# Roberts' papers as deputy solicitor general covered by attorney-client privilege? **URL:** \ **Category:** Great Debates\ **Created:** [July 25, 2005, 10:40pm UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126 "2005-07-25T22:40:01Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 2:49am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/21 "2005-07-26T02:49:51Z")
> [@furt](#): > > Anecdote: I was accused of a felony. Naively, I told my lawyer that I was indeed guilty. He said something to the effect of “I don’t give a rat’s ass if you’re guilty.” That is exactly the correct response for a lawyer to give. Its actually not quite the correct answer to give. Once you tell him that he can’t allow you to perjure your self. See: > [@](#): > > Thus, if your client refuses to make the appropriate disclosure, you must make disclosure if, for example, in helping your client prepare a securities disclosure statement, a sale of a business or property, or a listing of assets for a bankruptcy, marriage dissolution or estate proceeding, you find that your client is committing a crime and that your silence will assist that conduct. The same conclusion would appear to apply where the client is prepared to perjure himself or herself and your silence will assist that perjury. [http://www.wsba.org/media/publications/barnews/ethics/jan-98-ethics.htm](http://www.wsba.org/media/publications/barnews/ethics/jan-98-ethics.htm) So yes, that would be relevant information especially if the attorney broke ethical or legal rules in regards to that information. And again, you are a private citizen and he is a private attorney. The SG is a public official and his clients are public officials acting in their governmental roles. If there are crimes or impropriaties being committed then those need to be brought to light. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 26, 2005, 2:54am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/22 "2005-07-26T02:54:11Z")
> [@furt](#): > > Anecdote: I was accused of a felony. Naively, I told my lawyer that I was indeed guilty. He said something to the effect of “I don’t give a rat’s ass if you’re guilty.” That is exactly the correct response for a lawyer to give. > > As it happens, my crime fell into the “stupid yet understandable crap people do when they’re young” category, and he got it reduced to a misdemeanor. However, if I was accused of child molestation or murder, and he got me acquitted; further suppose that he ran for office ten years later, I testified to his words. > > I think that would kill his political future. Yes . . . but testifying to that effect would be your right, and not in derogation of any right of your lawyer’s; and he knew it when he met with you. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2005, 3:00am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/23 "2005-07-26T03:00:12Z")
> [@BrainGlutton](#): > > Yes . . . but testifying to that effect would be your right, and not in derogation of any right of your lawyer’s; and he knew it when he met with you. Yes, but that story was offered in response to the question: "Can you give an example why an attorney doing the best job he can within legal and ethical limits would damage his reputation as a lawyer? " I think you will agree it answers that question. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 26, 2005, 3:04am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/24 "2005-07-26T03:04:37Z")
> [@Bricker](#): > > Yes, but that story was offered in response to the question: "Can you give an example why an attorney doing the best job he can within legal and ethical limits would damage his reputation as a lawyer? " > > I think you will agree it answers that question. But it doesn’t. See **treis’** post above. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 3:08am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/25 "2005-07-26T03:08:33Z")
I’d also like to modify the request to a scenario that would apply to a government lawyer. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2005, 3:09am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/26 "2005-07-26T03:09:44Z")
> [@treis](#): > > Its actually not quite the correct answer to give. Once you tell him that he can’t allow you to perjure your self. See: > > > [@](#): > > > > Thus, if your client refuses to make the appropriate disclosure, you must make disclosure if, for example, in helping your client prepare a securities disclosure statement, a sale of a business or property, or a listing of assets for a bankruptcy, marriage dissolution or estate proceeding, you find that your client is committing a crime and that your silence will assist that conduct. The same conclusion would appear to apply where the client is prepared to perjure himself or herself and your silence will assist that perjury. > > [http://www.wsba.org/media/publications/barnews/ethics/jan-98-ethics.htm](http://www.wsba.org/media/publications/barnews/ethics/jan-98-ethics.htm) > > So yes, that would be relevant information especially if the attorney broke ethical or legal rules in regards to that information. And again, you are a private citizen and he is a private attorney. This is getting tiresome. Nothing in your quote is relevant to the story **furt** relates. **furt** was not contemplating perjury, preparing a securities disclosure statement, a sale of a business or property, or a listing of assets for a bankruptcy, marriage dissolution or estate proceeding. The attorney’s response was perfectly appropriate, and your reaction it to is PRECISELY the sort of ignorance that makes my point. > [@](#): > > The SG is a public official and his clients are public officials acting in their governmental roles. If there are crimes or impropriaties being committed then those need to be brought to light. We’ll set “crimes” aside for the moment. How about strategic decisions concerning interaction with key members of the Senate, and candid opinions from the attorney concerning Senate members, the influence they have, and their abilities? Does the country have a right to learn that? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 3:10am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/27 "2005-07-26T03:10:32Z")
I’d also like to modify the request to a scenario that would apply to a government lawyer. Certainly Mr. Roberts private employers are under no obligation to disclose Mr. Roberts’ legal advice. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 3:19am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/28 "2005-07-26T03:19:32Z")
> [@Bricker](#): > > This is getting tiresome. > > Nothing in your quote is relevant to the story **furt** relates. **furt** was not contemplating perjury, preparing a securities disclosure statement, a sale of a business or property, or a listing of assets for a bankruptcy, marriage dissolution or estate proceeding. The attorney’s response was perfectly appropriate, and your reaction it to is PRECISELY the sort of ignorance that makes my point. Huh, what about the last line? There certainly is a good chance that I am mistaken but I was under the impression that lawyer could not knowingly allow his client to perjure himself. > [@Bricker](#): > > We’ll set “crimes” aside for the moment. > > How about strategic decisions concerning interaction with key members of the Senate, and candid opinions from the attorney concerning Senate members, the influence they have, and their abilities? Does the country have a right to learn that? Strategic (assuming politically strategic) decisions are not official government business and the public does not necessarily have a right to know about those. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 3:28am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/29 "2005-07-26T03:28:30Z")
> [@Bricker](#): > > This is getting tiresome. > > Nothing in your quote is relevant to the story **furt** relates. **furt** was not contemplating perjury, preparing a securities disclosure statement, a sale of a business or property, or a listing of assets for a bankruptcy, marriage dissolution or estate proceeding. The attorney’s response was perfectly appropriate, and your reaction it to is PRECISELY the sort of ignorance that makes my point. Ah pardon my previous post. I have no problem with the attorney not caring that **furt** was guilty and my statement was that the statement wasn’t quite correct and its not. The correct answer would be to advise **furt** of his duties and instruct him not to perjure himself. Like I said, neglecting to do so is releveant information and would be more so if he did allow **furt** to perjure himself. In the grand scheme of things his answer was not a big deal and I acknowledged it by saying the statement was not quite correct. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [July 26, 2005, 3:36am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/30 "2005-07-26T03:36:45Z")
> [@treis](#): > > In the grand scheme of things his answer was not a big deal… But it would be seen as a big deal by joe average had I been an accused rapist. We’re not talking about perjury; presumably me-the-rapist wasn’t put on the stand. We’re talking about me, years later, bringing it up in an attempt to make my lawyer look bad. As to a a SG instance: Let’s say that the administration is doing something that skirts the edge of illegality. Roberts writes a memo advising that this could possibly be illegal; the law isn’t clear, but it could be. The administration thanks him for his opinion, but does it anyway. He has done exactly his lawyerly duty; but it can easily be spun into “you knew that the government was breaking the law, but you did nothing to stop it.” Indeed, he would still be doing his lawyerly duty if he said “an argument could be made that this action is illegal; however, I don’t think the other party is smart enough to figure that out, and moreover, nobody will likely know or care.” That, AFAICT, is exactly the sort of advice a good lawyer is supposed to give. But it is very easy to get someone with it politically. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2005, 3:38am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/31 "2005-07-26T03:38:36Z")
