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 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
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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
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general is supposed to also consider that public interest 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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