with Monica Lewinsky on Monday, August 17, 1998. See 'IMisledPeople, Even My Wife, ' Ottawa SUN, Aug. 18, 1998, at 4. 3. 158 F.3d 1263 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 1 19 S. Ct. 466 (1998) (mem.). 4. The executive privilege is a "broad, constitutionally derived privilege that protects frank debate between President and advisers." Id. at 1285 (Tatel, J., dissenting) (citing United States v. Nixon, 418 U.S. 683, 708 (1974)). 5. The Speech and Debate Clause states that Senators and Representatives shall be privileged for "[a]ny Speech or Debate in either House, [and] they shall not be questioned in any other Place." U.S. CONST, art. I, § 6. 292 INDIANA LAW REVIEW [Vol. 33:291 privilege;^ however, government attorneys and officials have only periodically received protection for their confidential communications.^ This inequality has primarily derived from the special duty of government attorneys to uphold the public trust reposed in them, and has produced the government attorney-client privilege, a creature of common law that grew out of the traditional attorney-client privilege.^ Courts have sporadically applied this privilege, and until In re Liudsey, many commentators questioned the viability of the government attorney-client privilege in a court of law.^ In re Lindsey acknowledged the privilege's existence; however, it restricted the privilege by dissolving protection for confidential communications between government attorneys and officials in the context of a criminal investigation. '° Commentators have mixed reactions to In re Lindsey. Some support an absolute government attorney-client privilege that would protect candor and frank communications that the attorney-client privilege embodies in every other context.*' Others support a qualified government attorney-client privilege that stresses the public's interest in uncovering illegality among its elected and appointed officials. In re Lindsey chooses the qualified government attorney- client privilege. Similar to the executive privilege, the government attorney- client privilege evaporates when a criminal investigation ensues. Unlike the executive privilege, absolute protection does not extend when the subject matter sought to be exposed relates to military, diplomatic, or sensitive national security secrets. The court's failure to address the possibility of revealing military, diplomatic, or sensitive national security secrets has left a void in the In re Lindsey decision that needs to be filled. Part I ofthis Note outlines the attorney-client privilege, distinguishes it from the principle of confidentiality and the executive privilege, and provides the derivation and scope ofthe government attorney-client privilege. Part II ofthis Note analyzes In re Lindsey and the cases leading up to it. In re Grand Jury 6. See Fed. R. Evid. 501. "[T]he privilege of a witness, person, government. State, or political subdivision thereof shall be governed by the principles ofthe common law as they may be interpreted by the courts of the United States in the light of reason and experience." Id. 7. See News & Observer Publ'g Co. v. Poole, 412 S.E.2d 7, 17 (N.C. 1992) ("So far this Court has not recognized an attorney-client privilege for public entity clients, and it is unclear whether the traditional privilege should be so extended. Most courts that have applied such a privilege have not considered its origin but have merely assumed it exists.") (citation omitted). 8. See In re Lindsey, 1 58 F.3d at 1 273. 9. See Loser: Attorney-Client Privilege, LEGAL TIMES, Dec. 22/29, 1997, at 1 5 (quoting former White House Counsel C. Boyden Gray, "I'm not sure there is any such thing as [a] governmental attorney-client privilege now."). 10. See In re Lindsey, 158 F.3d at 1278. 11. See Ruth Marcus, Court Rejects Privilege Claim, WASH. POST, July 28, 1998, at Al . 1 999] INRE LINDSEY 293 Subpoena Duces Tecum^^ and In re GrandJury Proceedings. '^ Part III visits the aftermath of /« re Lindsey, particularly the legal commentary and the alleged repercussions this decision may produce for government attorneys and officials. Part IV addresses a proposed alteration to In re Lindsey and offers its own modification to the government attorney-client privilege—extension ofabsolute protection to confidential communications containing military, diplomatic, or sensitive national security secrets. Finally, this Note concludes with recommendations for government attorneys and officials in light of the restrictions In re Lindsey has placed on the government attorney-client privilege. I. Evolution of the Government Attorney-Client Privilege A . The Attorney-Client Privilege Federal Rule of Evidence 501, the foundation for the attorney-client privilege,''* states that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles ofthe common law as they may be interpreted by the courts of the United States in the light of reason and experience."'^ The attorney-client privilege, the oldest privilege for confidential communications at common law, furnishes protection to communications made between client and attorney by forbidding disclosure.'^ By utilizing the attorney-client privilege, a client may refuse to disclose confidential communications and may also prevent his attorney from disclosing confidential communications that were made for the purpose of obtaining legal guidance.'^ The identity of a client, underlying facts, and incidental 12. 112 F.3d 910 (8th Cir.), cert, denied. Office of President v. Office of Indep. Counsel, 521 U.S. 1105(1997). 13. 5 F. Supp.2d 21 (D.D.C.), affdin part, rev 'din part sub nom. In re Lindsey, 158 F.3d 1263 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 1 19 S. Ct. 466 (1998) (mem.). 14. The elements of the attorney-client privilege are: (1) The asserted holder is or sought to become a client; (2) the person to whom the communication was made is a member of the bar, or his subordinate, and, in connection with the communication, is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed by the client, without the presence of strangers, and for the purpose of securing primarily either a legal opinion, legal services, or assistance in some legal proceeding; (4) the communication was not for the purpose of committing a crime or tort; and (5) the privilege has been claimed and not waived by the client. See United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). 15. FED.R.EVID. 501. 1 6. See Michael J. Chepiga, FederalAttorney-Client Privilege and WorkProduct Doctrine, in Current Developments IN Federal Civil Practice 1998, at 473, 476 (PLI Litig. & Admin. Practice Course Handbook Series No. 583, 1998). 17. See Proposed Fed. R. Evid. 503(b). Although this rule has not been enacted, it has been recognized as "a powerful and complete summary of black-letter principles of lawyer-client privilege." 3 Weinstein's Federal Evidence § 503.02, at 503-10 (McLaughlin 2d ed. 1997). 294 INDIANA LAW REVIEW [Vol. 33:291 communications are generally not protected by the attorney-client privilege,^^ but an exception applies when the person asserting the privilege can show the possibility that disclosure would implicate the client in the very criminal activity for which the client sought legal advice.*^ Although privileges generally are in "derogation ofthe search for truth"^^ and contravene the fundamental maxim that the "public . . . has a right to every man's evidence,"^' the attorney-client privilege "promotes the attorney-client relationship, and, indirectly, the functioning of our legal system, by protecting the confidentiality ofcommunications between clients and their attorneys."