The reporting of lawlessness within the executive branch of our national government has been held a duty of government lawyers that even trumps a President’s claim of attorney-client privilege.  In re Lindsey, 332 U.S. App. D.C. 357, 158 F.3d 1263, 1273 (D.C. Cir. 1998) (“If there is wrongdoing in government, it must be exposed.”)  (Click here for the opinion in PDF format.)
In paragraphs [30] through [45] the federal appellate court rejects claims that attorney-client privilege forbids White House lawyers from testifying to a grand jury about unlawful activities in President Clinton's administration. The court extensively analyzes the duties of government lawyers and the duties of other government officials and concludes that using the attorney-client privilege to shield a government official's wrongdoing from public exposure is contrary to responsible public policy.
 

In re a Witness, 288 F.3d 289 (7th Cir., filed April 23, 2002). (Click here for the opinion in PDF format.)  In a case relating to a federal grand jury investigation of the administration of Illinois Governor George Ryan (for events while he was Secretary of State), the court held that no relationship of confidentiality can exist between public officials and government lawyers, saying, at 293-94:

“This discussion necessarily points out another crucial difference between a government lawyer’s clients and the clients of other lawyers.  Individuals and corporations are both subject to criminal liability for their transgressions.  Individuals will not talk and corporations will have no incentive to conduct or cooperate in internal investigations if they know that any information disclosed may be turned over to authorities. Swidler, 524 U.S. at 407.  A state agency, however, cannot be held criminally liable by either the state itself or the federal government. See United States v. Price, 383 U.S. 787, 810 (1967).  There is thus no need to offer the attorney-client privilege as an incentive to increase compliance with the laws.  True, individual state employees can be held liable, and many have been found guilty of crimes in this very investigation.  But the privilege with which we are concerned today runs to the office, not to the employees in that office. See Ill. Sup. Ct. R. 1.13 (2001) (making clear that an organizational lawyer’s duty is to the organization, not the organization’s individual officers). Just as a corporate attorney has no right or obligation to keep otherwise confidential information from shareholders, Garner v. Wolfinbarger, 430 F.2d 1093, 1101 (5th  Cir. 1970), so a government attorney should have no privilege to shield relevant information from the public citizens to whom she owes ultimate allegiance, as represented by the grand jury. Branzburg, 408 U.S. at 688 (noting  grand jury’s presumptive “right to every man’s evidence”).  In formulating privileges, this court cannot ignore the interests and responsibilities of the coordinate entities within our federal system, all of which are sworn to uphold the public interest and committed to the “general duty of public service.” Duces Tecum, 112 F.3d at 920.  Public officials are not the same as private citizens precisely because they exercise the power of the state.  With this responsibility comes also the responsibility to act in the public interest.  It follows that interpersonal relationships between an attorney for the state and a government official acting in an official capacity must be subordinated to the public interest in good and open government, leaving the government lawyer duty-bound to report internal criminal violations, not to shield them from public exposure. Nixon, 418 U.S. at 712-13 (recognizing executive interest in confidentiality may be lessened in face of criminal investigation); Lindsey, 158 F.3d at 1273 (noting public interest in “transparent and accountable government”).

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

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