Barack Obama has made some strange decisions regarding secrecy and records. His state legislative records are missing and may have been thrown out, there are questions about his answers to his application to the state bar (keep in mind the DSCC demanded George Allen release his in 2006), and he released a one-page letter from his doctor summarizing his medical history (contrasted with McCain allowing reporters to examine nearly 1,200 pages of health records). He and his former law firm say Obama only did a few hours of work for nonprofit firms connected to convicted donor Tony Rezko, but no records have been released to confirm that. (A Huffington Post blogger claims those records were released, but the link she cites doesn’t work.)
And The New York Times noted,
The campaign on Monday barred cameras from a large gathering of African-American civic leaders Mr. Obama attended. It recently refused to provide names of religious figures with whom Mr. Obama met in Chicago and directed some of them to avoid reporters by using a special exit.
But among the strangest is Obama’s refusal to specify who he worked for during his time in private practice with the firm of Davis, Miner, Barnhill and Gallard (now known by only the last three names). In all of his statements of economic interests filed with the Illinois State government during his years as a state legislator, Obama listed every client of the firm. The result was a “disclosure” of hundreds of clients each year – from 247 in his 1997 filing to 448 in his 2002 filing – when he was only working for a handful of those.
Obama’s old boss, Judson Miner, said there were 30 cases to which Obama contributed in some way during his time there, full time for three years and seven years “of counsel.” How many clients could he have represented in those 30 cases over 10 years?
When the Chicago Sun-Times asked for a specific list of his clients in 2007, Robert Gibbs, communications director for the senator’s presidential campaign, responded, “The rules of professional responsibility binding on the firm precludes its public dissemination of client-confidential information, including the fact of representation. If there are specific questions about specific representations, we will attempt to answer them with the assistance of the firm.”
That sounds very authoritative, but it’s also wrong. Attorney-client privilege covers the fact of representation only in extremely rare cases.
Beyond numerous citations of this, in 1996, the United States District Court for the Northern District of Illinois*, which has jurisdiction over Chicago, ruled in Stopka vs. Alliance of American Insurers:
Fox & Grove’s general assertion that the billing statements and time records should not be disclosed because they are privileged is unpersuasive. Cohen and Pincus attest the billing statements and attorney time sheets maintained by the law firm “would reveal the Alliance’s motivation for seeking legal counsel and would reveal the nature of services provided by Fox and Grove to the Alliance in both this case and other matters.” Cohen Aff. ¶ 3; Pincus Aff. ¶ 3. “A client’s motive for seeking legal advice is undeniably a confidential communication.” Matter of Grand Jury Proceeding, Cherney, 898 F.2d 565, 568 (7th Cir. 1990); In re Grand Jury Witness, 695 F.2d at 362. Accordingly, the substance of those meetings is privileged. However, billing statements and time records are not privileged insofar as they state when, where and for how long Fox & Grove attorneys met with Stopka or other Alliance officials.”
It’s hard to argue that the fact of representation is covered by attorney-client privilege, but the billing records aren’t. And fact of representation is exactly what the Sun-Times and other media organizations are asking for, not any legally sensitive material of any of Obama’s discussions with them.
And indeed, the Obama campaign is willing to confirm Obama’s participation in a case when the media brings the client to their attention — suing on behalf of ACORN, a 1994 lawsuit against Citibank, a trader who reported his bosses for fraud, a psychologist fired by Cook County, etc. But they’ve turned the simple question of “who did Obama work for?” into a guessing game – they’ll only confirm or deny representation for that list of hundreds of firm clients.
* This post originally referred the 7th District Court as a whole, not the Northern Illinois District.
UPDATE: A reader who is an Illinois lawyer asks if the Obama campaign is citing the Illinois Rules of Professional Conduct. But while the rules prohibit disclosing “a confidence or secret of the client,” I don’t see anything that would cover the fact of representation. Note that the client’s hiring of the firm is already disclosed in his statements of economic interests Obama files because he served in the state legislature; the question is, which clients did Obama actually do work for?
Are we to believe that every client of Obama’s asked that he keep his work for them secret?
ANOTHER UPDATE: Another Northern District of Illinois case dealing with disclosing billing records, from a few years earlier:
“In their opposition brief, plaintiffs list six categories of documents they claim to be privileged. Category I consists of billing statements for legal services rendered on behalf of KRS by various attorneys, including a description of the type of service provided, the cost of such services, and the checks paying for such services. Such communications do not relate to confidential matters and are clearly unprivileged.” Schachar v. American Academy of Ophthalmology, 106 F.R.D. 187 at 192 (N.D. Ill. 1986)
Recall Gibbs’ statement, “The rules of professional responsibility binding on the firm precludes its public dissemination of client-confidential information, including the fact of representation.” Too bad this ruling indicates that the billing statements are not confidential or privileged, much less the fact of representation.