Kitzhaber Hayes Scandal Delivers Blow to Attorney-Client Privilege in Oregon
Thursday, April 09, 2015
The unfolding circumstances of former governor John Kitzhaber and his fiancee, Cylvia Hayes, have delivered a blow to the standard of attorney-client privilege in Oregon, after records released both officially and unofficially containing once-privileged communications were shared and reproduced.
Frequently, revelations came in the form of digital correspondence, obtained through public record requests and other means, raising the issue of just how private confidential email communications are in 2015.
Portions of a set of emails leaked to alternative weekly Willamette Week were printed in the paper beginning Feb. 18 and revealed strategic discussion between Ball Janik's attorney, Stephen Janik, and Kitzhaber on how best to prepare for a review by the Oregon ethics commission.
“I think it’s cringeworthy, I didn’t like it at all when I saw that email exchange between Kitzhaber and his attorney,” said Portland-based Criminal Defense Attorney Tim Bowman. “I would hope journalists wouldn’t publish it, it’s like someone publishing a reporter’s notes.”
The leaked emails were of high public interest at the time, following the resignation of Kitzhaber a week before that raised more questions than it answered. A number of emails initially stonewalled by the former governor’s office were those from Kitzhaber’s personal accounts. They wound up, some how, on the state’s server through inadvertent auto-forwarding, according to the state’s Department of Administrative Services.
Among those emails leaked to the paper were privileged attorney-client communication, and according to Jordan Ramis attorney Ed Trompke, may not be admissible in trial because of the attorney-client privilege standard. Another report by the Oregonian suggests sources outside the circle of Kitzhaber, Hayes, Janik, and attorney Jim McDermott, knew enough about his strategy to disclose to that paper what the former governor’s attorneys were advising.
“In the legal community, the attorney client privilege is almost sacred, almost sacrosanct,” Trompke said. “It’s very possible these emails will be published all over but not usable in court."
Even so, attorney-client privilege has become more difficult to ensure in an age of auto-forwarding, “reply all’s,” the use of multiple synced devices, and cloud-based email. The same correspondence that is possibly inadmissible due to attorney-client privilege, can be read by anyone with an Internet connection.
"It's an issue of old rules keeping up with new technology,” said Laurel Hook, a shareholder at Stahancyk Kent and Hook P.C.
In a Good Friday dump of more than 94,000 emails linked to three personal accounts of former Oregon First Lady Cylvia Hayes, Governor Kate Brown's office made public a number of emails between Hayes and Kitzhaber's general counsel, Liani Reeves. The governor's office made clear the emails released were not deemed to be privileged, and that a number of emails that were determined to be covered by attorney-client privilege were withheld.
"The release of these documents is therefore not intended as and does not constitute a waiver of the Office of the Governor’s attorney-client privilege with respect to those documents that are indeed properly covered by the privilege. The Office of the Governor is withholding a small number of documents from this production that it believes are legitimately covered by the Attorney-Client privilege," the office of the governor wrote.
Bowman agrees the correspondence may still be inadmissible in court despite it being in the public realm.
“Just the mere fact of publication doesn’t strip it of its privileged status,” he said.
Privilege belongs to client
Attorney-client privilege is always the client’s to waive, even if he or she does so inadvertently through auto forwarding, replying to multiple recipients, or disclosure.
Regarding Kitzhaber and Hayes’ communication with the then governor’s legal counsel, Liani Reeves, the privilege belongs to Kitzhaber as the governor of the state of Oregon. Inasmuch, the privilege lay with the current governor, Kate Brown, to release the records.
Lewis and Clark Professor of Law Tun Yin has followed the events surrounding Kitzhaber closely, and blogs about it here.
“What makes lawyers different is that clients have confidence anything they say, even if it’s not fully legal, can’t come back to be used against them,” Yin said. That point makes attorney-client privilege of such value that it is sometimes used as a bargaining chip in litigation.
Yin said Brown’s unexpected move to release emails between Hayes and counsel Liani Reeves is precedent setting, and chips away at the attorney-client relationship.
“If everybody is operating under the paradigm that once you’re out of office, expect [communications] to be released, we will see less candid communication, and it will ultimately degrade the attorney-client relationship,” Yin said.
By laying out the playbook Kitzhaber’s lawyers were following, media outlets may have unfairly impacted the trial already, Yin said.
