Attorney-Client Privilege in Congressional Investigations

Claims of Privilege

In practice, Congressional committees do, to varying degrees, regularly respect validly asserted claims of privilege by not insisting on production of information that would improperly intrude on the confidential nature of the attorney-client relationship. This is because most members of Congress and their staffs, many of whom are lawyers themselves, recognize that many of the basic societal values underlying common-law attorney-client privilege apply as forcefully in the Congressional setting. The attorney-client privilege promotes the public interest in the observance of law by encouraging full and frank communications between attorneys and their clients. Though some assert that the privilege should never apply because a Congressional investigation is not an adversarial proceeding, this view is far too narrow. For example, a lawyer might counsel a witness appearing before Congress on the witness's Fifth Amendment rights, and counsel's advice should be informed by full and frank communication with the client. Any discussions or communications between attorney and client related to the Congressional investigation itself should be, and are, viewed as falling into a different category of privilege ' one on unquestionably firm ground ' than the assertions of the privilege discussed below. It is simply not Congressional practice to request information or documents related to counsel's representation of the client in the Congressional investigation itself.