Public Interest Law

But that was not the end of the story, because the circuit court remanded the action to the district court to determine if the defendants waived the privilege:

Before tackling the waiver issue, we note, parenthetically, an important issue not discussed in either of the circuit court Erie County decisions, namely, whether the “client” is the government entity or the government official. Suing a municipal official in an official capacity under §1983 is tantamount to suing the municipality. On the other hand, a municipal official sued in a personal capacity is a separate and distinct party. The “who is the client?” issue in the context of government counsel is important because only the “client” can invoke the attorney-client privilege, and only the client can waive the privilege. The Sixth Circuit held that when a municipal official communicates with municipal counsel there is a presumption that the municipality is the client. (Ross v. City of Memphis).¹³ The officer will be considered the client only if she clearly indicates to counsel that she seeks advice in the officer’s personal capacity.¹⁴

On remand in In re Erie County, the federal magistrate judge, after flip-flopping on the waiver issue, eventually found that the defendants’ assertion of qualified immunity waived the attorney-client privilege. A municipal official sued for damages in her personal capacity may assert the defense of qualified immunity. The official will be protected by the immunity if the official acted in an objectively reasonable manner, meaning that, although she acted unconstitutionally, she did not violate clearly established constitutional law.¹⁵

On the other hand, municipalities (and municipal officials sued in their official capacities) may not assert qualified immunity.¹⁶ The district court found that Hearn v. Ray¹⁷ supported the conclusion that the defendant officials’ assertion of qualified immunity operated to waive the attorney-client privilege.¹⁸

‘Erie II’

So, the case went back up to the court of appeals on another petition by the county of Erie for a writ of mandamus. And, once again the Second Circuit granted the writ, in In re County of Erie II.¹⁹

The issue for the circuit court this time was the applicability of so-called implicit “at-issue” waivers of the attorney-client privilege. Under this doctrine the attorney-client privilege may be waived by a party’s invocation of a reliance on an “advice of counsel” defense. The general idea is that a party should not be able to rely upon advice of counsel and at the same time argue that counsel’s communications are privileged.

But the scope of this doctrine is far from clear. On this second go-round in Erie County the circuit court was persuaded by judicial and academic criticism of Hearn v. Ray, and the position that the attorney-client privilege should not be deemed waived simply because a party pleads a claim or affirmative defense. In other words, the advice of counsel “at-issue” waiver doctrine should be viewed narrowly. The circuit court held that the privilege is waived only when a party relied “on privileged advice from his counsel to make his claim or defense.”²⁰ The circuit court found it unnecessary to determine what degree of reliance is required, because the defendants simply did not rely upon advice of counsel to support their qualified immunity defense. Rather the qualified immunity defense raised the issue of whether the defendants violated clearly established federal law. “This is an objective, not subjective, test, and reliance upon advice of counsel therefore cannot be used to support the defense of qualified immunity.”²¹

It should be noted, however, that in “extraordinary circumstances,” qualified immunity may be based upon an official’s reliance upon advice of counsel.²² An official who asserts qualified immunity based upon advice of counsel waives the attorney-client privilege because the privilege cannot be used as a “shield and a sword.”²³ In fact, the circuit court in County of Erie II ruled that on remand plaintiffs will be permitted to reargue “forfeiture of the privilege” should the defendants raise an advice of counsel qualified immunity defense.²⁴ In other words, an Erie County III may be in the works.

Conclusion

The two decisions in In re County of Erie resolve several important issues. Undoubtedly, the analyses would have been sharper, but even more complex, if somewhere along the way the circuit court identified the “client” as the county, its officers, or both the county and its officers. The Erie County II waiver decision should be understood as pertaining to the county officials sued in their personal capacities, because qualified immunity is a defense only to personal capacity claims.

In sum, the two circuit court decisions resolve that: