## Facts

- Federal prosecutors investigated alleged corruption in the Illinois Secretary of State’s office (“Operation Safe Road”) involving improper issuance of licenses and other benefits, misuse of campaign funds, and obstruction of justice.
- Roger Bickel served as Chief Legal Counsel to the Illinois Secretary of State’s office during the first four years of George Ryan’s administration, advising Ryan and other officials on official duties.
- Bickel also served as personal counsel to Ryan, Ryan’s wife, and Ryan’s campaign committee.
- A federal grand jury subpoena and a motion to compel sought Bickel’s testimony about conversations with Ryan in Bickel’s official capacity as General Counsel.
- Ryan refused to waive attorney–client privilege as to his prior conversations with Bickel and intervened to block compelled testimony.
- The current Secretary of State, Jesse White, sent a letter purporting to waive any attorney–client privilege held by the office as to Bickel’s official conversations with office personnel.
- The district court ordered Bickel to testify, holding that no government attorney–client privilege applied in a federal criminal investigation, and alternatively that any such privilege was waived.
- The court of appeals took jurisdiction under the Perlman doctrine because the subpoena targeted a third party (Bickel) not expected to incur contempt to obtain review.

## Issues

1. Whether federal common law recognizes a state government attorney–client privilege that permits a state government lawyer to refuse to disclose official communications to a federal grand jury investigating criminal wrongdoing.
2. If a government attorney–client privilege could exist, whether it belongs to the governmental entity (and thus the current officeholder) rather than a former officeholder, and whether it was waived.

## Decision

- The Seventh Circuit affirmed the order compelling Bickel’s grand jury testimony about official communications with Ryan.
- The court held that, in a federal criminal grand jury investigation, federal common law does not recognize a government attorney–client privilege that would shield a state officeholder’s official communications with a government lawyer.
- Because no privilege barred disclosure, the court did not rely on waiver to affirm, though it addressed waiver principles in the alternative.

## Legal Principles

- Privileges are narrowly construed because they are exceptions to the general rule that the public is entitled to every person’s evidence.
- In federal criminal proceedings (including grand jury investigations), privilege questions are governed by federal common law under Federal Rule of Evidence 501, not by state privilege rules.
- A state official cannot use communications with a taxpayer-funded government lawyer, made in the course of official duties, to withhold evidence from a federal grand jury investigating possible official misconduct.
- If a governmental attorney–client privilege exists in other contexts, it is held by the governmental entity (the office), not by an individual officeholder; authority to assert or waive it rests with the incumbent leadership of the entity.

## Conclusion

The court required a state agency lawyer to testify before a federal grand jury about official communications with a former state officeholder, holding that federal common law does not allow a state government attorney–client privilege to obstruct a federal criminal investigation.


In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002)