OPINION AND ORDER
The Attorney General in this case is seeking an injunction ordering Covington & Burling ("C&B"), a Washington, D.C. law firm, to allow officials of the Justice Department to inspect certain documents the firm has withheld relating to its representation of the Republic of Guinea. He claims his delegates have a right to see these documents under the Foreign Agents Registration Act, 22 U.S.C. §§ 611 to 621 (1970).
C&B initially registered under the Act as an agent of the Republic of Guinea in May of 1967, and has periodically updated its registration statement as required. Until recently, when Guinea terminated its association with the firm, C&B advised and represented the country quite actively. Its main efforts seem to have been centered on counseling Guinea on a project the country had undertaken to exploit its bauxite resources. To that end, C&B assisted Guinea in its negotiations with those foreign corporations -- including American ones -- which had agreed to mine the bauxite. The law firm also helped negotiate loans for the project from the World Bank, from the United States Agency for International Development, and from the United States Export-Import Bank. During the course of these negotiations, members of the firm met with the lawyers and staff of the Agency for International Development and of the Export-Import Bank, and also with the Guinea desk officer of the State Department and the U.S. Ambassador to Guinea.
C&B also assisted Guinea in other smaller matters. For example, it advised the country on certain contract claims Guinea might have against those corporations that had agreed to mine Guinea's bauxite, and it represented Guinea in a New York state court on a contract dispute arising from Guinea's exhibit at the World's Fair there in 1964.
In January of 1975, officials of the Justice Department sought to inspect the records C&B had maintained with respect to its relationship with Guinea. The firm allowed them to see approximately 95 percent of these records; the remaining five percent of the documents, which apparently related to nearly every area in which the firm has assisted Guinea, and amounts to about 1,000 pages, C&B refused to let the government inspect. As its reason for withholding these particular documents, the firm stated then that the documents related to confidential communications between Guinea and the firm regarding legal matters. Although it has given other reasons for not allowing officials of the Justice Department to inspect these documents,
C&B's main contention continues to be that the Foreign Agents Registration Act recognizes an attorney-client privilege that protects these documents. The Attorney General's simple response is that no such privilege exists under the Act.
The Foreign Agents Registration Act is a disclosure statute. It provides, generally, that every "agent of a foreign principal," as that term is defined in 22 U.S.C. § 611(c) and (d), must, unless exempted from doing so by § 613, file a registration statement with the Attorney General which discloses the particulars of the agent's activities on behalf of his foreign principal, and also must file copies of any "political propaganda" the agent publicizes on the principal's behalf. 22 U.S.C. §§ 612, 614. The Attorney General, in turn, must make information contained in these filings available to the public and to interested parties in government. 22 U.S.C. § 616.
In order to insure that each agent makes an accurate disclosure of these filings, Congress has given the Attorney General the power to require that certain records relating to the activities which the agent must disclose under §§ 612 and 614 be kept by the agent and has given to the Attorney General's delegate the power to require that the agent permit the delegate to inspect these records. 22 U.S.C. § 615. It is with the extent of the power given in § 615 that this case is primarily concerned.
Upon review of the general outline of the Act and of § 615's place in it, it is somewhat difficult to see how the values that the attorney-client privilege is designed to protect could be in danger here. The purpose of the attorney-client privilege is to aid the orderly and efficient administration of justice. The presumption behind it is that if a client is free to communicate frankly with his attorney, to disclose the unfavorable, embarrassing, and secret portions of his problem as well as the helpful and already public ones, the attorney will be able to give the soundest legal advice and perhaps avoid the cost of litigation, or to render the best legal representation in court and thereby lead to a just resolution of the dispute. A privilege that would prevent an attorney from disclosing matters that would tend to reveal such confidences without the client's permission, it is thought, would encourage a client to speak frankly and would therefore aid the administration of justice. This is the attorney-client privilege. See McCormick, Evidence § 87 (1972).
It is easy for the Court to visualize a situation in which a document that would be helpful to the government in determining whether an agent has made an accurate disclosure under the requirements of the Act would, if completely disclosed, tend to reveal a client-attorney confidence. It is more difficult to understand, however, why a foreign principal would object to the disclosure of such a document to a certain few officials of the Justice Department acting as delegates of the Attorney General under the Act. The question is, would the disclosure of a document containing an attorney-client confidence to a few persons, who are primarily interested in whether the agent who has registered under the Act has adequately fulfilled his statutory obligations, have a substantial inhibiting effect on the foreign principal in his communications with his attorney-agent. The Court would agree that it is very unlikely that disclosure to these officials would result in public disclosure of confidential conversations between the foreign interest and its attorney-agent.
The foreign principal may fear, however, that these persons at the Justice Department might, intentionally or not, directly or indirectly, disclose the confidences to persons who might make use of the embarrassing, unfavorable or secret information against the principal. In fact, there is no express provision in the Act which would deter an official in the Justice Department from doing this. Nor does there appear to be any statute elsewhere which would do so. Compare 18 U.S.C. § 1905 (1970). Nor does it appear that injunctive relief would be helpful, since a decree probably could not be obtained before the damage was done. In the end, the foreign principal would simply have to rely on the good faith of the Attorney General's delegates at the Justice Department.
Were foreign principals not the clients here, this reliance might suffice. But, however unreasonable it may appear to be, foreign interests might well doubt that officials of the Justice Department would or could keep the information disclosed to them confidential. The Court concludes, then, that to some extent at least the policy supporting the attorney-client privilege would likely be compromised by denying the foreign principal the power to claim the privilege against the disclosure of certain documents to officials of the Justice Department. This is, therefore, a problem which Congress might well have considered when it drafted the statute. And if it did not, one which the Court must now resolve.
The Foreign Agents Registration Act does deal partially with the question of confidential communications between a foreign interest and its attorney in 22 U.S.C. § 613. That section exempts certain "agents of foreign principals" from the disclosure requirements of §§ 612 and 614 and thus from the recordkeeping and disclosure requirements of § 615. This is most obvious in § 613(g), which exempts:
[any] person qualified to practice law, insofar as he engages or agrees to engage in the legal representation of a disclosed foreign principal before any court of law or any agency of the Government of the United States . . . .
This provision obviously would protect confidential communications related to these activities. The problem with § 613(g) is that it does not include all the communications that have been traditionally protected by an attorney-client privilege. That privilege extends to all communications where legal advice of any kind is sought, whether made in contemplation of litigation or not. See 8 Wigmore, Evidence §§ 2294-99 (McNaughten rev. 1961). Therefore, this exemption, taken alone, would leave a substantial amount of confidential communications between a foreign principal and its agent-attorney subject to the recordkeeping and disclosure requirements of § 615.
The second place in which confidential communications between a client and his attorney are indirectly dealt with is in § 613(d). This provision exempts:
[any] person engaging or agreeing to engage only (1) in private and nonpolitical activities in furtherance of a bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest . . . .