Page 133 - Impact: Collected Essays on Expanding Access to Justice

re County of Erie .16 The case involved a class action lawsuit in which the plaintiffs alleged that the county maintained an unconstitutional policy requiring that all detainees coming into county jails undergo a strip search .17 Before the litigation began,18 an Assistant County Attorney worked with local officials to change their policy; inspected a correctional facility to monitor compliance; and, following the inspection, argued for county officials “to implement changes as soon as possible .”19 The plaintiffs sought discovery of emails between the attorney and local officials on these issues .20
The Second Circuit noted that “[i]t is to be hoped that legal considerations will play a role in governmental policymaking .”21 The Court found that although the emails between the attorney and local officials on these issues concerned policy matters, they were protected by the attorney- client privilege: “When a lawyer has been asked to assess compliance with a legal obligation, the lawyer’s recommendation of a policy that complies (or better complies) with the legal obligation – or that advocates and promotes compliance, or oversees implementation of compliance measures – is legal advice .”22 The Court emphasized how government lawyers’ counseling work ultimately benefits “the public which is entitled to compliance with the ever growing and increasingly complex body of public law .”23
The language of the Second Circuit decision suggests that the judges, who took the rare step of granting a mandamus petition to prevent use of the attorney’s emails in the litigation, appreciated the attorney’s work and sought to encourage similar behavior .24 Through her proactive approach to her work and her advice to county officials, the attorney in County of Erie had acted in a way that was consistent with what the Second Circuit described as a “complete lawyer”:
The complete lawyer may well promote and reinforce the legal advice given, weigh it, and lay out its ramifications by explaining: how the advice is feasible and can be implemented; the legal downsides, risks and costs of taking the advice or doing otherwise; what alternatives exist to present measures or the measures advised; what other persons are doing or thinking about the matter; or the collateral benefits, risks or costs in terms of expense, politics, insurance, commerce, morals, and appearances . . . . The more careful the lawyer, the more likely it is that the legal advice will entail follow- through by facilitation, encouragement and monitoring .25
16 473 F.3d 413 (2d Cir. 2007).
17 Id. at 416.
18 The litigation began in 2004; the documents at issue were a series of emails that were sent in 2002 and 2003. Id. at 415, 421-22.
19 The Magistrate Judge assigned to the case described documents that were the subject of a discovery dispute as including the following: a document from the county attorney to county officials that “propose[d] changes to existing policy to make it constitutional, including drafting of policy regulations”; an email counseling the county sheriff “to not wait for his chiefs to act but to implement changes in the policy as soon as possible;” and emails that postdated adoption of a revised policy, in which the county attorney was “advocating to administrative and executive officials within the Sheriff’s Department to take steps to implement the new policy (such as acquiring equipment, training personnel), inspecting one facility and commenting upon its compliance with the new policy, and urging Sheriff’s Department officials to implement changes as soon as possible.” Pritchard v. County of Erie, No. 04CV534C, 2006 WL 3858475, at *1 (W.D.N.Y. Jan. 4, 2006) (citations omitted), objections overruled, 2006 WL 3872844 (W.D.N.Y. Apr. 17, 2006), vacated and remanded sub nom. In re County of Erie, 473 F.3d 413 (2d Cir. 2007).
20 Id.
21 In re County of Erie, 473 F.3d at 422.
22 Id.
23 Id. (quoting In re Grand Jury Subpoena DucesTecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984)).
24 A mandamus petition was granted even though the plaintiffs had already received copies of the emails that were at issue, as ordered by the district court. Id. at 417.
25 Id. at 420-21.
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