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United States District Court, District of Columbia

April 16, 1999


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



Plaintiff Daniel Jacobs is a journeyman trial lawyer at the Environment and Natural Resources Division ("the Division"), Environmental Enforcement Section ("the Section"), of the U.S. Department of Justice ("the DOJ"). Defendant Lois Schiffer is the assistant attorney general in charge of the Division and of Mr. Jacobs. In the course of his duties Mr. Jacobs developed qualms about the propriety of certain strategies and tactics that he saw the Section employ in cases to which he was assigned, and he reported his misgivings to his supervisors — ultimately, to Ms. Schiffer. Coincidentally or not, at around this time Jacobs' superiors lowered his performance rating and transferred him against his wishes.

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.


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.

More broadly, the Court concludes that a government lawyer does not, under Rule 1.6, "reveal" his client's confidences and secrets when he discloses to his personal attorney — with the express understanding that the information should go no further — only those confidences and secrets that the latter needs in order to advise the government lawyer of his rights and obligations as a possible whistleblower. The personal attorney becomes, in practical effect, simply a learned alter ego of the government lawyer and equally duty-bound to treat the confidences and secrets of the government lawyer's client as his own. An alternative interpretation would effectively deny Mr. Jacobs the ability to obtain legal advice in a situation that places both his employment and his law license in jeopardy. Such an interpretation would seem to place Rule 1.6 in tension with the Fifth Amendment's guarantee of due process. Cf. Martin v. Lauer, 686 F.2d 24, 32 (D.C.Cir. 1982) ("Since the [agency's requirement] works to restrict communications between government employees and their attorneys, it implicates the fundamental right of those employees to meaningful access to the courts."); Potashnick v. Port City Construction Co., 609 F.2d 1101, 1117 (5th Cir. 1980) ("[T]he right to retain counsel in civil litigation is implicit in the concept of fifth amendment due process.").

So, with respect to some, if not all, of the nonpublic information that Mr. Jacobs describes in his in camera submission, unapproved disclosure to personal counsel would conform to the law and the rules of professional conduct while nevertheless transgressing Ms. Schiffer's requirement. Thus, the restraint that the government, in the person of Ms. Schiffer, imposes on Mr. Jacobs is broader than that imposed by law or professional ethics. The remaining issue is whether the restraint is unconstitutionally over-broad.


In Martin v. Lauer, 686 F.2d at 31-35, the D.C. Circuit articulated an approach that is most pertinent to this case. The question facing the court of appeals in Martin was whether the head of a DOJ office could require employees suing the office over a reduction in force to reveal to him any nonpublic information that they had given to their attorney. Id. at 31. The Martin court concluded that the proper way to resolve the issue was to balance the interests of the employees, qua citizens, against those of the government, as an employer. Id. (citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).

The Martin court first set out to identify the employees' interests and assess their importance. It found that the employees' "speech interests [were] not only legitimate but, because they implicate[d] appellants' fundamental right of access to the courts, [were] deserving of rigorous protection." Id. at 33. After all, "[a] government employee deciding whether to `blow the whistle' on government fraud, waste, abuse or illegality must ascertain whether disbursal of the information that supports his charges is `prohibited by law.' . . . Surely, he must be allowed to consult his attorney for an answer to that question absent some strong governmental interest in limiting such communications." Id. at 33 n. 41.

Turning an eye to the other side of the scale, the Martin court recognized that, in general, regulations governing the public disbursal of sensitive information by agency employees served substantial government interests. Id. at 33-34. The court of appeals found, however, that the information at issue was not particularly sensitive, relating as it did solely to internal personnel rules and practices. Id. at 34. With respect to such information, the DOJ's interest in discouraging dissemination did not warrant depriving the plaintiffs of confidentiality in their communications with their attorney — an action which cut "deeply into the employee[s'] first amendment rights." Id. at 34-35.

The Martin court addressed only the DOJ's policy of requiring its employees to divulge to their superiors after the fact any nonpublic information that they had already disclosed to counsel. Id. at 31. In this case, the Court faces what amounts to a prior restraint — an attempt to require an employee to notify his agency-employer and obtain permission before disclosing any nonpublic information to his personal lawyer. To enforce the requirement in this case would put the agency on notice of the employee's suspicions of wrongdoing. It would also delay the employee's access to legal advice until the request for authorization to disclose had run its administrative course: If the employee must follow FOIA procedure before imparting the information to his lawyer, he may, irrespective of whether he prevails, be deprived of legal counsel for months or years, and the more embarrassing or inculpatory the information, the greater the risk that implicated persons within the agency will stall the FOIA process. In sum, the restraint imposed on Mr. Jacobs' legitimate interests is considerably more onerous than the one that the D.C. Circuit found unconstitutional in Martin.

