THE ATTORNEY-CLIENT PRIVILEGE
AND THE MUNICIPAL LAWYER
Jeffrey L. Goodman & Jason Zabokrtsky*
I.
Introduction
A. Elements
B. Purposes Underlying the Attorney-Client Privilege
C. Problems Associated with the Attorney-Client Privilege
II.
Courts Have “Assumed” That a Governmental Attorney-Client Privilege Exists to Some
Degree
A. A Specific Justification for the Attorney-Client Privilege in the Governmental Setting
B. Problems with the Attorney-Client Privilege in the Governmental Setting
III.
Defining the Municipal Lawyer’s Client
IV.
Ethics Codes
V.
The Privilege in the Corporate Setting
VI.
The Attorney-Client Privilege in the Governmental Setting
VII.
Criminal Proceedings
VIII.
Practical Pointers
IX.
Conclusion
I. INTRODUCTION
The attorney-client privilege is the oldest of common law privileges protecting confidential
communications.1 In recent years, the extent of protection afforded to communications between a
governmental lawyer and officers and employees of a governmental entity have been examined.
Scholarly writings and case law on the subject have done little to resolve the issue of whether and under
what circumstances the attorney-client privilege can successfully be claimed by governmental entities and
its representatives. This Article will examine the attorney-client privilege, the purposes underlying the

*
Jeffrey L. Goodman is a shareholder in the Pingel & Templer, P.C. law firm in West Des Moines, Iowa and a
1985 graduate of the Drake Law School. Goodman has served as the City Attorney for the City of West Des Moines, Iowa and
he continues to serve as outside counsel for the City of West Des Moines. He also represents other clients in municipal matters
throughout the State of Iowa. During law school, Goodman served as a law clerk to the United States Senate Judiciary
Committee, Subcommittee on Administrative Practice & Procedure. He is also a former Assistant United States Attorney and
Assistant County Attorney. Goodman is a member of the International Municipal Lawyers Association and the State and Local
Government and Real Estate sections of the Iowa Bar. Co-author Jason Zabokrtsky is a May 2000 Juris Doctorate Degree
candidate at the University of Iowa, College of Law. The authors also wish to thank Holly Streeter-Schaefer and Jeffrey Ewoldt
for their assistance in preparing this Article. Holly Streeter-Schaefer is a December 2000 Juris Doctorate Degree candidate at the
Drake Law School. Jeff Ewoldt is a May 2000 Juris Doctorate Degree candidate at the Drake Law School.
1.
GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 222 (2d ed. 1994).
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privilege, the privilege in the corporate setting, and the problems associated with the privilege in the
governmental setting, as well as the attorney-client privilege in criminal proceedings.
A. Elements
“The most concise and best-known statement of the attorney-client privilege” was made by
Wigmore.2 In his treatise on evidence, he phrases the general principle of the privilege as follows:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as
such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are
at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except
the protection be waived.3
Some courts have expanded on this definition to convey the concepts with greater specificity.4
B. Purposes Underlying the Attorney-Client Privilege
The purpose of the attorney-client privilege is based on two related principles. First, the privilege
encourages loyalty in the attorney-client relationship, and second, the privilege encourages clients to
make full and frank disclosures to their lawyers. With regard to the first principle underlying the
privilege:
Loyalty forms an intrinsic part of the relationship between a lawyer and client in our adversary system.
This loyalty is offended if the lawyer is subject to routine examination regarding the client’s
confidential disclosures. The second principle [underlying the privilege] is that the privilege
encourages clients to make full disclosure to their lawyers. A fully informed lawyer can more
effectively serve his client and promote the administration of justice.5
Case law generally refers to this as encouraging “full and frank communication between attorneys and
their clients.”6 Courts have also noted that the privilege “promote[s] broader public interests in the
observance of law and administration of justice.”7 “The privilege recognizes that sound legal advice or
advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully
informed by the client.”8
The privilege may also be required to satisfy ethical requirements. For example, the American Bar
Association’s Model Code of Professional Responsibility, Ethical Consideration 4-1, states:

2.