> [@treis](#): > > Huh, what about the last line? There certainly is a good chance that I am mistaken but I was under the impression that lawyer could not knowingly allow his client to perjure himself. It’s not that simple. A criminal defendant has a Sixth Amendment right to counsel. He also has an absolute right to testify. And a lawyer has a duty of candor towards the tribunal. In other words, the lawyer cannot prevent a client from perjuring himself. Reconciling these conflicting duties is not simple. A lawyer whose client insists of testifying and perjuring himself may ask leave to withdraw from the case. For various reasons, the judge may not permit him to withdraw. If the judge does not permit withdrawal, the lawyer will not use the perjured testimony – he won’t argue it in closing, and will let his client testify in narrative rather than question-and-answer – but ultimately, saying that the lawyer cannot allow a client to perjure himself is not accurate; it’s woefully incomplete. [/quote] Strategic (assuming politically strategic) decisions are not official government business and the public does not necessarily have a right to know about those. [/QUOTE] Good. We agree. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 3:52am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/32 "2005-07-26T03:52:36Z")
> [@furt](#): > > As to a a SG instance: Let’s say that the administration is doing something that skirts the edge of illegality. Roberts writes a memo advising that this could possibly be illegal; the law isn’t clear, but it could be. The administration thanks him for his opinion, but does it anyway. > > He has done exactly his lawyerly duty; but it can easily be spun into “you knew that the government was breaking the law, but you did nothing to stop it.” > > Indeed, he would still be doing his lawyerly duty if he said “an argument could be made that this action is illegal; however, I don’t think the other party is smart enough to figure that out, and moreover, nobody will likely know or care.” > > That, AFAICT, is exactly the sort of advice a good lawyer is supposed to give. But it is very easy to get someone with it politically. This is an exceedingly tenous connection and given the gravity of the appointment I don’t think this should stand in the way of the Senate getting the information it deems its needs. > [@Bricker](#): > > It’s not that simple. > > A criminal defendant has a Sixth Amendment right to counsel. He also has an absolute right to testify. And a lawyer has a duty of candor towards the tribunal. > > In other words, the lawyer cannot prevent a client from perjuring himself. > > Reconciling these conflicting duties is not simple. A lawyer whose client insists of testifying and perjuring himself may ask leave to withdraw from the case. For various reasons, the judge may not permit him to withdraw. If the judge does not permit withdrawal, the lawyer will not use the perjured testimony – he won’t argue it in closing, and will let his client testify in narrative rather than question-and-answer – but ultimately, saying that the lawyer cannot allow a client to perjure himself is not accurate; it’s woefully incomplete. Fine, then “I don’t give a rats ass” isn’t quite the correct answer to give. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 26, 2005, 3:57am UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/33 "2005-07-26T03:57:55Z")
I have an additional question, if this isn’t the wrong time to ask it. Is the Senate normally allowed to see communications like this? I realize that not every Supreme Court nominee is a former Deputy Solicitor General, but there must be some precedent here. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2005, 12:19pm UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/34 "2005-07-26T12:19:22Z")
> [@](#): > > This is an exceedingly tenous connection and given the gravity of the appointment I don’t think this should stand in the way of the Senate getting the information it deems its needs. Apparently the administration disagrees with your analysis. If a majority of the Senate also disagrees, then I guess Roberts will be rejected. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [July 26, 2005, 4:55pm UTC](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126/35 "2005-07-26T16:55:50Z")
> [@Bricker](#): > > Apparently the administration disagrees with your analysis. > > If a majority of the Senate also disagrees, then I guess Roberts will be rejected. I think this is an oversimplification at best. There are many other possible, perhaps even likely, motives for the Administration’s actions. Similarly the Senators will be voting on a package of qualities Roberts has as a nominee, not just the narrow issue of if this was a acceptable use of privilege between the President and the Solicitor General. Enjoy, Steven [Previous page](https://boards.straightdope.com/t/roberts-papers-as-deputy-solicitor-general-covered-by-attorney-client-privilege/314126.md?page=1)