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10-382 U.S. v. Jicarilla Apache Nation

By: WISCONSIN LAW JOURNAL STAFF//June 13, 2011//

10-382 U.S. v. Jicarilla Apache Nation

By: WISCONSIN LAW JOURNAL STAFF//June 13, 2011//

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United States Supreme Court

CIVIL OPINIONS

Indians

Attorney-client privilege

The fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and the Indian tribes.

In cases applying the fiduciary exception, courts identify the “real client” based on whether the advice was bought by the trust corpus, whether the trustee had reason to seek advice in a personal rather than a fiduciary capacity, and whether the advice could have been intended for any purpose other than to benefit the trust. Riggs, 355 A. 2d, at 711–712. Applying these factors, the Court concludes that the United States does not obtain legal advice as a “mere representative” of the Tribe; nor is the Tribe the “real client” for whom that advice is intended. See id ., at 711. Here, the Government attorneys are paid out of congressional appropriations at no cost to the Tribe. The Government also seeks legal advice in its sovereign capacity rather than as a conventional fiduciary of the Tribe. Because its sovereign interest is distinct from the beneficiaries’ private interests, the Government seeks legal advice in a personal, not a fiduciary, capacity. Moreover, the Government has too many competing legal concerns to allow a case-by-case inquiry into each communication’s purpose. In addition to its duty to the Tribe, the Government may need to comply with other statutory duties, such as environmental and conservation obligations. It may also face conflicting duties to different tribes or individual Indians. It may seek the advice of counsel for guidance in balancing these competing interests or to help determine whether there are conflicting interests at all. For the attorney-client privilege to be effective, it must be predictable. See, e.g., Jaffee v. Redmond , 518 U. S. 1 . The Government will not always be able to predict what considerations qualify as competing interests, especially before receiving counsel’s advice. If the Government were required to identify the specific interests it considered in each communication, its ability to receive confidential legal advice would be substantially compromised. See Upjohn Co. v. United States , 449 U. S. 383.

590 F. 3d 1305, reversed and remanded.

10-382 U.S. v. Jicarilla Apache Nation

Alito, J.; Ginsburg, J., concurring; Sotomayor, J., dissenting.

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