Id.
3.
8 JOHN HENRY WIGMORE, EVIDENCE § 2292, at 554 (rev. vol. 1961).
4.
See United States v. Tedder, 801 F.2d 1437, 1442 (4th Cir. 1986). Some courts have used the following definition
that seems to convey the same concepts with greater specificity:
“(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the
communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this
communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion
on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing
a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”
Id. (quoting NLRB v. Harvey, 349 F.2d 900, 904 (4th Cir. 1965)).
5.
Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (citing KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE §
87, at 205-06, § 89, at 212 (3d ed. 1984)).
6.
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
7.
Id.; see also Hickman v. Taylor, 329 U.S. 495, 511 (1947) (discussing the need for a lawyer to be able to “plan his
strategy without undue and needless interference”).
8.
Upjohn Co. v. United States, 449 U.S. at 389.
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[A] lawyer should be fully informed of all the facts of the matter he is handling in order for his client
to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent
professional judgment to separate the relevant and important from the irrelevant and unimportant. The
observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his
client not only facilitates the full development of facts essential to proper representation of the client
but also encourages laymen to seek early legal assistance.9
The full and frank discussions protected by the attorney-client privilege also serve to allow a lawyer to
decide the relevant and important facts upon consultation with a client. Further, “the loss of evidence
admittedly caused by the [attorney-client] privilege is justified in part by the fact that without the
privilege, the client may not have made such communications in the first place.”10
C. Problems Associated with the Attorney-Client Privilege
“[T]he attorney-client privilege interferes with ‘the truth-seeking mission of the legal process’” and
is therefore not “favored.”11 A pervasive concern regarding the privilege is that it “excludes relevant
evidence and stands ‘in derogation of the search for the truth.’”12 These problems can become
particularly evident when the client is an organization.13 Given the number of individuals possessing
information relevant to litigation in large organizations, “administration of the privilege by the courts
proves difficult” because the so-called “‘zone of silence grows large[r].’”14
II. COURTS HAVE “ASSUMED” THAT A GOVERNMENTAL ATTORNEY-CLIENT PRIVILEGE EXISTS TO SOME
DEGREE
Regardless of the lack of statutory evidence law, “most courts have assumed . . . that governments
can claim the benefits of the [attorney-client] privilege.”15 In some instances, courts have avoided
deciding whether a governmental attorney-client privilege exists and instead dismiss such a claim by
reasoning that, even if the privilege did apply, the facts do not satisfy the standard for invoking the
protections of the privilege.16 For example, in Reed v. Baxter17 the Sixth Circuit analyzed a claim of
governmental attorney-client privilege in a municipal setting by assuming that the privilege was
applicable.18 However, because the court noted that by determining the facts did not satisfy the elements
of the privilege, it did not have to specifically rule a governmental attorney-client privilege protected the
communications.19
When courts apply the attorney-client privilege to the municipal setting, they seem generally
unwilling to provide broad protection because of fear the privilege is incompatible with open

9.
MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 4-1 (1980); see also Hickman v. Taylor, 329 U.S. at 511
(recognizing that inefficiency and unfairness would result if attorney work product were open to opposing counsel).
10.
Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998).
11.
United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996) (quoting United States v. Tedder, 801 F.2d 1437,
1441 (4th Cir. 1986)).
12.
Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)).
13.
Id.
14.
Id. (quoting David Simon, The Attorney-Client Privilege As Applied to Corporations, 65 YALE L.J. 953, 955
(1956)); see also 24 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5476, at 189
(1986) (noting that disclosure of information may be prevented by the use of the privilege when corporations are manipulating
the information through their attorneys).
15.
24 WRIGHT & GRAHAM, supra note 14, § 5475, at 125.
16.
See United States v. Nixon, 418 U.S. at 713; Reed v. Baxter, 134 F.3d at 356.
17.
Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998).
18.
Id. at 356.
19.
Id. at 357. For a more complete discussion of Reed v. Baxter, see infra Parts II.B & VI.
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government.20 “Assuming that the [attorney-client] privilege applies, ‘[i]t is appropriate to recognize a
privilege only to the very limited extent that . . . excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’”21
A. A Specific Justification for the Attorney-Client Privilege
in the Governmental Setting
In their treatise on evidence, Wright and Graham discuss the governmental attorney-client
privilege.22 Their discussion of the advantages of the governmental attorney-client privilege “suffers
from the fact that [the authors] have been unable to find any judicial or scholarly exposition of the reasons
for recognition of the privilege.”23 Nonetheless, they propose some rationales for the attorney-client
privilege in the governmental setting, which include:
(1) “The other governmental privileges are not designed to deal with the special requirements
of attorney confidentiality;”24
(2) “[T]he experience of courts in applying the attorney-client privilege to private parties is a
better source of regulation than would be an attempted expansion” of other government
privileges.25
(3) “[I]f elected officials were discouraged from having open discussions about pending
litigation with counsel and key employees based on a fear of waiver of the attorney-client
privilege, the effects of such lack of communication would be widespread and detrimental to
society as a whole.”26
(4) The rationale of providing full and frank disclosure to counsel is as important in the
government context as in the corporate context.27
(5) Disallowing a governmental attorney-client privilege “may be seen as requiring the
government to fight with one hand tied behind its back.”28
(6) When a municipality has its own staff of lawyers, courts may analogize the privilege as
applied to corporate in-house counsel.29
B. Problems with the Attorney-Client Privilege in the Governmental Setting
Although there are proposed benefits to the governmental attorney-client privilege, there are also “a
number of considerations that militate against the expansion of the privilege to all governmental
entities.”30 “[C]ourts and commentators have cautioned against broadly applying the privilege to

20.
Id. at 356.
21.
Id. (quoting In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997)) (alteration in original).
22.
See 24 WRIGHT & GRAHAM, supra note 14, § 5475, at 124-34.
23.
24 id. § 5475, at 127 n.21.
24.
24 id. § 5475, at 127.
25.
24 id.
26.
Roshani de Soyza Hardin, Who Is the Governmental Client After Reed v. Baxter?, (visited Aug. 4, 1999)
<http://www.imla.org/members/mlpaperindex/papers/c98hardin.html>.
27.
Id.
28.
24 WRIGHT & GRAHAM, supra note 14, § 5475, at 128.
29.
24 id. § 5476, at 170.
30.
24 id. § 5475, at 125.
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governmental entities.”31 In Baxter, the Sixth Circuit considered the issue of an attorney-client privilege
in the municipal setting and stated in 1998 that “there is little authority about which agents of an
organizational client are the client for purposes of the attorney-client privilege.”32 The Baxter court
noted: “The recognition of a governmental attorney-client privilege imposes the same costs as are
imposed in the application of the corporate privilege, but with an added disadvantage. The governmental
privilege stands squarely in conflict with the strong public interest in open and honest government.”33
This consideration may be especially important when the privilege is used to shield potential information
regarding criminal wrongdoing by a government official. Some courts acknowledge the distinction
regarding criminal wrongdoing and have ruled the attorney-client privilege will not be allowed in such a
situation.34
Some scholars argue a governmental attorney-client privilege that suppresses “evidence of
communications between government employees and government lawyers is inconsistent with the
openness to scrutiny that is thought by some to be the hallmark of a truly democratic republic.”35 Others
argue a “governmental attorney-client privilege is inconsistent with ‘open government’ or ‘sunshine’ laws
[that] are in effect in many states.”36 Similarly, others are concerned that the large number of government
lawyers and the number of government employees who may have information relevant to litigation by or
against the government would create a problem of lack of information.37 Further, some say claims for
governmental secrecy should only be protected by the existing privileges for secrets of state and official
information.38
III. DEFINING THE MUNICIPAL LAWYER’S CLIENT
The first step in determining whether the attorney-client privilege applies is defining who is the
client. If one accepts the proposition that the attorney-client privilege protects communications between
municipal lawyers and their clients, the analysis of what is actually privileged is incomplete. One must
decide, “Who is the municipal attorney’s client?” This can be a complicated task. Because a municipal
lawyer “does not necessarily represent a single client[,] . . . the client of the government lawyer is not so
easily identified.”39 In a given day, a municipal lawyer may confer with the mayor, members of the city
council, the city manager, various department heads, and agency administrators. The ultimate question is,
“Which of the conferences are protected by the attorney-client privilege?” The answer lies with the
response to a single question, “Who is the client?”
