121.

Maintenance of Attorney-Client Information

Introduction: In the course of handling civil actions brought against employees in their individual capacities, notes, letters, and memoranda are often generated reflecting the substance of confidential communications between employees and the Justice Department counsel. Under the Attorney General's policy statement on representation of federal employees, this information is entitled to the protection of the attorney-client communication privilege. See 28 C.F.R. Sec. 50.15(a)(3). In order that this privilege be preserved, it shall be the responsibility of each Assistant U.S. Attorney assigned such a case to restrict access of such material to himself/herself, line supervisors and the U.S. Attorney. The following procedures, designed to assure adherence to this policy, only apply to communications with current or former government employees sued in their individual capacity. Records reflecting communications with employees sued only in their official capacity sha ll be placed in the nonrestricted litigation files. For purposes of this policy, the definition of "attorney-client confidential information" is that information which is protected by the attorney-client privilege under applicable law. Contents of Files: In all instances where an attorney is responsible for a case involving the representation of a current or former government employee in his or her individual capacity, the attorney should maintain in the case file only those attorney-client communications which are necessary for the conduct of any pending or possible future litigation. All other privileged material should be destroyed. Open Files: The exterior of every case file that contains attorney-client communications should be clearly marked with the following symbol: INDIV.REP. Each U.S. Attorney should insure that every employee in the office is aware that access to case files so marked is restricted to the case attorney responsible for the case; to employees expressly directed by the case attorney to have access to the file; and to the attorney's supervisors. Closed Files: When a file containing attorney-client communications has been authorized to be closed, the attorney who handled the case shall place all material containing attorney-client communications inside an envelope. The envelope should be sealed and a stamp should be placed over the seal with the following statement: "This file contains privileged attorney-client information. Access is limited to assigned trial attorneys and their supervisors only." The envelope containing the privileged information should then be made a permanent part of the file. This procedure should be repeated if the envelope containing the confidential attorney-client material is ever opened by authorized individuals. Disclosure: Access to all files containing confidential attorney-client material is limited to: Any individual acting on behalf of or with written permission of the client/represented defendant; The attorney assigned to the case; and The immediate supervisors of the attorney responsible for the case and the U.S. Attorney. [cited in USAM 3-13.300]