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Privileged Communications in Congressional Investigations

Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in congressional investigations.

The article also focuses on a more unusual topic: the extent to which communications by lawyers and others involved in representing private parties in congressional investigations or other proceedings will themselves be protected by privilege. In other words, if a company hires lawyers, lobbyists or media consultants to represent it in connection with a congressional investigation, will it be able to claim privilege over its communications with these professionals, if for example they should be sought by adversaries in a future civil or criminal proceeding?

Not surprisingly, the answer turns out to be complicated. But it got me to wondering whether congressional committees could bolster future claims of privilege by, for example, allowing attorneys for congressional witnesses to “enter an appearance” in an investigation. In exchange for counsel adhering to certain ground rules established by the committee (eg, counsel could be required to acknowledge that the committee is a “tribunal” within the meaning of the legal ethics rules), it could recognize the privileged nature of the representation, which might (or might not) have an influence on courts or other tribunals considering future claims of privilege.

Does anyone know of committees doing this or something similar?

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