At the same time, it must be noted, the information that Jacobs wishes to impart to his attorney is more sensitive than that which the plaintiffs in Martin had revealed to theirs.*fn10 Unsurprisingly, then, and in contrast to the defendant in Martin, Ms. Schiffer has put forward several quite important government interests that the inhibitions imposed on plaintiff are designed to protect — interests that, Ms. Schiffer claims, will be irredeemably compromised if Jacobs is allowed to do as he wishes.

First, the government generally has an interest in maintaining a frank and unrestricted flow of communication between agencies and their government counsel. This open exchange is necessary if agencies are to enforce the law as well as abide by it. According to Ms. Schiffer, "it would chill necessary discussions and impede the free exchange of ideas if every privileged communication to which Mr. Jacobs had access as an attorney with the Department could be delivered to a third party without the client's consent." Def.'s Mot.Summ.J. at 18-19.

Second, the government has an interest in maintaining its ability to litigate effectively, whether in bringing legal action or defending against it. If disgruntled government lawyers could, without departmental screening, disclose to third parties the nonpublic information to which they had become privy, litigants with interests adverse to the government might be able to obtain information not otherwise available through proper discovery channels. Id. at 19-20.

In her in camera submission, defendant particularizes additional DOJ interests that the pre-disclosure requirement is designed to protect in the circumstances of this case.*fn11 In short, Ms. Schiffer has, to a far greater degree than the defendant in Martin, demonstrated that substantial government interests are at stake.

Fortunately, it does not appear that the Court must sacrifice one party's interests in order to protect the other's, for it is possible to protect the government's interests without foreclosing whistleblowers from informed legal advice. In Martin, the court of appeals found that "the government may protect its interests in prohibiting public disbursal of any sensitive information without intruding on the employee's substantial interest in freely discussing his legal rights with his attorney." Martin v. Lauer, 686 F.2d at 34. The first, and least restrictive, alternative that the court of appeals proposed was that the government itself invoke the advising attorney's duty to maintain client confidences:

    Because the attorney is bound to maintain the
  confidence of his client, . . . matters disclosed in
  confidential discussions between the attorney and his
  client would only become public if the client
  authorized the attorney to make such a disclosure or
  the attorney breached his ethical obligations.
  Arguably, the government could protect its interest
  in preventing public disclosure of government
  information by requiring the employee not to
  authorize any subsequent disclosure of sensitive
  government information by his attorney.


Defendant doubts that this first alternative would adequately protect the government's interests in this case. In Martin, there was no allegation that either the employee-plaintiffs or their lawyer had any inclination to disseminate the information that the employees brought away from the agency or to make use of it other than for purposes of the employment controversy. The Martin court explicitly relied on this fact in reaching its decision.*fn12 In this case, by contrast, defendant has made clear the reasons for her concern that nonpublic information received by plaintiff's counsel will find its way into the media and/or into the hands of third parties whose interests are inimical to the Division and its clients. See Def.'s Mot.Summ.J. at 20. Given that Mr. Jacobs openly seeks the freedom to share the nonpublic information he possesses indiscriminately with lawyers at "public interest and professional organizations committed to civil rights, whistleblower rights, government accountability, and environmental enforcement," Am. Compl. ¶ 58, defendant's fear is not entirely misplaced.

The D.C. Circuit proposed a second alternative in Martin for situations where the government cannot sufficiently protect its interests by simply requiring its employees to instruct their personal attorneys to keep all its nonpublic information confidential. The Martin court suggested that if the "agency had cause to believe [that] the employees or the attorney contemplated" revealing nonpublic information to others, "it might seek a protective order from the court." Martin v. Lauer, 686 F.2d at 32 n. 34. Such an order, the court of appeals believed, would protect the government's interests without infringing on the employees' rights. Id. at 35 n. 44.

