United States v. Jicarilla Apache Nation

Under the doctrine of attorney-client privilege, an attorney must keep confidential certain client information revealed in the course of representation. See Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 606 (2009). There are, however, a number of exceptions to this privilege. One such exception is the “fiduciary exception,” which, under certain circumstances, may require a trustee to disclose to his or her beneficiary otherwise privileged information. See Restatement (Third) of the Law Governing Lawyers § 84 (2000). Here, the Supreme Court must decide whether the privilege protects certain information exchanged between the United States and its attorneys, especially as the information relates to the government’s management of trust funds belonging to the Jicarilla Tribe. The United States primarily argues that the government may keep the information confidential because no statute or regulation explicitly requires disclosure. See Brief for Petitioner, United States of America at 9–10. Jicarilla, on the other hand, contends that despite its sovereign status, the government in this case bears fiduciary and disclosure duties similar to those of a private trustee. See Brief for Respondent, Jicarilla Apache Nation at 7.

Is Disclosure Governed by Federal Statutes and Regulations or by Common-Law Principles?

According to the United States, the Federal Circuit erred in holding that the government had a common-law duty to disclose privileged information to the Jicarilla Tribe. See Brief for Petitioner at 30. The government argues that only federal statutes and regulations, as opposed to judge-made common law, can force government agencies to disclose privileged information to Indian tribes. See Id. at 30–31. The United States points to two recent Supreme Court decisions, United States v. Navajo Nation, 537 U.S. 488 (2003) (Navajo Nation I) and United States v. Navajo Nation, 129 S. Ct. 1547 (2009) (Navajo Nation II), in support of its contention that common-law trust principles cannot create enforceable obligations for the government. See Id. at 31. Additionally, the United States emphasizes that Congress is the entity bestowed with exclusive authority over Indian affairs. See U.S. Const. art I, § 8, cl. 3; Brief for Petitioner at 40. The government thus concludes that Congress’s extensive legislation in the area of Indian affairs has left courts with little room to apply common-law principles, especially on an issue such as government document disclosure. See Brief for Petitioner at 40.

Jicarilla counters that the issue of disclosure is governed by Federal Rule of Evidence 501, which allows federal courts to use common-law principles in deciding questions of government privilege. See Fed. R. Evid. 501; Brief for Respondent at 10–11. By ignoring Rule 501, Jicarilla contends, the United States assumes a contradictory position: rejecting the common law on the issue of disclosure, but using the common law to justify its claim of attorney-client privilege. See Brief for Respondent at 11–12. Furthermore, the Tribe asserts, the United States misapplies the Navajo Nation decisions. See Id. at 29. According to Jicarilla, those decisions were concerned with narrow issues of judicial jurisdiction. See Id. Because jurisdiction is not in question in this case, Jicarilla adds, the Federal Circuit was free to apply common-law trust principles not found in any specific statute or regulation. See Id. at 30.

Is the Government the “Real Client” in this Case?

With regard to the actions of the government attorneys, the United States argues that the government itself, and not the Jicarilla Tribe, must be viewed as the “real client” in this case. See Brief for Petitioner at 13. Citing a number of Supreme Court decisions, the United States asserts that the government’s sovereign duty to manage Indian property makes it the real party in interest, even when the government acts on behalf of Indian tribes. See United States v. Minnesota, 270 U.S. 181, 194 (1926); Brief for Petitioner at 13–14. The United States further notes that no act of Congress expressly designates Indian tribes as the actual clients of government attorneys. See Brief for Petitioner at 21–22. Moreover, in case of need, the United States points out, both tribes and individual Indians are free to retain their own private attorneys, undermining any argument that the government attorneys are beholden to the Jicarilla Tribe. See Id. at 26. The United States also observes that government attorneys are paid from separate government funds, as opposed to funds held in trust for Indian tribes, strengthening the view that government attorneys never serve particular Indian tribes. See Id. at 27–28.

While it concedes that it may not be the “real client” of the government attorneys, Jicarilla contends that its status as a trust beneficiary entitles it to certain information given to the trustee—the United States. See Brief for Respondent at 24–25. Jicarilla notes that the government sought out legal advice from its attorneys to advance the Tribe’s interests, not to promote a government interest. See Id. at 26. As such, Jicarilla asserts, the government is subject to the heightened disclosure requirements that exist in ordinary trustee-beneficiary relationships. See Id. at 27. Addressing professional ethics concerns, Jicarilla rejects the United States’ argument that disclosing the privileged information may place the government attorneys in murky ethical waters. See Id.According to Jicarilla, the Federal Circuit did not aim to establish an attorney-client relationship between the government attorneys and the Tribe, and the court’s decision did not place additional professional obligations upon government attorneys. See Id. Finally, Jicarilla finds no importance in the fact that the government attorneys in this case were paid out of public funds as opposed to the Tribe’s own trust corpus. See Id. The source of the payment, Jicarilla argues, does not change the purpose of the legal advice, which was ultimately sought to help the Jicarilla Tribe, the trust beneficiary. See Id. at 28.

Can the Government Be Likened to an Ordinary Private Trustee of the Tribe?

The United States posits that the government cannot be seen as an ordinary common-law trustee of the Tribe’s fund. See Brief for Petitioner at 35. The government notes that it has management responsibilities for both tribal and individual Indian properties, including over 380,000 Individual Indian Money (IIM) accounts. See Cobell v. Norton, 392 F.3d 461, 463 (D.C. Cir. 2004); Brief for Petitioner at 35. If disclosure were required here on the basis of common-law trust principles, the United States argues, it may be similarly responsible to disclose privileged information for thousands of IIM accounts, potentially contradicting those statutes that specifically limit the government’s ability to furnish information to Indian tribes and individuals. See Brief for Petitioner at 35. In addition, the United States contends that the wide-ranging nature of many government obligations exempts it from the requirements of an ordinary private fiduciary. See Id. at 42. For example, the government points out that it is required to oversee the treatment of endangered wildlife and the use of natural resources on tribal properties, obligations that occasionally create friction between the government and particular tribes. See Id. at 41. This friction, the United States argues, may cause the government and particular tribes to disagree on the best way to manage tribal trust assets. See Id. Thus, the government may occasionally choose to subordinate beneficiary tribal interests, something an ordinary private trustee is not allowed to do. See Id.

In response, Jicarilla argues that, if anything, the government has a lesser claim to the protections of the attorney-client privilege than does a private party. See Brief for Respondent at 12. According to Jicarilla, courts that have considered the relationship between the government and Indian tribes have, like the Federal Circuit, found sufficient similarity to private trusts to justify using the fiduciary exception. See Id. at 16. Jicarilla also notes that, unlike private practitioners, government attorneys owe continuing loyalty to the public at large, making the need for the secretive attorney-client privilege weaker in the government context. See Id. at 14–15. The Tribe adds that disclosure and transparency are especially important when a trustee such as the government is responsible for multiple beneficiaries, several of whom may have competing economic interests. See Id. at 23–24. Furthermore, Jicarilla denies that the elimination of attorney-client privilege in this case will harm the government’s ability to communicate effectively with its attorneys. See Id. at 13. Government confidentiality, Jicarilla asserts, is protected by executive privilege and other distinct doctrines, which, unlike the attorney-client-privilege, are tailored to government functions and unavailable to private persons. See Id.