^^ As a consequence, the attorney-client privilege promotes the "broader public interests in the observance of law and administration ofjustice."^^ As a result of the conflicting principles inherent in seeking out the truth and protecting confidential communications between attorneys and clients, courts have determined that the attorney-client privilege is not absolute and must be strictly construed. Therefore, the privilege is recognized "only to the very limited extent that permitting a refusal to testify . . . has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."^"^ This public good must be shown "with a high degree of clarity and certainty" in order to apply the attorney-client privilege.^^ In addition to the public good requirement, other limitations exist in asserting the attorney-client privilege. The crime-fraud exception exempts from the attorney-client privilege communications made in furtherance of future or ongoing criminal or fraudulent conduct, including other wrongful conduct such as intentional torts.^^ Another example is the at-issue exception, which provides that a party may have effectively waived the attorney-client privilege through an 1 8. See Chepiga, supra note 16, at 479. 19. See id. (citing In re Grand Jury, 631 F.2d 17, 19 (3d. Cir. 1980)). 20. United States V.Nixon, 418 U.S. 683, 710 (1974). 21. In re Grand Jury Subpoena Duces Tecum, 1 1 2 F.3d 91 0, 91 7-1 8 (8th Cir.), cert, denied. Office of President v. Office of Indep. Counsel, 521 U.S. 1 105 (1997). 22. Westinghouse Elec. Corp. v. Republic ofthe Philippines, 95 1 F.2d 1 4 1 4, 1 428 (3d. Cir. 1991). 23. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 24. In re Grand Jury Proceedings, 5 F. Supp.2d 21,30 (D.D.C.) (emphasis added), aff'd in part, rev 'd in part sub nom. In re Lindsey, 158 F.3d 1263 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 1 19 S. Ct. 466(1998) (mem.) (quoting Trammel V. United States, 445 U.S. 40, 50 (1980)). See also In re Lindsey, 158 F.3d at 1268 ("[FJederal courts do not recognize evidentiary privileges unless doing so 'promotes sufficiently important interests to outweigh the need for probative evidence.'") (citation omitted). 25. In re Sealed Case, 148 F.3d 1073, 1076 (D.C. Cir.), cert, denied, Rubin v. United States, 119S.Ct. 461(1998). 26. See Chepiga, supra note 16, at 485; see also United States v. Zolin, 491 U.S. 554, 561 (1989) (holding that the general policy for the crime-fraud exception is "to assure that the 'seal of secrecy' between lawyer and client does not extend to communications made for [the] purpose of getting advice for [the] commission of a fraud or a crime") (citations omitted). 1 999] INRE LINDSEY 295 affirmative act, such as filing suit, that puts protected information at issue by making it relevant to the case.^^ Finally, the self-defense exception allows an attorney to override the client's privilege in order to defend himself against accusations of wrongful conduct.^* These exceptions ensure that the truth is revealed in situations where a compelling public good outweighs a refusal to testify. B. The Principle ofConfidentiality and the Executive Privilege The principle of confidentiality is often entangled with the attorney-client privilege.^^ The principle ofconfidentiality is rooted in professional ethics while the attorney-client privilege is rooted in the law ofevidence.^^ As to the principle of confidentiality. Model Rule of Professional Conduct 1.6 states: A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation .... A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or to establish a claim or defense on behalf of the lawyer . . . ?^ The critical difference between the attorney-client privilege and the principle ofconfidentiality is that the attorney-client privilege applies injudicial and other proceedings in which a lawyer may be called as a witness while the principle of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.^^ Furthermore, the principle of confidentiality applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its 27. See Chepiga, supra note 16, at 488; see also Heam v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975) (holding that the at-issue exception provides that a party may have waived the privilege when (1) the assertion ofthe privilege was a resuh of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party put protected information at issue by making it relevant to the case; and (3) application of the privilege would deny the opposing party access to information vital to its defense). 28. See Chepiga, supra note 1 6, at 490; see also Meyerhofer v. Empire Fire & Marine Ins., 497 F.2d 1190, 1194-96 (2d Cir. 1974) (holding that an attorney who had been named as a defendant in a class action brought by the purchasers of the securities who claimed that the prospectus contained misrepresentations had the right to make an appropriate disclosure to counsel representing the stockholders as to his role in the public offering). 29. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1 .6 cmt. 5 ( 1 995) ("The principle of confidentiality is given effect in two related bodies of law, the attorney client privilege . . . and the rule of confidentiality . . . .") (emphasis added). 30. See id 3 1 . MODEL Rules of Professional Conduct Rule 1.6(1 995). 32. See id at cmt. 5 (1995). 296 INDIANA LAW REVIEW [Vol. 33:291 source.^^ The executive privilege is also confused with the attorney-client privilege. The executive privilege is a "broad, constitutionally derived privilege that protects frank debate between President and advisers"^"^ while the attorney-client privilege is a much narrower privilege that emanates from the common law. Although the President may utilize the attorney-client privilege, the executive privilege is exclusive to the President. The landmark case United States v. Nixon^^ carved out the executive privilege from the U.S. Constitution. The Court created the executive privilege in part to equip the President with a comparable protection that members ofthe House and Senate are afforded under the Speech and Debate Clause^^ in the U.S. Constitution.^^ In creating this privilege, the Court reasoned that the "President's need for complete candor and objectivity from advisers calls for great deference from the courts."^^ However, the Court fashioned an exception to the executive privilege by holding that the executive privilege is not absolute and must ultimately yield to the specific need for evidence in a criminal investigation, unless the investigation encompasses military, diplomatic, or sensitive national security secrets. C Derivation and Scope ofthe Government Attorney-Client Privilege In addition to the attorney-client privilege, many other privileges have been recognized, such as the psychotherapist-patient privilege,"*^ husband-wife privilege,"*' and corporate attorney-client privilege."*^ A more recent addition to this list is the government attorney-client privilege. "Courts, commentators, and government lawyers have long recognized a government attorney-client privilege 33. See id. 34. In re Lindsey, 158 F.3d 1263, 1285 (D.C. Cir.) (Tatel, J., dissenting), cert, denied. Office ofPresident v. Office of Indep. Counsel, 1 19 S. Ct. 466 (1998) (mem.) (citing United States V. Nixon, 418 U.S. 683, 708 (1974)). 35. 418 U.S. 683 (1974). 36. The Speech and Debate Clause states that Senators and Representatives shall be privileged for "[ajny Speech or Debate in either House, [and] they shall not be questioned in any other Place." U.S. CONST, art. 1, § 6. 