Ms. Schiffer has acknowledged that the entry of an "appropriately stringent" protective order would adequately protect the government's interests in this case.*fn13 But her idea of an appropriate order is one that specifically lists the government documents that Mr. Jacobs may submit to his attorney. Ms. Shiffer thus proposes that an agency employee be allowed to share nonpublic information with his attorney only after revealing the entire universe of nonpublic information that he contemplates disclosing, which is not what the Martin court appeared to have in mind. Rather, the D.C. Circuit was suggesting that the government's interests could be protected, even in a case where the employee's personal attorney could not otherwise be trusted to keep nonpublic information confidential as a matter of professional obligation, by a court order directing him to do so. Nowhere in its decision did the Martin court intimate that a protective order must be itemized. All that is required here is an order directing Mr. Jacobs' attorney to keep in confidence, and to use only for the purpose of rendering advice to Mr. Jacobs, any nonpublic information that his client may impart to him. The availability of such a protective order as a less restrictive alternative compels this Court to conclude that Ms. Schiffer's insistence upon advance approval violates the right to free speech guaranteed Mr. Jacobs by the First Amendment. Since the Court finds the restraint invalid on free-speech grounds, it need not decide whether the restraint also violates Mr. Jacobs' rights to free association and due process.

The correlative question is whether Ms. Schiffer's requirement violates Mr. Jacobs' constitutional rights to the extent that it reaches beyond disclosure to his private attorney. Applying the balancing test used in Martin, the Court finds that to the extent that Mr. Jacobs wishes to disclose nonpublic information to an unspecified number of unidentified attorneys at unnamed public-interest organizations, such disclosure would greatly increase the risk of harm to the agency's legitimate interests while affording Jacobs, for present purposes, simply the opportunity to shop his case, which is hardly a sine qua non of adequate legal advice. With that in mind, and considering that Mr. Jacobs can, under the protection of the Whistleblower Protection Act, divulge to the OSC whatever nonpublic information he wants,*fn14 it is the opinion of the Court that Ms. Schiffer's requirement of pre-disclosure clearance does not infringe on Mr. Jacobs' constitutional rights insofar as it may inhibit disclosures of nonpublic information to unspecified individuals at unnamed public-interest organizations.


Finally, there is Mr. Jacobs' demand that Ms. Schiffer pay his attorney's fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the "EAJA"). The EAJA provides that a court shall award "fees and other expenses" to a party that has prevailed in a civil action against an official of the United States acting in his or her official capacity unless the position of the United States was "substantially justified." 28 U.S.C. § 2412(d)(1)(A). The government bears the burden of proving that its position in the lawsuit was substantially justified, which in this context means proving that the position had "a reasonable basis in law and fact." Air Transport Association of Canada v. Federal Aviation Administration, 156 F.3d 1329, 1332 (D.C.Cir. 1998) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)).

Mr. Jacobs' prayer for relief generally exempting him from inhibitions on the disclosure of nonpublic information to any sympathetic third party likely to offer to advise him represents an extreme to which the Court has not found him entitled. In the circumstances the Court concludes that Ms. Schiffer was substantially justified in resisting Jacobs' request for carte blanche permission to disclose without following the rules. Plaintiff's request for an award of attorneys' fees and expenses is therefore denied.

For the foregoing reasons it is, this 16th day of April, 1999,

ORDERED, that plaintiff's motion for summary judgment is granted in part and denied in part; and it is

FURTHER ORDERED, that defendant's motion for summary judgment and motion to dismiss are granted in part and denied in part; and it is

FURTHER ORDERED, that defendant is enjoined permanently from requiring plaintiff to notify the DOJ and obtain authorization before disclosing to counsel hereinafter identified any nonpublic information without which, according to counsel's good-faith belief, counsel cannot formulate effective legal advice to plaintiff regarding matters arising from events giving rise to this action; and it is

FURTHER ORDERED, that in the context of this Order, "counsel" means Robert Van Kirk and all other lawyers at the firm of Williams & Connolly who may participate in advising plaintiff in matters arising from events giving rise to this action, as well as paralegal assistants, secretaries, and clerical and administrative personnel employed by Williams & Connolly who may work on said matters; and it is

FURTHER ORDERED, that counsel aforesaid shall not, without prior leave of this Court, disclose any nonpublic information obtained from plaintiff to any person or entity outside of Williams & Connolly, nor shall counsel use said information for any purpose other than in advising plaintiff in matters at issue in this action; and it is

FURTHER ORDERED, that nothing in this Order shall be read to authorize plaintiff or counsel to violate any law or rule of professional conduct; and it is

FURTHER ORDERED, that the Clerk shall enter judgment in accordance herewith; and it is

FURTHER ORDERED, that plaintiff's request for an award of fees and expenses pursuant to 28 U.S.C. § 2412 is denied.

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