It is tempting to bend the law to get at people, such as Trump and Eastman, who have misbehaved in politically toxic ways. But that temptation should be resisted.
Judge David Carter’s decision on the January 6 committee’s efforts to subpoena John Eastman’s communications is attracting a lot of buzz for accepting the committee’s arguments about the crime-fraud exception to the attorney-client and work-product privileges; more on that later. We should not, however, pass over some of the alarming arguments made by the committee, which troubled Judge Carter in their sweeping implications. Law professors who counsel clients and make court appearances should pay particular note.
Eastman was, Judge Carter found, acting as an attorney for Trump and his campaign when he communicated with Trump and with representatives of the campaign. Those communications took place, in part, through Eastman’s email account as a professor at Chapman University. The committee argued that these attorney-client communications should be made public because Eastman used a university email address to communicate with clients: “The Select Committee argues that Dr. Eastman’s use of his Chapman email prevents all of his communications from being privileged given the university’s monitoring policies. . . . The Select Committee argued at the hearing that use of Chapman email destroys privilege for all [documents].”
Think about this argument: You hire a prominent law professor to represent you, and you communicate with him in confidence, and a committee of Congress argues that it can get those communications simply because the university monitors the professor’s email. Judge Carter, quite properly, refused to apply Trump-only rules to this argument:
The Select Committee’s argument rests on Dr. Eastman lacking a reasonable expectation of confidentiality in his emails. Dr. Eastman argues that he and his clients reasonably expected privacy, particularly since representing clients was part of his duties as a professor. . . . When President Trump and members of his campaign referenced Dr. Eastman in public, they frequently highlighted his position as a law professor. Since Dr. Eastman’s work for President Trump was tied to his position as a “preeminent constitutional scholar[],” it would be logical for his clients to communicate with him through his university email. Moreover, it is clear from reviewing the emails that Dr. Eastman’s correspondents believed they were using an appropriate email address to discuss confidential legal matters. In these circumstances, clients and their agents who communicated with Dr. Eastman on his Chapman University email address had a reasonable expectation of privacy in their communications. . . .
The Court notes that this is not a question of whether an employee can use a work computer for purely personal use. The questions here are whether to penalize clients of law professors for not understanding university email policies, and how professors should navigate mixed signals about what legal work is allowed as part of their academic jobs. . . . The Court notes the public policy implications of a finding that Dr. Eastman waived all attorney-client privilege through his use of Chapman email. Chapman states in its summary of its computer use policy that “[u]sers should not expect privacy in the contents of University-owned computers or e-mail messages.” But at the hearing, Chapman confirmed that its clinical professors continue to use university email for client communications, and that Chapman has taken no steps to clarify its policies after raising concerns in this case. Although Chapman appears to be in the minority of American colleges and universities with a policy this unprotective of privacy, the Court is concerned about the broader ramifications for professors and their clients. Law professors across the country use their university email accounts to communicate with clients, and reasonably expect privacy for those emails as part of their jobs.
The committee’s argument would, if accepted, present potentially serious consequences for legal academics who double as practitioners, including professors who run clinics to provide legal services to the poor (although as a matter of prudence, they might consider establishing a separate account for their legal clients after seeing what was attempted here).
Second, “Chapman University argues that Dr. Eastman’s representation of President Trump was unauthorized based on Chapman’s policies and IRS rules, which the Select Committee argues waives any privilege. . . . IRS rules prohibit faculty from using university resources to support political candidates.” Was attorney-client confidentiality compromised because Eastman was not supposed to be practicing law for the campaign, either due to university policy or IRS rules? The court was also unpersuaded to use a “gotcha” argument grounded in technical violations to destroy the privilege.
Judge Carter noted, first, that a university policy against “compensated outside work” did not apply here because Eastman was uncompensated, and the university had previously treated Eastman’s election-law representations as “scholarly” work that was a benefit to the university’s prestige. The university had also previously asked Eastman to remove his identification with the university from legal briefs, but did not ask him to remove his university email address or phone number from the signature blocks on the brief. And the court was unwilling to impose draconian consequences from ambiguous, unenforced IRS rules:
IRS rules prohibit faculty from using university resources to support political candidates. . . . But as Dr. Eastman notes, the IRS prohibits “[c]ontributions to political campaign funds or public statements . . . in favor of or in opposition to any candidate for public office,” but does not mention post-election litigation for campaigns. Chapman’s endorsement of Dr. Eastman’s 2000 post-election litigation and the lack of IRS enforcement against other law professors representing candidates in post-election litigation suggest that Dr. Eastman’s work on behalf of President Trump was not in violation of IRS rules. . . . For example, Professor Laurence Tribe was counsel of record for candidate Al Gore in the same 2000 postelection litigation.
It is tempting to bend the law to get at people, such as Trump and Eastman, who have misbehaved in politically toxic ways. But that temptation should be resisted, because rules made in hard cases will make bad law. It speaks poorly of the January 6 committee that it has attempted these gambits just to get some documents.