Will Toyota Sue to Prevent Congress from Getting its Attorney-Client Privileged Documents?

           The National Law Journal reports that the U.S. House Committee on Oversight and Government Reform has subpoenaed a former Toyota attorney named Dimitrios Biller, seeking internal documents relating to Biller’s defense of Toyota in rollover litigation from 2003 to 2007.  Biller left the company on bad terms in 2007.  Subsequently, he accused it of concealing or destroying evidence in personal injury cases, and Toyota sued him for divulging information protected by the attorney-client privilege.  Last September a California state court judge referred Biller to the California State Bar for improperly publicizing Toyota’s privileged information.   

This raises some interesting issues about the role of the attorney-client privilege in congressional proceedings.  In a previous post, I explained that Congress has generally asserted a right to disregard the attorney-client privilege (and other common law privileges).  This claim is not one that sits well with the American Bar Association or the legal profession in general.  Nevertheless, it is extremely difficult, as a practical matter, to contest Congress’s position.  A lawyer who receives a congressional subpoena for privileged information cannot challenge it in court (because the Speech or Debate Clause precludes a suit against the congressional committee that issued the subpoena).  Thus, he or she must either comply with the subpoena or risk being held in contempt, with the possibility of facing criminal fines or prison.   

            In 1999 a legal ethics panel of the D.C. Bar ruled that a lawyer who was subpoenaed to provide privileged information to a congressional subcommittee had “a professional responsibility to seek to quash or limit the subpoena on all available legitimate grounds to protect confidential documents and client secrets.”  Once, however, the congressional subcommittee overruled these objections and threatened to hold the lawyer in contempt, there was no longer a professional obligation to resist.   The panel found that “[a] lawyer has satisfied his or her professional obligation to maintain client confidences once all objections have been made and exhausted and is not required by the Rules to stand in contempt of Congress if the subcommittee overrules the objections.”  Importantly, however, there is an exception to this rule if the client obtains a court order forbidding the lawyer from complying with the congressional subpoena. 

            In most cases the lawyer and the client have aligned interests, and a judge might be reluctant to intervene in a congressional matter simply because client files a collusive lawsuit against the lawyer.  In the current situation, however, there is a genuine adversarial relationship between Toyota and Biller, and Toyota can plausibly argue that Biller cannot be expected to make all reasonable efforts to limit the disclosure of its privileged information.  Therefore, if Toyota were to file a lawsuit seeking an injuction or declaratory judgment to prevent Biller from complying with the congressional subpoena, it would be in an unusually strong position to convince a court to reach the merits of the case.  Then the judge would have to decide whether the attorney-client privilege is fully applicable in congressional proceedings, a question which, as the D.C. Bar panel noted, has never been definitively resolved by the courts.