37. 5'eeMjco/2, 418U.S. at704. 38. Id at 706. 39. See id 40. 5ee Jaffee V. Redmond, 518 U.S. 1 (1996) (observing that this privilege would serve the public interest by facilitating the provision ofappropriate treatment for individuals who suffer from mental or emotional problems); PROPOSED FED. R. EviD. 504. 41. See Trammel v. United States, 445 U.S. 40 (1980) (recognizing two distinct spousal privileges: testimonial and communications); Proposed Fed. R. Evid. 505. 42. See Upjohn Co. v. United States, 449 U.S. 383 (1981) (extending the attorney-client privilege to communications made between corporate counsel and all-level corporate employees, as long as the communications concern matters within the scope of employment). 1 999] INRE LINDSEY 297 in several contexts.'"*^ Although this privilege was not universal and guaranteed prior to In re Lindsey^^"^ case law, litigation concerning the Freedom of Information Act, and secondary authority did endorse a comprehensive government attorney-client privilege. Although there are no Federal Rules of Evidence that acknowledge a government attorney-client privilege, precedent on this subject exists in both federal'*^ and state"^^ case law. An example of a federal case recognizing the government attorney-client privilege is Green v. InternalRevenue Service.^^ The district court, reiterating the Seventh Circuit, recognized the privilege on the basis of important underlying policy considerations."*^ The Seventh Circuit had stressed that the government attorney-client privilege promotes frank 43. In re Lindsey, 158 F.3d 1263, 1268 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 1 19 S. Ct. 466 (1998) (mem.). 44. See 24 CHARLES ALAN WRIGHT& KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND Procedure § 5475, at 128 (1986) ("Whatever the merits of the arguments for and against the governmental privilege, it seems likely thdX some form ofprivilege for governmental clients will be recognized by federal courts . . . .") (emphasis added), 45. See, e.g.. Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (assuming the government attorney-client privilege exists, but never explicitly deciding); In re Grand Jury Subpoena, 886 F.2d 135 (6th Cir. 1989) (assuming that a governmental entity, such as a municipal corporation, may invoke the attorney-client privilege); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1 980) (dicta); In re Polypropylene Carpet Antitrust Litig., 1 8 1 F.R.D. 680, 694 (N.D. Ga. 1998) (holding that the attorney-client privilege applies to a governmental entity when it seeks advice to protect personal interests and needs the same assurance ofconfidentiality so it will not be deterred from full and frank communications); Scott Paper Co. v. United States, 943 F. Supp. 489, 499 (E.D. Pa.), aff'd, 943 F. Supp. 501 (E.D. Pa. 1 996) ("In claims ofattorney-client privilege by an organization, such as a governmental agency or corporation, the privilege extends to those communications between the attorney and all agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication."). 46. See, e.g.. People ex rel. Dep't of Pub. Works v. Glen Arms Estate, Inc., 41 Cal. Rptr. 303, 310 (Cal. Ct. App. 1964) (holding that the privilege for governmental agencies is determined in the same way as the privilege for private corporations); City ofOrlando v. Desjardins, 493 So.2d 1027, 1029 (Fla. 1986) (finding an exception under state open-files statute); District Attorney v. Board of Selectmen, 481 N.E.2d 1128, 1130 (Mass. 1985) (finding an exception to the open- meeting law, but refusing to recognize an implicit exception for non-litigation consultation); Minneapolis Star & Tribune v. Housing & Redevelopment Auth., 25 1 N.W.2d 620, 624-25 (Minn. 1 976) (holding that state open-meeting laws implicitly exempt meetings between agency and lawyer for purposes of discussing pending litigation); Matter of Grand Jury Subpoenas Duces Tecum Served by Sussex County Grand Jury on Farber, 574 A.2d 449, 455 (N.J. Super. Ct. App. Div. 1989) ("[W]e are convinced that many of the considerations which underlie application of the attorney-client privilege to corporations militate strongly in favor of its extension to public entities."). 47. 556 F. Supp. 79 (N.D. Ind. 1982), aff'd, 734 F.2d 18 (7th Cir. 1984). 48. See id at 84. 298 INDIANA LAW REVIEW [Vol. 33:291 communications among those who make meaningful decisions regarding governmental functions/^ The Seventh Circuit had also recognized that the privilege was designed to shield from disclosure the mental processes of executive and administrative personnel. ^° An example of a state case upholding the government attorney-client privilege is Markowski v. City of Marlin.^^ The Texas court extended the privilege to governmental entities because "a governmental body has as much right as an individual to consult with its attorney without risking the disclosure of important confidential information."^^ The Texas court reasoned that because a governing body may consult privately with its attorney, logic prescribes that the information disclosed should be protected.^^ However, the Texas court mandated that a "checking" mechanism be applied to claims of the government attorney- client privilege.^"* In order to justify the privilege, the Texas court required the proponents to submit the alleged privileged documents or communications to an in camera inspection. ^^ Although a great deal of general case law exists, most of the law on the government attorney-client privilege has primarily developed from litigation^^ concerning exemption five of the Freedom of Information Act^^ ("FOIA"). Under this exemption, "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency"^^ are excused from mandatory disclosure to the public. "Exemption five does not itself create a government attorney-client privilege."^^ Rather, it creates an effective government attorney-client privilege only "when the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors."^*^ 49. See id. 50. See id. 51. 940 S.W.2d 720 (Tex. App. 1997). 52. Id at 726. 53. See id dX 121. 54. Id 55. See id. 56. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975); Mead Data Ctr., Inc. V. United States Dep't of Air Force, 566 F.2d 242, 252-53 (D,C. Cir. 1977); Porter County Chapter of Izaak Walton League v. United States Atomic Energy Comm'n, 380 F. Supp. 630, 637 (N.D. Ind. 1974). 57. 5 U.S.C. § 552 (1994). The Freedom ofInformation Act is a "broadly conceived statute which seeks to permit public access to much previously withheld official information." Izaak Walton League, 380 F. Supp. at 636. 58. 5 U.S.C. § 552(b)(5). 59. In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 1 19 S. Ct. 466 (1998) (mem.). 60. Id (quoting Coastal States Gas Corp. v. Department ofEnergy, 6 1 7 F.2d 854, 863 (D.C. 1 999] INRE LINDSEY 299 The proposed, but never enacted. Federal Rule of Evidence 503 lends additional support for the government attorney-client privilege, and courts have often turned to it as evidence of the black-letter law.^' Proposed Federal Rule 503 defines "client" for the purposes ofthe attorney-client privilege as a "person, public officer, or corporation, association, or other organization or entity, either public or private."^^ The advisory committee's notes to the proposed rule clarify that the attorney-client privilege extends to communications of governmental organizations.^^ Finally, the Restatement (Third) of the Law Governing Lawyers advocates support for the government attorney-client privilege.