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The lawyers’ dilemma

From the Publisher's Desk By Mar-Vic Cagurangan

In 2012, Kathleen Clark, a law professor at Washington School of Law, discussed the apparently unresolved issue of attorney-client privilege in government cases. At the center of her discussion was a complaint filed by Alberto Mora, former general counsel of the Department of the Navy, who fought an internal bureaucratic battle on the issue of attorney-client privilege in government.

The case stemmed from the government’s harsh treatment of Guantanamo Bay prisoners, and Mora’s efforts to ensure humane treatment of the prisoners were met with powerful opposition, including then-Secretary of Defense Donald Rumsfeld and Defense Department General Counsel William Haynes.

Mora argued, “Examination of law and statutes suggests a norm that governments – unlike private sector clients – do not have a legitimate interest in keeping secret information about their own wrongdoing.”

The lawyer-client information involving a private client, according to Clark, is traditionally ruled by “secrecy unless there is a good reason for disclosure.” But in the case of government information, Clark pointed out that the overriding norm in the modern era “is disclosure unless there is a good reason for secrecy.”

The legal question is close to home.

   Who is the attorney general’s client? We, non-lawyers, the people of Guam who vote for the attorney general, make the simple assumption that we are the client of the person we elect into office, whose salary is paid with our tax dollars. When the office was converted from an appointive to elective position in 1998, we assumed that the attorney general had been freed from the claws of the island’s chief executive.

But we scratched our heads as we listened to the lawyers’ arguments before the Supreme Court of Guam last month.

The attorney general serves concurrently as the chief legal officer for the government of Guam and the attorney for the people of Guam, but when the dual functions present a conflict that demands a loyalty check, the public takes precedence, according to Douglas Moylan.

When a government agency is found to have violated the law, the attorney general is duty-bound to take legal action on behalf of the people, Moylan said, noting that the attorney-client privilege in this case belongs to the public. “The attorney general protects the public interest, and the attorney general is supposed to also consider that public interest when protecting the government department,” he argued.

Leslie Travis, legal counsel for the administration, argued that the attorney general can perform dual roles as a prosecutor and attorney for government agencies and that providing legal services “cannot be defeated by ethical restrictions.”

Jordan Lawrence Pauluhn, legal counsel for Guam Memorial Hospital, backed Leslie’s arguments. “The procurement record is a public record. Our agencies are still entitled in that process to confidential advice from attorneys,” he argued.

 The legalese-filled showdown left us confused, helpless and inadequate. If the privilege belongs to the government, how do we get protected from any backroom shenanigans?

Until the Supreme Court renders its ruling, we the people do not know where we stand. But certainly, we know what ruling we hope to hear.

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