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JACOBS v. SCHIFFER

April 16, 1999

DANIEL S. JACOBS, PLAINTIFF,
v.
LOIS J. SCHIFFER, DEFENDANT.



The opinion of the court was delivered by: Jackson, District Judge.

MEMORANDUM AND ORDER

I.

In consequence Jacobs consulted a private attorney. He would like the attorney to advise him whether the conduct that he reported within the DOJ constituted wrongdoing, whether his superiors improperly retaliated against him, and what public disclosures he might lawfully make under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). The attorney has understandably concluded that he cannot answer such questions until Mr. Jacobs provides details about the conduct he observed, the reports that he made to his superiors, and their responses. The attorney has also asked to see the internal DOJ documents that Jacobs says support his version of events.

As matters presently stand, although Jacobs has possession of copies of the relevant documents, the attorney has not looked at them, nor has he allowed Mr. Jacobs to impart any FOIA-exempt*fn1 (hereinafter "nonpublic") information to him orally. The attorney has inquired of Ms. Schiffer whether she would object if Mr. Jacobs disclosed the necessary information to him. In two different letters, Ms. Schiffer has replied in substance that any disclosure Mr. Jacobs proposes to make of any nonpublic information that he has acquired in his capacity as a government lawyer is controlled by departmental rules and regulations, as well as by statute. Neither his purpose in disclosing the information nor the identity of the recipient alters the requirements precedent to its authorized disclosure. In order to obtain the DOJs' acquiescence, Mr. Jacobs first must make a formal request, identifying exactly what he proposes to reveal. The DOJ will then decide whether or not to authorize its disclosure.

Mr. Jacobs believes that Ms. Schiffer's response implies a threat to subject him to disciplinary action if he reveals any nonpublic information, even to his attorney, without prior authorization. While neither of the letters on which Mr. Jacobs bases his apprehensions mentions in so many words the possibility of disciplinary action as a consequence of unauthorized disclosure,*fn2 Ms. Schiffer has, throughout this litigation, maintained her authority to discipline Mr. Jacobs if his conduct warrants, including a breach of confidentiality.*fn3

Mr. Jacobs states three causes of action in his amended complaint. First, he claims that Ms. Schiffer's pre-disclosure clearance requirement violates the First Amendment in that it unjustifiably suppresses speech that relates to matters of significant public concern. Second, he claims that the pre-disclosure requirement violates the First Amendment in that it unjustifiably curtails his freedom to associate with his current attorney and any public-interest lawyers who might agree to advise him on a pro bono basis. Finally, Mr. Jacobs claims that the requirement violates the Fifth Amendment in that it unjustifiably restricts his access to the courts by hindering his ability to receive legal advice.*fn4

The case is presently before the Court on cross-motions for summary judgment. The Court must therefore render judgment at this stage "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." Fed.R.Civ.P. 56(c). The parties agree that there is no genuine issue as to any material fact, although, each having made ex parte submissions for in camera consideration by the Court, both are unaware of certain facts that bear upon the Court's decision.

II.

Ms. Schiffer contends that she personally has imposed no restriction on Mr. Jacobs' speech. In support of this contention, she cites various statutes and regulations that, as she reads them, prohibit government employees from unilaterally disclosing nonpublic information to anyone without authorization and make no exceptions for communications to a private attorney for the purpose of securing personal legal advice.*fn5 Here Ms. Schiffer overreaches, however, for while her position vis-à-vis Jacobs apparently applies to all of the nonpublic information he possesses, regardless of its type or the use to which he would put it, the statutes and regulations themselves limit their scope either to certain types of nonpublic information*fn6 or certain uses.*fn7 Even in the aggregate, these rules do not achieve the absolute embargo that Ms. Schiffer imposes by insisting upon clearing in advance everything that Jacobs would impart to his lawyer. In fact, it is clear on this record that Mr. Jacobs could show his attorney some, if not all, of the documents that he would like to disclose without violating any statute or regulation.*fn8

In addition to the statutory and administrative prohibitions against the release of nonpublic information generally, however, Ms. Schiffer invokes the professional rules governing attorney conduct. As an attorney, she argues, Jacobs is bound as well by ethical constraints not applicable to lay government employees. According to the D.C.Rules of Professional Conduct, "a lawyer shall not knowingly . . . [r]eveal a confidence or secret of the lawyer's client." D.C.RULES OF PROFESSIONAL CONDUCT Rule 1.6(a).*fn9 Most of the material that Mr. Jacobs would like to impart to his attorney contains confidential and/or secret information that Jacobs obtained in the course of representing his agency client, the Environmental Protection Agency ("EPA"). The question thus posed is whether a government lawyer "reveals" his client's confidences and secrets when he discloses them in confidence to his personal attorney to enable the personal attorney to advise the government lawyer of the latter's rights and obligations, personally and professionally, and as a potential whistleblower.

In urging the Court to answer this question in the affirmative, Ms. Schiffer refers to Comment 10 to Rule 1.6, which states that "in the absence of consent of the client after full disclosure, a lawyer should not associate another lawyer in the handling of a matter; nor should the lawyer, in the absence of consent, seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or the client's confidences or secrets would be revealed to such lawyer." Id. cmt. 10.

In the Court's opinion, Comment 10 is not apposite in the instant context. It adjures a lawyer to obtain consent before revealing his client's confidences or secrets to another lawyer whose advice he seeks in furtherance of his client's interests. Mr. Jacobs is not seeking advice on how to handle his representation of the EPA. Rather, he wants help in charting a course that will protect his rights and the public interest without violating the law or his professional obligations. Therefore, Comment 10 does not speak to the type of counsel that Mr. Jacobs is seeking.


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