A Review of Judge Kavanaugh’s Privilege Opinions

As the Senate confirmation hearings begin this week on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, let’s review the nominee’s privilege opinions from his 12-year stint on the D.C. Circuit Court of Appeals.

By my count, Judge Kavanaugh authored 9 substantive, privilege-related opinions, each summarized below, including a few I discussed in prior PoP posts.  As you will see, Judge Kavanaugh is a strong proponent of the corporate attorney–client privilege, applies statutes’ “plain meaning,” upholds government agencies’ withholding of documents under the deliberative-process privilege, and avoids issuing advisory opinions.

Attorney–Client Privilege

In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).  In an influential opinion for corporate internal investigations and the corporate attorney–client privilege, Judge Kavanaugh upheld the attorney–client privilege for internal investigations conducted at in-house counsel’s direction.  Judge Kavanaugh ruled that the privilege applied even where government regulations required the investigation, and non-attorneys conducted the employee interviews. And in a move that will please in-house counsel, the SCOTUS nominee rejected a narrow view of the primary-purpose test for communications pertaining to legal and business matters.

Noting “evident confusion” about the primary-purpose test and stating that the district court’s “but for” analysis was “not appropriate for attorney–client privilege analysis,” Judge Kavanaugh articulated this standard: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?” In other words, Judge Kavanaugh rejected the sole-causation test in favor of a broader test that, “sensibly and properly applied, … boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.”  You may read the opinion, and my full analysis of it, at this blog post.

Federal Trade Comm’n v. Boehringer Ingelheim Pharmaceuticals, Inc., 892 F.3d 1264 (D.C. Cir. 2018).  In his last privilege opinion prior to his SCOTUS nomination, Judge Kavanaugh faced the issue of what privilege standard applied to a General Counsel’s communications that involved both legal and business advice.  Judge Kavanaugh, applying his Kellogg decision, eschewed a narrow, but-for standard, and ruled that the privilege covered a General Counsel’s communications involving legal and business issues because “one of the significant purposes of [her] communications was to obtain or provide legal advice,” with an emphasis on “one.”  You may read the opinion, and my earlier analysis, at this blog post.

South Carolina v. United States, No. 12–203, U.S. District Court for the District of Columbia, August 10, 2012.  In this case, Judge Kavanaugh sat on a three-judge panel at the D.C. District Court under §5(a) of the Voting Rights Act.  In South Carolina’s declaratory-judgment action that its voting-related statutory modifications are entitled to preclearance under the Voting Rights Act, the question arose whether the attorney–client privilege protected documents prepared by an attorney for the South Carolina legislature.  Two judges said no—narrowly applying the privilege and finding that the attorney’s work was policy-related, not legal related.

Judge Kavanaugh dissented.  More…

Commentary on The Yates Memorandum

In 2015, then Deputy Attorney General Sally Yates issued a DOJ memorandum on the subject of Individual Accountability for Corporate Wrongdoing, available in full here.  Known as the Yates Memorandum, the DOJ issued this directive to focus on holding individuals responsible for the illegal acts of the corporations for which they worked.

The memorandum, along with DAG Yates’ subsequent remarks, has generated much debate about whether the DOJ was, at least implicitly, returning to a culture of pressuring companies to waive the attorney-client privilege and work-product doctrine.  Now almost three years old and subject to modification under the Trump Administration, Professor Gideon Mark published an excellent article tracing the DOJ memoranda preceding the Yates Memo, and expressing concern over privilege waiver:

[T]he Yates Memorandum is likely to result in continued waivers of the attorney-client privilege and attorney work product protection, even if the DOJ does not make express requests. Waivers no doubt aid the DOJ in criminal and civil investigations, but they also undermine and weaken the attorney-client relationship and the ability of corporations to effectively negotiate with the DOJ during enforcement actions.

Professor Mark proposes tweaks to the memo, including making explicit that DOJ will not implicitly require privilege waiver for cooperation credit.

Still, the Yates Memorandum could benefit from some tweaking. If the DOJ is serious that it does not seek waivers of the attorney-client privilege or attorney work product doctrine, then it probably should make that explicit. Currently, the Memorandum merely states that the DOJ does not require waivers. This is a very different situation from one in which companies nevertheless feel compelled to waive in order to obtain cooperation credit. Similarly, the DOJ should make clear that participation in a joint defense agreement will have no negative impact on whether, or to what extent, a company receives cooperation credit.

The article is a good read, and not just because it cites my article, co-authored with Ty Howard, titled In-House Counsel: Protecting the Privilege in a Post-Yates Memorandum World, 31 Corporate Counsel, No. 3, June 2016 (available here).  You may access Professor Mark’s article, The Yates Memorandum, 51 U.C. Davis L. Rev. 1589 (2018), here.

Lawyer Reveals Prospective Client’s Communications—How did Disciplinary Board React?

If a lawyer meets with a prospective client but decides—for conflict-of-interest purposes—that he cannot proceed with the representation, do the attorney–client privilege and ethical rules of confidentiality prohibit the lawyer from revealing the prospective client’s communications?  A Nevada lawyer discovered the answer the hard way.  In the Matter of Discipline of Mark A. Beguelin, Bar No. 3675, 2018 WL 2272918 (Nev. May 11, 2018), available here.

The Rule

Model Rule of Professional Conduct 1.18 provides that, except in a narrow circumstance, a lawyer may not reveal information learned from a prospective client, “[e]ven when no client–lawyer relationship ensues.”  The Rule’s comments provide that a person becomes a “prospective client” “by consulting with a lawyer about the possibility of forming a client–lawyer relationship.”  And when that consultation occurs, the Rule imposes a confidentiality requirement on the lawyer, “regardless of how brief the initial conference may be.”

The Privilege

Most jurisdictions similarly hold that the attorney–client privilege protects from disclosure confidential communications between a lawyer and a prospective client.  In his excellent treatise, Testimonial Privileges, privilege guru David Greenwald clearly recounts that the privilege applies to “prospective clients.” David Greenwald, et al., Testimonial Privileges, § 1.23 (3d ed.). The Nevada Supreme Court, in fact, has held that the privilege protects the substance of a lawyer’s consultation with a prospective client.  Pohl v. Ninth Judicial Dist. Court, 2016 WL 383086 (Nev. Jan. 28, 2016), available here.

The Consultation

The Pohl decision makes what one Nevada lawyer did a bit puzzling.  A prospective client met with the lawyer about filing a divorce action and revealed to him that her husband was verbally abusive. More…