Nonetheless, an understanding of who actually is the municipal lawyer’s client is vital to
understanding what may be protected by the attorney-client privilege. For example, the attorney-client
privilege does not protect from disclosure statements made by a client to his lawyer in the presence of a

31.
Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (citing RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 124 cmt. b (Proposed Final Draft No. 1, 1996); 24 WRIGHT & GRAHAM, supra note 14, § 5475, at 126).
32.
Reed v. Baxter, 134 F.3d at 357.
33.
Id. (citing In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 920-21 (8th Cir. 1997)).
34.
See, e.g., United States v. Zolin, 491 U.S. 554, 574-75 (1989) (refusing to apply the privilege due to operation of
the crime-fraud exception); In re Grand Jury Subpoena, 204 F.3d 516, 522-23 (4th Cir. 2000) (same); In re Lindsey, 148 F.3d
1100, 1102 (D.C. Cir. 1998) (per curiam) (“The public interest in honest government and in exposing wrongdoing . . . lead[s] to
the conclusion that a government attorney may not invoke the attorney-client privilege in response to grand jury questions
seeking information relating to the possible commission of a federal crime.”).
35.
24 WRIGHT & GRAHAM, supra note 14, § 5475, at 126 (citing James A. Gardner, A Personal Privilege for
Communications of Corporate Clients: Paradox or Public Policy?, 40 U. DET. L.J. 299, 376 (1963)).
36.
24 id.
37.
See 24 id.
38.
24 id. § 5475, at 126-27 (citing James A. Gardner, A Re-Evaluation of the Attorney-Client Privilege, 8 VILL. L.
REV. 447, 499-500 (1963)).
39.
Jeffrey Rosenthal, Who Is the Client of the Government Lawyer?, in ETHICAL STANDARDS IN THE PUBLIC SECTOR
13 (Patricia E. Salkin ed., 1999).
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third party.40 Therefore, if a municipal lawyer is meeting with a group that includes various city
employees and officers, the communications from that meeting will not be privileged if even one person
in that group is considered a third party rather than a client.41
Municipal lawyers are sought for advice by various city employees and officers, including the
mayor, council members, administrative officials, and department heads. The importance of defining who
the client is can be seen when situations arise between different agencies or departments, each of which
the government lawyer is charged with advising. For example, a California court had to decide who the
client was in a dispute between the county assessor and county board of supervisors when a statute
required the government lawyer to advise all county officers.42 In this 1977 case, the California state
appellate court ruled that no attorney-client relationship existed between the county attorney and the
county assessor within the meaning of an ethical rule forbidding a lawyer from accepting employment
adverse to a former client.43 Also, a Louisiana court in 1988 rather nonchalantly noted the city mayor was
the client of the assistant city attorney.44
The American Bar Association’s most current publication regarding addressing the government
client provides some broad direction on this issue.45 An essay by Jeffrey Rosenthal concludes:
[T]he government lawyer is ethically bound to represent the agency by whom he or she is employed,
recognizing that the agency speaks through—and its specific interests are formulated by—the
individuals within the agency who are authorized to do so . . . . It is the government lawyer’s
responsibility to preserve and advocate the interests of the agency, as so expressed by [the individuals
who are authorized to speak for and formulate the interests of the agency]. As long as the expressions,
acts, or desires are not clearly unlawful, the government lawyer has the obligation, both ethically and
practically, to advance those interests.46
IV. ETHICS CODES
State ethics codes generally define who is the lawyer’s client. However, these codes are often
unclear in this area. The various versions of state ethics codes are found in state statutes and court rules.