^ However, the commentary emphasizes that the privilege for governmental clients is much narrower than the attorney-client privilege due to statutory formulations, such as open-meeting and open-file statutes, that reflect a public policy against secrecy in many areas of governmental activity .^^ As the above-mentioned authority reflects, the scope of the government attorney-client privilege was broad prior to In re Lindsey. It protected the processes by which a decision was reached, extraneous matters considered, contributing factors, and the role played by the work ofothers.^^ The government attorney-client privilege also protected "government documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated."^^ In certain circumstances, the government could even invoke this privilege with regard to state and military secrets.^* Although this privilege was broad, no legal precedent existed determining Cir. 1980)); see also Confidentiality ofthe Attorney General's Communications in Counseling the President, 6 Op. Off. Legal Counsel 481, 495 (1982) ("[T]he privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the FOIA."). 61. See, e.g.. In re Lindsey, 158 F.3d at 1269. 62. Proposed Fed. R. Evid. 503 (a)( 1 ). 63. See PROPOSED FED. R. EviD. 503 advisory committee's note. 64. See RESTATEMENT (Third) of the Law Governing Lawyers § 1 24 (Proposed Final Draft No. 1 , 1 996) ("[T]he attorney-client privilege extends to a communication ofa governmental organization "). The American Law Institute has approved the chapter ofProposed Final Draft No. 1 of the Restatement governing the attorney-client privilege. See In re Grand Jury Subpoena Duces Tecum, 1 12 F.3d 910, 916 n.4 (8th Cir.), cert, denied. Office of the President v. Office of Indep. Counsel, 521 U.S. 1 105 (1997) (citing 64 U.S.L.W. 2739 (1996)). 65 . See RESTATEMENT (Third) of theLaw Governing Lawyers § 1 24 cmt. b (Proposed Final Draft No. 1, 1996). 66. See Green v. IRS, 556 F. Supp. 79, 84 (N.D. Ind. 1982), affd, 734 F.2d 18 (7th Cir. 1984) (citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966)). 67. Jacob Mertens, Jr., TheLawof Federal IncomeTaxation § 58A.34 ( 1 997) (citing Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963)). 68. See id. (citing E.W. Bliss Co. v. United States, 203 F. Supp. 175 (N.D. Ohio 1961)). 300 INDIANA LAW REVIEW [Vol. 33:291 whether this privilege applied in a criminal investigation.^^ The logical assumption, however, was that the government attorney-client privilege applied in criminal investigations because a court had never carved out an exception to the attorney-client privilege based solely on the type of proceeding in which a party claimed the privilege.^^ In re Lindsey marked a fundamental change in this assumption as it created an exception applicable only to government entities: no attorney-client privilege for criminal investigations. II. In RE Lindsey AND Its Companion Cases While the world's focus was on Monica Lewinsky and President Clinton, Independent Counsel Kenneth Starr, in his extended Whitewater investigation, was attempting to pierce the government attorney-client privilege. Although the cases discussed below are from the Eighth and D.C. Circuits, they have borrowed from each other and were ultimately combined to produce the holding in In re Lindsey: the government attorney-client privilege evaporates in the face of a federal grand jury subpoena. A. In re GrandJury Subpoena Duces Tecum In re GrandJury Subpoena Duces Tecum^^ decided by the Eighth Circuit on February 13, 1997, paved the way for In re Lindsey. In this case, the Special Division of the United States Court of Appeals for the District of Columbia, pursuant to the Independent Counsel statute,^^ ordered Kenneth Starr to investigate and prosecute matters "relating in any way to James B. McDougal's, President William Jefferson Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc."^^ The Special Division also assigned Kenneth Starr to pursue evidence of "other violations of the law developed during and connected with or arising out of his primary investigation, known generally as 'Whitewater.'"^'* Pursuant to its investigation. 69. See Lisa E. Toporek, "Bad Politics Makes Bad Law: " A Comment on the Eighth Circuit 'sApproach to the GovernmentalAttorney-Client Privilege, 86 GEO. L.J. 242 1 , 2433 ( 1 998). 70. See id. 71. 112 F.3d 910 (8th Cir.), cert, denied. Office of President v. Office of Indep. Counsel, 521 U.S. 1105(1997). 72. 28 U.S.C. § 592 (1994). An investigation pursuant to this statute shall be made of such matters as the "Attorney General considers appropriate in order to make a determination ... on whether further investigation is warranted, with respect to each potential violation, or allegation of a violation, of criminal law." Id. § 592 (a)(1). The Independent Counsel statute expired on June 30, 1999. See Independent Counsel Law Expires Today: Statute Started During Watergate, Fla. Times Union, June 30, 1999, at A4 (reporting the reasons for enacting the Independent Counsel statute as well as the reasons for letting it lapse). 73. In re GrandJurySubpoena Duces Tecum, 1 1 2 F.3d at 91 3 (quoting In re Madison Guar. Sav. & Loan Ass'n, Div. No. 94-1, Order at 1-2 (D.C. Cir. Sp. Div. Aug. 5, 1994)). 74. Id 1999] INRELINDSEY 301 the Office ofIndependent Counsel delivered a grand jury subpoena duces tecum to the White House that required production of "all documents created during meetings attended by any attorney from the Office of Counsel to the President and Hillary Rodham Clinton."^^ The White House identified nine sets of notes in response to this subpoena, but ultimately refused to produce them, claiming, among other things, the attorney-client privilege/^ The district court addressed the White House's refusal, but found it unnecessary to decide the broad question presented by the Office of Independent Counsel of whether a federal governmental entity may assert the attorney-client privilege in response to a subpoena by a federal grand jury7^ Rather, the court concluded that because Mrs. Clinton and the White House had a genuine and reasonable, albeit mistaken, beliefthat the conversations at issue were privileged, the attorney-client privilege indeed applied/^ The Office ofIndependent Counsel appealed, and the Eighth Circuit granted an expedited review 7^ On appeal, the Eighth Circuit refused to decide whether the government attorney-client privilege applies in civil litigation pitting the federal government against private parties.^^ Furthermore, the Eighth Circuit rejected the dissent's approach of recognizing a qualified government attorney-client privilege that would be subject to theMjcow^' test for the executive privilege which balances the grandjury's need for the subpoenaed material against the White House's need for confidentiality.^^ The Eighth Circuit ultimately held that "the criminal context ofthe instant case, in which an entity ofthe federal government seeks to withhold information from a federal criminal investigation, presents a rather different issue"^^ and found that the government attorney-client privilege indeed evaporates during a criminal investigation.^"* In re GrandJury Subpoena Duces Tecum was the first federal court of appeals case that actually decided whether a government attorney-client privilege exists in a federal grand jury setting.^^ In holding that the attorney-client privilege does not apply, the court relied primarily on the nature of public service, stating that "the general duty of public service calls upon government employees and agencies to favor disclosure over concealment."