Government agency can't assert attorney-client privilege in AG probe, top state court says

There are circumstances in which state agencies can assert an attorney-client privilege. But a grand jury investigation into their claimed wrongdoing by the state attorney general’s office isn’t among them, a top state court has ruled.

That’s because the public is the client represented by state-paid lawyers counseling a troubled agency, rather than the government officials who consult the lawyers, explains Chief Justice Ronald Castille in a Tuesday opinion (PDF) by the Pennsylvania Supreme Court.

The ruling nixed not only the claim to attorney-client privilege and assertion of the work-product doctrine made by the Pennsylvania Turnpike Commission but a joint amicus brief by the Pennsylvania Bar Association and the Philadelphia Bar Association, according to the Associated Press.

It was made in an interlocutory appeal by the commission of a sealed discovery order by a Dauphin County Court of Common Pleas judge presiding over a grand jury investigation.

In a concurring opinion, Justice Max Baer said the ruling should be understood to apply only in the limited circumstances of a grand jury investigation, but warned that government officials who think they may have violated the law in connection with their work should consult private counsel.

“Thus, the majority’s holding respects the sanctity of the attorney-client privilege where appropriate,” he wrote, “while ensuring that state agencies and their officials cannot shroud criminal conduct from the citizens they are obligated to serve.”

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