There are two primary ethics codes.47 Although the Disciplinary Rules of the American Bar
Association’s Model Code do not address issues regarding the representation of organizations, the Model
Rules do.48 Model Rule 1.13 deals with an “organization as client.”49 Although thirty-eight states have
adopted the Model Rules, one author notes that at least eight of those states have modified Rule 1.13 or
the analogous provision.50 Some of these modifications clarify the lawyer’s obligation to the organization

40.
Reed v. Baxter, 134 F.3d 351, 357 (6th Cir. 1998) (citing 8 WIGMORE , supra note 3, § 2311).
41.
This description is similar to the fact pattern in Reed v. Baxter in which council members participated in a meeting
with the city attorney as non-clients. Reed v. Baxter, 134 F.3d at 351.
42.
Ward v. Superior Court, 138 Cal. Rptr. 532, 534 (Ct. App. 1977).
43.
Id. at 539.
44.
Finkelstein v. Barthelemy, 678 F. Supp. 1255, 1264 (E.D. La. 1988).
45.
ETHICAL STANDARDS IN THE PUBLIC SECTOR, supra note 39.
46.
Rosenthal, supra note 39, at 24.
47.
Thirty-eight states, including the District of Columbia, have adopted the Model Rules, 10 states have adopted the
Model Code, and three states have adopted an original or combination version. J. Ivan Legler, Accounting for Differences in
Ethics Rules from State to State, MUN. LAW., Mar.-Apr. 1997, at 24, 26-27.
48.
1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL
RULES OF PROFESSIONAL CONDUCT at xxiv (2d ed. 1998).
49.
MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.13 (1984).
50.
Legler, supra note 47, at 26-27.
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versus the lawyer’s obligation to the individuals in the organization.51 Because of these modifications,
municipal lawyers must consider the particularized version in effect in their jurisdiction.
Rule 1.13 states: “A lawyer employed or retained by an organization represents the organization
acting through its duly authorized constituents.”52 The commentary to this rule defines the organization’s
constituents as the “officers, directors, employees and shareholders.”53 However, the comments also
clarify that the constituents of the organization are not necessarily the clients of the lawyer.54 The
comments further note this rule applies to governmental organizations.55 It says in the governmental
context, different considerations may be appropriate when balancing issues of maintaining confidentiality
versus assuring that wrongful official conduct is prevented or rectified.56
Missouri, for example, follows the Model Rules of Professional Conduct.57 The state has adopted
Rule 1.13, “Organization as Client,” in what appears to be an identical form to the Model Rule.58 Unlike
Missouri, Colorado has opted to modify Rule 1.13 which specifies “the organization and lawyer’s duty is
to the organization itself and not to the various individuals connected with it.”59 This further defines to
whom the Colorado lawyer may owe a duty.60 However, Iowa is in the minority of states that have not
adopted the Model Rules.61 Iowa adheres to the Model Code of Professional Responsibility which does
not address the issue of representing an organization as a client.
V. THE PRIVILEGE IN THE CORPORATE SETTING
Private corporations provide a setting somewhat analogous to the municipal setting because both
involve the privilege as it relates to an organizational client. However, courts have more completely
explored the privilege as it relates to private corporations.62 In Upjohn Co. v. United States,63 the
Supreme Court applied the attorney-client privilege in the corporate context.64
In Upjohn, the Supreme Court invalidated the old “control group test” for corporations and adopted
the “subject matter test.”65 In doing so, the Supreme Court rejected the Sixth Circuit’s prior use of, and
reasoning behind, the control group test.66 The Sixth Circuit reasoned that the corporation is an inanimate
entity and, therefore, “only the senior management, guiding and integrating the several operations, . . . can
be said to possess an identity analogous to the corporation as a whole.”67 Therefore, the Sixth Circuit
adopted the control group test, whereby only those within the corporation who had a “substantial role” in
controlling and directing the corporation’s response to legal advice—the control group—could utilize the

51.