^^ Additionally, the court found significant the fact that executive 75. Id. (citation omitted). 76. See id. 11. Seeidai9\4. 78. See id. 79. See id. 80. Seeida.t9\l-\9. 81. United States v. Nixon, 418 U.S. 683, 712-13 (1974). 82. See In re Grand Jury Subpoena Duces Tecum, 1 12 F.3d at 917-19. 83. /^. at 917-18. 84. See id 85. See In re Grand Jury Proceedings, 5 F. Supp.2d 21,31 (D.D.C.), aff'd in part, rev 'd in part sub nom. In re Lindsey, 158 F.3d 1263 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 1 19 S. Ct. 466 (1998) (mem.). 86. In re Grand Jury Subpoena Duces Tecum, 1 12 F.3d at 920 (emphasis added). 302 INDIANA LAW REVIEW [Vol. 33:291 branch employees, including attorneys, are under a statutory duty^^ to report criminal wrongdoing by other employees to the Attorney General.^* Although the court acknowledged the White House's concern that "[a]n uncertain privilege . . . is little better than no privilege at all,"^^ the court pointed out that confidentiality will suffer only in those situations that involve criminal violations.^^ The court's practical advice concerning this possibility was that, "an official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney."^' B. In re GrandJury Proceedings The D.C. District Court decided In re GrandJury Proceedings^^ on May 27, 1998, just prior to In re Lindsey. Before In re Grand Jury Proceedings, the Special Division of the United States Court of Appeals for the District of Columbia expanded Kenneth Starr's prosecutorial jurisdiction and ordered him to conduct investigations concerning "whether Monica Lewinsky or others suborned perjury, obstructedjustice, intimidated witnesses, or otherwise violated federal law."^^ The Office of Independent Counsel then moved to compel the testimony of Bruce Lindsey, Deputy White House Counsel and Assistant to the President.^"* Lindsey refused to answer certain questions, citing the government attorney-client privilege.^^ In seeking to compel Lindsey to testify, the Office of Independent Counsel urged the court to follow In re GrandJury SubpoenaDuces Tecum from the Eighth Circuit, by holding that the government attorney-client privilege disintegrates in a criminal context. The White House insisted that the majority ' s reasoning in In re GrandJury Subpoena Duces Tecum was flawed and that the D.C. Circuit clearly recognizes an absolute government attorney-client privilege that applies equally to civil a«. 131. See Harvey Berkman, Lindsey Ruling Impact: Outsourcing, Nat'l L.J., Aug. 1 0, 1 998, at A12; Marcia Coyle, In the 8th Circuit-Privilege Ruling Could Touch All Government Attorneys-Whitewater Case Withholds Right That Corporate Clients Have Long Enjoyed, Nat'L L.J., May 1 9, 1 997, at A 1 ; Marcus, supra note 1 1 , at A 1 ; Walter Pincus, Past Attorney-Client Issue Resonates White House Lawyers InvokedPrivilege in Iran-Contra Investigation, WASH. POST, June 7, 1997, at A3. 1999] INRELINDSEY 307 mess that needs fixing.'"^^ Although the Supreme Court denied certiorari, the potential repercussions this decision may have on government attorneys and officials is still unsettled. Therefore, these consequences would benefit from further analysis. Supporters ofa qualified government attorney-client privilege rely mostly on the nature ofgovernment employment as their arsenal. Congressman and former U.S. Attorney Bob Barr commented, "Taxpayer-funded government attorneys do not work for individuals under investigation for private conduct. They work for, and serve, the taxpaying citizens of this country."'^^ Furthermore, recognizing an absolute privilege for attorney-client communications in the government context would "compromise[] . . . the important public policy of openness in government affairs.'"^"* While the majority ofthe judicial community appears to agree with the basic rationale that the public policy of open government outweighs the public policy ofconfidential communications involving a possible criminal violation by a government official, vehement opposition exists in the legal community. This opposition falls into these basic categories: "chilling effects" on communications between government attorneys and officials, outsourcing burdens, omission ofprotection for military, diplomatic, or sensitive national security secrets, and slippery slope concerns. A. 'Vhilling Effects" Opponents ofthe qualified government attorney-client privilege are primarily concerned with the "chilling effects" this ruling may have on communications between government attorneys and officials. Commentators, expanding upon Judge Tatel's dissent in In re Lindsey,^^^ have responded that the "chilling effects" this holding may induce are in direct conflict with the primary purpose of the attorney-client privilege: promoting full and frank communications.'^^ White House counsel Charles F.C. Ruff, in response to the Supreme Court's denial of certiorari in In re Lindsey, pronounced that "[w]e continue to believe that the attorney-client privilege should protect conversations between Government officials and Government attorneys. The American people benefit 1 32. Fix-up Time, Nat'l L.J., Aug. 1 0, 1 998, at A20. 133. Barr, supra note 130; see also Appendix to the Hearings ofthe Select Committee on Presidential Campaign Activities, reprinted in THOMAS D. MORGAN & RONALD D. ROTUNDA, Professional Responsibility 105 (6th ed. 1995) ("It is the people who not only pay the Government lawyer's salary but who are supposed to be the beneficiaries ofhis legal work and his true client."). 1 34. Lory A. Barsdate, Note, Attorney-Client Privilegefor the Government Entity, 97 Yale L.J. 1725, 1744(1988). 135. Judge Tatel forecasted that the ruling essentially would deter government clients from confiding in government attorneys. See In re Lindsey, 158 F.3d 1263, 1284 (D.C. Cir.) (Tatel, J., dissenting), cert, denied. Office of President v. Office of Indep. Counsel, 119 S. Ct. 466 (1998) (mem.). 1 36. See Marcus, supra note 1 1 , at A 1 . 308 INDIANA LAW REVIEW [Vol. 33:291 from decisions made by Government officials ... on the basis of full and frank information and discussion."'^^ "Chilling effects" on full and frank communications will inevitably occur because potential criminal wrongdoing is not always conspicuous at the time of disclosure; "[f]ear of a future investigation, even a meritless one, will make government officials practice a better-safe-than-sorry approach" '^^ and err on the side of nondisclosure. The In re Lindsey majority's rebuttal states that government officials will still enjoy the benefit of fully confidential communications with their attorneys, unless the communications expose information relating to possible criminal wrongdoing. '^^ While this lessens the concern about "chilling effects," the practical effect is that government officials will more likely seek private counsel ifthey even remotely suspect that a criminal investigation may ensue. B. Outsourcing ofGovernmental Legal Work The practice of government officials seeking private counsel, known as outsourcing, ''^^ is an additional concern of those opposed to the qualified government attorney-client privilege. However, attorneys have already been advising government attorneys and officials to retain a private attorney. For example, G. Jerry Shaw, a partner in a D.C. law firm that represents federal employees, has confirmed that "[ajttomeys who work for the government have always known, and it has always been taught to them, that their client is the government or agency and not the individual."'"