Monday, August 1, 2016

Ex-Governor Cannot Hide Emails Shared with State Lawyers in Corruption Investigation

The former Oregon governor cannot prevent emails shared with state lawyers from being introduced to a grand jury because of attorney-client privilege

United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16.

   The Ninth Circuit found that emails sent by a former governor to the state’s attorneys are not completely shielded by the attorney-client privilege in a grand jury investigation. The former governor used several personal email accounts to communicate with state attorneys regarding ethics violations, but, unbeknownst to him, were archived on state servers.

   The court rejected the ex-governor’s argument that he had an attorney-client privilege while sending those emails. While emails exchanged with privately held attorneys were protected, any email sent to the state attorneys were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not [the governor] personally.” In addition, the court held that communication with a state’s attorney over “a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. [A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.”

http://www.bloomberglaw.com/public/document/United_States_v_Kitzhaber_No_1535434_2016_BL_224564_9th_Cir_July_.

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