See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.13 cmt. 1 (defining “the constituents of the corporate
organizational client”).
52.
Id. Rule 1.13(a).
53.
Id. Rule 1.13 cmt. 1.
54.
Id. Rule 1.13 cmt. 2.
55.
Id. Rule 1.13 cmt. 6.
56.
Id.
57.
Legler, supra note 47, at 26.
58.
Id.
59.
Id.
60.
Id.
61.
Id.
62.
See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389-91 (1981) (weighing the value of the control group test).
63.
Upjohn Co. v. United States, 449 U.S. 383 (1981).
64.
See id. at 397; see also United States v. Louisville & Nashville R.R., 236 U.S. 318, 336 (1915) (holding that
Hepburn Act did not permit inspection of “confidential communications between attorney and client”).
65.
See generally Upjohn Co. v. United States, 449 U.S. at 392-97 (holding that communications made by corporate
employees to counsel for a corporation, by the request of superiors for the purpose of obtaining legal advice when the employees
knew they were being interviewed by the corporation to obtain legal advice, were protected).
66.
See id. at 390-93.
67.
Id. at 390 (citing United States v. Upjohn Co., 600 F.2d 1223, 1226 (6th Cir. 1979), rev’d, 449 U.S. 383 (1981)).
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protections of the attorney-client privilege.68 Thus, the control group test did not protect communications
between a corporate lawyer and lower-level employees.69
The control group test focused on who can effect change when receiving legal information from a
lawyer.70 In Upjohn, the Sixth Circuit defined the control group as “officers and agents . . . responsible
for directing [the company’s] actions in response to legal advice.”71 However, the Supreme Court in
Upjohn ruled this view “overlooks the fact that the privilege exists to protect not only the giving of
professional advice to those who can act on it but also the giving of information to the lawyer to enable
him to give sound and informed advice.”72
The Supreme Court in Upjohn reasoned:
Middle-level—and indeed lower-level—employees can, by actions within the scope of their
employment, embroil the corporation in serious legal difficulties, and it is only natural that these
employees would have the relevant information needed by the corporate counsel if he is adequately to
advise the client with respect to such actual or potential difficulties.73
The lawyer must be able to freely ascertain relevant facts regarding legal issues.74 The first step in the
resolution of any legal problem is ascertaining the factual background and sifting through the facts with
an eye to the legally relevant.75
The Supreme Court said the control group test “frustrates the very purpose of the privilege by
discouraging the communication of relevant information by employees of the client to attorneys seeking
to render legal advice to the client corporation.”76 The control group test makes it difficult for corporate
lawyers to render sound legal advice because of a lack of information from the non-control group.77 The
test “threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with
the law.”78
The Supreme Court in Upjohn downplayed the Sixth Circuit’s concern regarding a burden on
discovery.79 The Sixth Circuit expressed concern that extending the attorney-client privilege beyond the
limits of the control group test would severely burden “discovery and create a broad ‘zone of silence’
over corporate affairs.”80 However, the Supreme Court noted, pertaining to the facts of Upjohn, the
attorney-client privilege “puts the adversary in no worse position than if the communications had never
taken place. The privilege only protects disclosure of communications; it does not protect disclosure of
the underlying facts by those who communicated with the attorney.”81 Further,

68.
United States v. Upjohn Co., 600 F.2d at 1226. The first case to articulate the so-called control group test was
City of Philadelphia v. Westinghouse Electric Corp. Id. (citing City of Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp.
483, 485-86 (E.D. Pa. 1962)).
69.
