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.
Almost Sacred
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.
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