^* However, even when government officials heed this advice and hire a private attorney, they incur a tremendous monetary burden. '''^ Furthermore, it essentially deprives the government of critical information because government officials will be less likely to give information freely to government attorneys based on the advice of their private attorneys, '"^^ In an effort to abate this burden on government officials, an insurance policy, which has been "selling like hotcakes," has recently been made available and provides $1 million in liability coverage for suits arising out of government officials' jobs and pays up to $100,000 for legal services."*"* Furthermore, Congress has proposed a bill that reimburses government supervisors and management officials for up to fifty percent of the costs incurred by such 137. Stephen Labaton, Administration Loses Two Legal Battles Against Starr, N.Y. TIMES, Nov. 10, 1998, at A 19. 138. Toporek, supra note 69, at 2436-37. 1 39. See In re Lindsey, 1 58 F.3d at 1 276. 140. See generally Patricia M. Wald, Looking Forward to the Next Millennium: Social Previews to Legal Change, 70 TEMP. L. REV. 1085, 1096 (1997). 141. Berkman, supra note 1 3 1 , at A 1 2 (emphasis added). 142. See Toporek, supra note 69, at 2438. 143. See id 1 44. See Berkman, supra note 1 3 1 , at A 1 2. 1999] INRELINDSEY 309 employees for this professional liability insurance.'"*^ Although the availability of liability insurance and the reimbursement of premiums will not prevent outsourcing of legal work to the private sector, it does curb the monetary burden for government officials, and therefore weakens the opposition's argument. C Omission ofProtectionfor Military, Diplomatic, or Sensitive National Security Secrets Seeking a private attorney may involve a more potent and clandestine concern than mere "chilling effects" and outsourcing burdens: the possibility of revealing military, diplomatic, or sensitive national security secrets. This is the third concern opponents of the qualified government attorney-client privilege raise. This possibility is particularly worrisome in a situation involving a high- ranking government official, such as the President, Vice President, or a cabinet member, because the communications exchanged often involve matters that are of vital importance to the security and prosperity of the nation.'"*^ Even supporters of a qualified government attorney-client privilege shun its applicability to national security matters. For example, C. Boyden Gray, White House counsel during the Bush administration, believes that an absolute government attorney-client privilege should extend to communications involving national security matters, such as Iran-Contra,''*^ that may involve possible violations of law.'"*^ C. Boyden Gray's rationale for this absolute protection is that government officials will not have to acquire two sets of attorneys, one government and one private, in order to clear a top secret.'"*^ Second, C. Boyden Gray believes that absolute protection will eliminate the inherent riskiness in relying on outside attorneys because ofthe sensitivity, and consequent exposition to a non-government attorney, of the top-secret information involved. '^° Although Gray supports this view, he does not believe that government attorneys should be representing government officials who face possible involvement in 145. See H.R. 4278, 104th Cong. § 636 (1996). This liability insurance covers any tortious act, error, or omission while in the performance of such individual's official duties, as well as the ensuing litigation and settlement expenses. See id. 1 46. See United States: Government Lawyers Can 't Invoke Privilege when Called to Testify Before GrandJury, 1 998 U.S.L.W.D. (BNA), Aug. 3, 1 998, at D3; see also Stanley Brand, A Blow Is StruckAgainstAttorney-Client Privilegefor Government Lawyers in the Whitewater Independent Counsel Case, 44-JUN FED. LAW. 9 (1997) ("[Outsourcing] may spark more government officials to seek advice from private lawyers in sensitive ethics cases or internal agency investigations that have the potential to turn into criminal probes.") (emphasis added). 147. In 1986, two secret U.S. Government operations were publicly exposed in which the United States sold arms to Iran in exchange for American hostages in contravention of stated U.S. policy and in possible violation of arms-export controls. See 1 Lawrence E. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters 1-2(1 993). 1 48. See Pincus, supra note 1 3 1 , at A3. 149. See id 1 50. See Coyle, supra note 1 3 1 , at A 1 . 310 INDIANA LAW REVIEW [Vol. 33:291 criminal matters, even if the information involves issues of national security.'^' D. Slippery Slope Concerns Less worrisome than the revelation ofnational security matters is the slippery slope problem. Even before the D.C. Circuit decided In re Lindsey, commentators cautioned to "[b]e prepared to see [the Eighth Circuit's ruling in In re Grand Jury Subpoena Duces Tecum] flower because of the number and breadth ofgovernment investigations that become criminal. And be prepared for the extension of this decision . . . from criminal to civil proceedings."'^^ Furthermore, the increasing number of investigations conducted by the Office of Independent Counsel also causes concern for an over-inclusive extension ofthis ruling. '^^ Although In re Lindsey will clearly place restrictions on the relationship between government attorneys and officials, the effects of these restrictions are yet to be known. In re Lindsey will indeed have repercussions for government attorneys and officials. However, the nature ofpublic service validates most ofthe effects this decision will create. While the "chilling effects," outsourcing burdens, and slippery slope concerns can be minimized, the possibility of revealing military, diplomatic, or sensitive national security secrets based on this qualified government attorney-client privilege must be thwarted. IV. Proposed ALTERATIONS TO /A^i^^Z/yvD^-Er Many suggestions have been made to lessen the impact that In re Lindsey may have on government attorneys and officials. Most of these proposed solutions incorporate balancing the need for confidentiality against the need for evidence in criminal cases. However, the Supreme Court has explicitly rejected this concept of applying balancing tests to the attorney-client privilege.'^"* Furthermore, using a balancing test will likely compromise the public's interest in unmasking illegality among its elected and appointed officials. In light ofthis concern, there still remains a void in the In re Lindsey decision that must be addressed before hindsight regrets its omission from the government attorney- client privilege. This void can be filled by establishing an exception to the government attorney-client privilege that applies when the information disclosed deals with military, diplomatic, or sensitive national security secrets. This can be accomplished by using an in camera inspection. 151. See Pincus, supra note 1 3 1 , at A3 . 152. Coyle, supra note 131, at Al; see also Brand, supra note 146, at 9 ("The court of appeals decision will certainly encourage litigants to seek to expand the rationale to civil cases."). 153. See Coyle, supra note 131, at A 1 ("Given the proliferation of independent counsel . . . similar requests by other independent counsel for attorney-client materials will be made against numerous government agencies."). 154. See Swidler & Berlin v. United States, 1 18 S. Ct. 2081, 2087 (1998). 