Attorneys differ on the measures they take to protect electronic privileged communications, although more and more, the industry is beginning to take data security more seriously, according to Stoel Rives LLP Chief Innovation Officer Ryan Schlunk. Most firms agree a free cloud-based account, such as gmail, is not an acceptable medium for confidential communications.
“If it’s in an email, it never disappears and you should be careful what you put in an email,” said Tonkon Torp attorney Stephen Wilker.
Related Slideshow: How Top Portland Attorneys Protect Attorney-Client Privilege
The continuing saga of former governor John Kitzhaber and his fiancee, environmental consultant Cylvia Hayes, has brought the standard of attorney-client privilege into the Oregon limelight.
Some communication covered under the standard -- a scarcity of sacred holdings in the realm of attorneys -- were shared publicly throughout developments in the unfolding story.
But what about those emails you exchanged with your lawyer?
Oregon attorneys take varying degrees of caution, ranging from practical advice to data lockdowns, in order to protect the privileged information shared by clients.
As a standard, the firm encrypts all text and email communication between lawyers and clients, and encrypts devices such as cell phones, laptops, flash drives and computers used by attorneys.
“You have to make it a priority of the business,” said Chief Innovation Officer at Stoel Rives LLP Ryan Schlunz.
Although Schlunz said the firm's biggest safeguard to protecting attorney-client privileged information is educating lawyers and staff on protocol, there are a range of technological measures Stoel Rives attorneys can employ, including mobile device management and secure file systems.
Schlunz said clients are advised not to send privileged communicaiton via pubic email accounts, such as gmail.
"If we’re dealing with something that’s going to contain sensitive information, gmail is not an appropriate communication method," he said.
Miller Nash Graham and Dunn
"In the world we live in, email is not a secure medium but most people prefer to use it," said Erich Merrill of Miller Nash Graham and Dunn.
Aside from basic confidentiality rules, the firm offers a wide variety of data protection services depending on the requirements of the client.
Even so, Miller Nash's engagement letter with clients includes an option to receive all or some communication with attorneys in an encrypted form, meaning only the intended recipient can read it.
Company devices, such as laptops, smart phones and other portable devices belonging to attorneys are encrypted, and can be wiped clean if stolen or lost. "If it's encrypted, it's literally impossible to get the information out," said Merrill.
But the simplest rule prevails.
"Don't talk where someone who may have an interest in the information can hear you -- on the phone, elevator, in public."
Jordan Ramis PC
"In the legal community, the attorney client privilege is almost sacred, almost sacrosanct," said Jordan Ramis PC attorney Ed Trompke.
Protecting privileged communication comes down to where and when that communication is made.
Jordan Ramis advises clients to use private email accounts, and to refrain from opening correspondence from attorneys if using a computer or server owned by an employer.
After that point, the information may no longer be privileged.
"Emails can be routed around the world even if they're going across town," Trompke said. To maintain complete confidentiality?
"Come talk to me about it in person," Tromke said.
Stahancyk Kent and Hook
In addition to email encryption, the firm offers clients an email account on a private server for privileged communications.
"It's an issue of old rules keeping up with new technology," said Stahancyk Kent and Hook shareholder Laurel Hook.
She said the firm anticipated the issue of data security, which has become part and parcel of electronic communications, and for years has hosted client email accounts on a private server.
If a client sends an email with privileged information from a public account, the communication line is shut down, Hook said.
Clients are also advised to meet with attorneys in person, and to use disposable cell phones.
Tonkon Torp LLP
"Communication in writing is what we do," said Tonkon Torp LLP attorney Stephen Wilker.
The firm uses encrypted emails, ensures devices are secured and trains staff on confidentiality measures.
"Whatever you say in public, someone could belistening," Wilker said.
Clients are advised to be careful about autofill and autoforwarding settings in email correspondence, and to avoid replying all recipients, and copying attorneys on communications to the other side.
"This has made discovery litigation a nightmare, all of a sudden you waive the privilege because you shared it with someone outside," he said.
"In the old days this came up with people eavesdropping," said criminal defense attorney Timothy Bowman, "If you’re just sitting there yapping at the top of your lungs in Starbucks."
Bowman, who has been practicing for 30 years, said he opts for standard firewalls in digiatal communication, along with common sense, over elaborate safeguards.