Why? The email was not to Ensign. Rather, it was sent to the communications director for Ensignís Senate office, who was helping Ensign draft his public statement regarding the affair.
In general, the attorney-client privilege protects confidential communications between clients and their attorneys for the purpose of obtaining legal advice. Under the privilege, no one, not even the government, can force you to produce documents reflecting privileged communications with your attorney. The idea behind the privilege is to allow you to be fully candid when seeking legal advice, without fear that your communications might one day be subject to review by someone else.
In Ensignís case, however, the communication from his attorney was not to Ensign. With some exceptions, in order for a communication to be protected by the attorney-client privilege, the communication must be between a client and his attorney. Moreover, in order for the privilege to apply, the communication must be confidential, meaning, again with some exceptions, that no third party is privy to the communication. If a third party is privy to the communication, the privilege usually will not apply. In this case, Ensignís attorney sent the email to his officeís communications director, to a Gmail address that she shared with her husband.
This episode is an excellent reminder for Members and staffers. Given the time constraints that Membersí busy schedules often impose on them, Members can grow accustomed to relying on staffers for important tasks. When it comes to dealing with attorneys, however, Members should be aware of the risks that arise when someone other than a Member communicates with his attorney. Confidentiality is far from assured.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.