1 999] INRE LINDSEY 3 1 1 A. Balancing Test One example of a balancing test, borrowed from Judge Kopfs dissent'^^ in In re GrandJury Subpoena Duces Tecum, is to require a showing of need and an in camera inspection by a federal judge of the subpoenaed materials in order to determine relevance and admissibility.'^^ The benefit of using this approach is that every privileged communication subpoenaed in a criminal investigation will not be automatically disclosed. '^^ Instead, the "judge would carefully weigh the importance of the communication to the criminal investigation against the importance of confidentiality to encourage full and frank communications with government attorneys." '^^ Although this balancing test appears "fair," it must ultimately fail. The first reason is the context in which the government attorney-client privilege initially will be claimed—^the grand jury. The grand jury, a constitutional body established in the Bill of Rights,'^^ "belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people."'^" Allowing a government attorney to withhold relevant criminal evidence in some instances would essentially disparage the grandjury's function as a buffer between the government and the people. Furthermore, not only does a grand jury have broad investigatory powers,'^' but government attorneys also have a duty to provide testimony to the grand jury. '^^ Second, the Supreme Court has criticized the practice ofapplying a balancing test to the attorney-client privilege. '^^ This criticism has resulted because ofthe 155. Judge Kopf would require the special prosecutor to make an initial threshold showing before the district court that the documents are specifically needed, relevant, and admissible. Furthermore, assuming the prosecutor met this showing. Judge Kopfwould require the documents to be examined in chambers in order to determine whether in fact the documents are relevant and admissible. See In re Grand Jury Subpoena Duces Tecum, 1 12 F.3d 910, 926-27 (8th Cir.) (Kopf, J., dissenting), cert, denied. Office ofPresident v. Office of Indep. Counsel, 521 U.S. 1 105 (1997); see also In re Grand Jury Proceedings, 5 F. Supp.2d 21, 32 (D.D.C.), affdinpart, rev 'dinpart sub nom. In re Lindsey, 158 F.Bd 1263 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office ofIndep. Counsel, 1 1 9 S. Ct. 466 ( 1 998) (mem.) (stating that the government attorney-client privilege must be qualified "in order to balance the needs ofthe criminal justice system against the government agency's need for confidential legal advice"). 1 56. See Toporek, supra note 69, at 2439. 157. SeeiddXlAAQ. 158. Id 159. See U.S. CONST, amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ."). 160. In re Lindsey, 158 F.3d at 1271. 161. See In re Grand Jury Subpoena Duces Tecum, 1 12 F.3d at 918. Furthermore, "[t]he principle that the public is entitled to 'every man's evidence' is 'particularly applicable to grand jury proceedings.'" Id. at 919 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). 1 62. See Marcus, supra note 1 1 , at A 1 . 163. See In re Lindsey, 158 F.3d at 1268. 312 INDIANA LAW REVIEW [Vol. 33:291 uncertainty a client may have at the time of disclosure as to whether the information will later become relevant to a civil or criminal matter, let alone whether it will be of substantial importance. ^^ Balancing the importance ofthe information against client interests introduces substantial uncertainty into the privilege's application; therefore, the use of a balancing test is not applicable when defining the contours of the attorney-client privilege.'^^ B. In Camera Inspection Although good grounds exist for not employing a balancing test, the issue of disclosing military, diplomatic, or sensitive national security secrets, which In re Lindsey left open, is still not resolved. The possibility of disclosure, which Part III ofthis Note addresses, is a realistic concern that the Supreme Court addressed United States v. Nixon}^^ In determining whether PresidentNixon must disclose audiotapes concerning the break-in at Watergate, the Court held that the assertion of the executive privilege must ultimately yield to the specific need for evidence in a criminal investigation, unless the investigation encompasses military, diplomatic, or sensitive national security secrets. '^^ The basis of this sensitive information exception is rooted in the nature of the President's work. "The President, both as Commander-in-Chief and as the nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world."'^^ Furthermore, "[i]t may be possible to satisfy the court, from all the circumstances ofthe case, that there is a reasonable danger that compulsion ofthe evidence will expose military matters which, in the interest of national security, should not be divulged."'^^ Although the government attorney-client privilege does not necessarily involve information exchanged between the President and his advisors, it does involve information exchanged between government officials and government attorneys. High-ranking government officials, such as the Secretary of Defense, 1 64. See Swidler & Berlin v. United States, 1 1 8 S. Ct. 208 1 , 2087 ( 1 998). 1 65. See id. ; see also Jaffee v. Redmond, 5 1 8 U.S. 1 ( 1 996). The Court in Jaffee stated if the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected" because "an uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. Id. at 17-18. See also Upjohn Co. v. United States, 449 U.S. 383, 393 (1981) ("[T]he attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected."). 166. 418 U.S. 683(1974). 167. See id at 706. 168. Id at 710 (quoting Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 1 1 1 (1948)). 169. Id at 71 1 (quoting United States v. Reynolds, 345 U.S. 1, 10 (1953)). 1999] INRELINDSEY 313 Joint Chiefs of Staff, Secretary of State, or National Security Advisor, often have unrestricted access to top-secret information concerning the military, foreign affairs, or national security. Therefore, it is reasonable that if such officials are called upon to testify in a criminal investigation, they should also be extended the protection that the President is afforded under the executive privilege.'^^ Furthermore, the In re Lindsey court affirmatively borrowed the concept of evaporating the attorney-client privilege in a criminal context from the Supreme Court's formulation of the executive privilege in United States v. Nixon,^^^ but neglected, without apparent explanation, to adopt the other important facet ofthe executive privilege—absolute protection for military, diplomatic, and sensitive national security secrets. The In re Lindsey court gave no reason why it only adopted one-half of the executive privilege formula. Whether by oversight or intent, divulgence of secret matters is a realistic possibility that the court in In re Lindsey should have discussed. This concept of extending absolute protection to communications involving secret matters is not distinctive to the executive privilege. "In certain circumstances, the Government may invoke its governmental privilege with regard to the discovery of informants and state and military secrets."'^" Other courts have also acknowledged that disclosing secrecy matters could be harmful to the government and consequently have devised methods to prevent this from occurring. '^^ In order to extend this needed protection to matters concerning military, diplomatic, or sensitive national security secrets, a method should be utilized which will not compromise the public's right to unveil wrongdoing among government officials. Several courts have held that, given the strong competing interests to be balanced, the government attorney-client privilege should require examination of the subpoenaed documents in camera.''"