Upjohn Co. v. United States, 449 U.S. at 395.
70.
See id. at 390-92.
71.
United States v. Upjohn Co., 600 F.2d at 1225.
72.
Upjohn Co. v. United States, 449 U.S. at 390; see also Trammel v. United States, 445 U.S. 40, 51 (1980) (holding
that although the accused’s spouse testified under a grant of immunity and assurances of lenient treatment, her testimony was still
voluntary and the accused’s claim of privilege was properly rejected); Fisher v. United States, 425 U.S. 391, 403 (1976) (holding
that the enforcement of documentary subpoenas directed to taxpayers’ attorneys was not precluded by the theory that attorneys
were required to keep confidences of clients who had a reasonable expectation of privacy).
73.
Upjohn Co. v. United States, 449 U.S. at 391.
74.
Id.
75.
Id.
76.
Id. at 392.
77.
Id.
78.
Id.
79.
Id. at 395.
80.
Id.
81.
Id.
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“the protection of the privilege extends only to communications and not to facts. A fact is one thing
and a communication concerning that fact is an entirely different thing. The client cannot be
compelled to answer the question, ‘What did you say or write to the [lawyer]?’ but may not refuse to
disclose any relevant fact within his knowledge merely because he incorporated a statement of such
fact into his communication to his attorney.”82
Therefore, the United States Supreme Court adopted the subject matter test, which expanded the amount
of communication which may be protected by the attorney-client privilege in the corporate context.83 The
subject matter test protects communications between lawyers and agents or employees of the corporation
who are authorized to speak or act on behalf of the corporation in relation to the subject matter of the
communication.84
VI. THE ATTORNEY-CLIENT PRIVILEGE IN THE GOVERNMENTAL SETTING
It is far from clear whether the attorney-client privilege applies to municipal governments and
under what circumstances the privilege applies.85 Neither the Model Code of Evidence nor the Uniform
Rules of Evidence provide for the attorney-client privilege in a municipal setting.86 Rule 501 is the only
rule in the Federal Rules of Evidence which addresses the attorney-client privilege.87 Rule 501 neither
specifically allows for the privilege in the municipal setting nor disallows it.88 When that rule refers to
the “privilege of a . . . government, State, or political subdivision thereof,” it speaks in terms of the
“governmental privilege” rather than comparing a privilege upon communications between a municipal
lawyer and city employees or officers.89
The governmental privilege is separate and distinct from the government attorney-client privilege.
The governmental privilege “protects the government from revealing military or diplomatic secrets or
other information the disclosure of which would be contrary to the public interest.”90 In contrast, the
government attorney-client privilege protects communications made between a lawyer and the
government entity which is the lawyer’s client.91 The government attorney-client privilege is not
premised on protecting diplomatic or other information that would be against the public interest if
disclosed.92
Interestingly, courts have relied on the language of proposed Federal Rule of Evidence 503 as
supporting the existence of a government attorney-client privilege.93 Proposed Rule 503 defines “client”
to include public officers, as well as organizations, either public or private.94 The courts have generally
not resolved the issue of the government attorney-client privilege. However, the Court of Appeals for the
Sixth Circuit discussed the issue in the cases of United States v. Doe95 and Reed v. Baxter.96

82.
Id. at 395-96 (quoting City of Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)).
83.
Id. at 397-98.
84.
Id.
85.
24 WRIGHT & GRAHAM, supra note 14, § 5475, at 124.
86.
24 id.
87.
FED. R. EVID. 501.
88.
Id.
89.
Id.
90.
BLACK’S LAW DICTIONARY 627 (5th ed. 1979) (citing United States v. Reynolds, 345 U.S. 1, 10-12 (1953)).
91.
See 24 WRIGHT & GRAHAM, supra note 14, § 5475, at 128.
92.
See 24 id.
93.
24 id.
94.
24 id. This proposed rule has subsequently been rejected. 24 id.
95.
United States v. Doe, 886 F.2d 135 (6th Cir. 1989).