^ "The court must give . . . consideration to an appropriate method by that which is legitimately privileged, such as . . . intragovernmental policy discussions, [which] may be shielded while the relevant factual data is disclosed. In this connection, the court may want to use the in camera examination device."'^^ Therefore, whenever information 1 70. C. Boyden Gray, White House counsel during the Bush administration, believes that an absolute government attorney-client privilege should be extended to communications that involve national security matters. See Pincus, ^wpra note 131, at A3. 171. See In re Lindsey, 1 58 F.3d at 1 266. 1 72. Mertens, supra note 67, at § 58A.34 (citing E.W. Bliss Co. v. United States, 203 F. Supp. 175 (N.D.Ohio 1961)). 173. See, e.g.. United States v. Reynolds, 345 U.S. 1, 6-7 (1953) (holding that there is a governmental privilege for state and military secrets); People ex rel. Dep't of Pub. Works v. Glen Arms Estate, Inc., 41 Cal. Rptr. 303 (Cal. Ct. App. 1964) (applying an in camera inspection to state secrets and official communications). 1 74. See, e.g., Scott Paper v. United States, 943 F. Supp. 489, 498 n.8 (E.D. Pa.), aff'd, 943 F. Supp. 501 (E.D. Pa. 1996). 175. Id. (quoting United States V. O'Neill, 619 F.2d 222, 230 (3d. Cir. \9^Q)),seealso Inre Franklin Nat'l Bank Sec. Litig., 478 F. Supp. 577, 582 (E.D.N.Y. 1 980) ("Given the clash ofstrong 314 INDIANA LAW REVIEW [Vol. 33:291 potentially contains military, diplomatic, or sensitive national security secrets, the judge would determine what exactly should be disclosed, such as basic facts, without compromising the sensitivity of the information, but nevertheless satiating the public's right to unveil illegality among government officials. Using a balancing test to eradicate the negative effects of/« re Lindsey may not be a viable alternative for two primary reasons: the specialized function of the grand jury and the criticism by the Supreme Court concerning application of balancing tests to the attorney-client privilege. However, by holding that the government attorney-client privilege evaporates in the context of a criminal investigation, the In re Lindsey court left open a possibility that has been criticized before—revelation ofdiplomatic, military, or sensitive national security secrets. '^^ The possibility of revealing such information needs to be addressed before hindsight regrets its omission from the government attorney-client privilege. In order to accomplish this, whenever the government attorney-client privilege is claimed in a response to a criminal investigation involving diplomatic, military, or sensitive national security secrets, the courts should create an exception to the government attorney-client privilege that requires judges to conduct an in camera review. An in camera review will ensure that the sensitivity of the information is not compromised because judges will censor what should be disclosed. Conclusion Regardless of the proposed alterations to the government attorney-client privilege, there will be consequences to the relationship between government attorneys and officials. In order to alleviate these ensuing changes, a few simple procedures should be followed. First, government attorneys should establish a plan for identifying and reporting to senior attorneys any legal matters that involve a criminal inquiry.'^'' Those matters, and the work of government attorneys in connection with them, can then be monitored with the understanding that the government attorney-client privilege may not be available. '^^ Second, government attorneys should warn government officials from the outset that they represent the governmental entity, not the individual official; therefore, government attorneys can steer individuals toward private counsel if needed. '^^ If government attorneys follow this approach, it may sometimes make it more difficult to obtain information from government officials; however, it should then minimize the risk that a government attorney could be criticized for not putting an official on notice that his discussion with the government attorney was not competing interests, the official information privileged usually requires examination of the documents in camera."). 1 76. See supra text accompanying notes 1 68-75. 1 77. See Lance Cole, The Government-Client Privilege After Office ofthe President v. Office of the Independent Counsel, 22 J. LEGAL PROF. 15, 26 (1998). 178. See id. 179. See id. 2X2%. 1999] INRELINDSEY 315 privilegedJ^° As far as government officials are concerned, they should heed the advice ofthe Eighth Circuit, "An official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney."'^' Following these simple recommendations will not entirely eradicate the proposed effects ofthe qualified government attorney-client privilege, but it will ease the transition to limited protection for communications between government attorneys and officials that encompass criminal wrongdoing. In conclusion, although the government attorney-client privilege contains an exception, dissolution ofthe privilege in the face ofa criminal investigation, that the attorney-client privilege does not contain, the differences between the two privileges are ultimately dispositive. The bottom line is that taxpayer-funded government attorneys and officials work for, and serve, the taxpaying citizens of this country. Therefore, a qualified government attorney-client privilege in a criminal context, which In re Lindsey establishes, is warranted because of the public's right to uncover illegality among its elected and appointed government officials. Although there has been much opposition to In re Lindsey, much of the criticism, such as "chilling effects" and outsourcing burdens, can be tempered. The major solutions proposed to eradicate these potential effects, such as balancing tests that weigh the grandjury's need for the evidence against the need to protect full communications between government attorneys and officials, are equally problematic. However, this does not resolve the issue. The In re Lindsey court notably left out an important possibility in its construction ofthe qualified government attorney-client privilege—revelation of military, diplomatic, or sensitive national security secrets. This oversight has a left a void in the In re Lindsey decision that needs to be filled. To fill this void, courts should create an exception to the government attorney-client privilege that will protect military, diplomatic, and sensitive national security secrets by requiringjudges to employ an in camera inspection. An in camera inspection will safeguard the sensitivity of such information because judges can censor it before disclosure. Unfortunately, because Monica Lewinsky is not a military, diplomatic, or sensitive national security secret, even this formulation of the government attorney-client privilege would not have prevented Bruce Lindsey from testifying about the "inappropriate" relationship between President Clinton and Monica Lewinsky had President Clinton not admitted to it. 180. See id. at 28-29. 181. In re Grand Jury Subpoena Duces Tecum, 1 12 F.3d 910, 921 (8th Cir.), cert, denied, OfficeofPresidentv.Officeoflndep. Counsel, 521 U.S. 1105(1997). SeealsoInreUn(\sQy, 158 F.3d 1263, 1276 (D.C. Cir.) (per curiam), cert, denied. Office of President v. Office of Indep. Counsel, 119 S. Ct. 466 (1998) (mem.) ("[Njothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel.").