96.
Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998).
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In 1989, the Sixth Circuit in United States v. Doe, considered the question of who the municipal
lawyer represents.97 The Doe court ruled the Detroit City Council was a client of the city’s lawyer with
respect to closed condemnation hearings held pursuant to the city code.98 The opposing party wanted the
Detroit City Council to turn over minutes of four closed meetings between the City Council and the
lawyers.99 In two meetings, the “City Council met with, among others, corporation counsel and special
corporation counsel to discuss condemnation of property.”100 In the other two meetings, the “City
Council met with special corporation counsel, the attorney representing Council itself and the attorney
representing the City Administration.”101 The City Council claimed the minutes were protected by the
attorney-client privilege.102 The Sixth Circuit reversed the lower court and held that under these facts an
attorney-client privilege may exist.103
The lower court reasoned the City Council and City Administration advocated different positions,
retained separate outside counsel, and operated in a bifurcated structure of government and, as such, were
distinct entities.104 However, the Sixth Circuit ruled that even if these assertions were correct, they still
would “not support the district court’s ultimate factual conclusion” that the minutes are not privileged.105
Instead, the Sixth Circuit extended the attorney-client privilege to a city attorney who was found to
represent both the City of Detroit as well as its City Council in a condemnation proceeding.106 The court
ruled in this manner even though the City Council had retained separate outside counsel to advise it
regarding issues arising from the condemnation action.107
The court remanded Doe to the district court to determine whether the privilege would apply.108
The outcome would turn on the “confidentiality” of the communications.109 The Doe decision, which was
rendered in 1989,110 was readdressed by the Sixth Circuit in 1998 in the case of Reed v. Baxter—wherein
the court appeared to narrow the scope of the attorney-client privilege in a municipal setting.111 The court
held that the attorney-client privilege did not protect communications from a meeting between a city
attorney, city manager, city fire chief, and two city council members.112 Because the court deemed the
council members “third parties,” their presence waived any potential privilege.113 The court dodged the
issue of whether the attorney-client privilege is applicable in the municipal setting.114 Instead, it ruled
that even if the privilege did apply to a municipality, the facts presented did not satisfy the requirements
of the privilege.115
The facts in Reed were as follows: “In 1992, the city of Murfreesboro[, Tennessee] Fire
Department took steps to fill a captain’s position left vacant” upon the termination of an African-

97.
United States v. Doe, 886 F.2d at 137.
98.
Id. at 138.
99.
Id. at 136.
100.
Id. at 138.
101.
Id.
102.
Id. at 136.
103.
Id. at 139. The court withheld judgment on whether the attorney-client privilege actually protected the minutes
pending the outcome of another case determining whether the meetings were unlawfully closed under the Michigan Open
Meetings Act. Id. (citing MICH. COMP. LAWS § 15.268 (1986)).
104.
Id. at 137.
105.
Id.
106.
Id. at 137-38.
107.
Id. at 138.
108.
Id. at 139.
109.
Id. at 138.
110.
Id. at 135.
111.
Reed v. Baxter, 134 F.3d 351, 358 (6th Cir. 1998).
112.
Id.
113.
Id.
114.
Id. at 356.
115.
Id.
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Document Outline

• I. Introduction
  • A. Elements
  • B. Purposes Underlying the Attorney-Client Privilege
  • C. Problems Associated with the Attorney-Client Privilege
• II. Courts Have AssumedŽ That a Governmental Attorney-Client Privilege Exists to Some Degree
  • A. A Specific Justification for the Attorney-Client Privilege
  • in the Governmental Setting
  • B. Problems with the Attorney-Client Privilege in the Governmental Setting
• III. Defining the Municipal Lawyers Client
• IV. Ethics Codes
• V. The Privilege in the Corporate Setting
• VI. The Attorney-Client Privilege in the Governmental Setting
• VII. Criminal Proceedings
• VIII. Practical Pointers
• IX. Conclusion

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