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Karl A. Racine
Office of the Attorney General for the District of Columbia

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DC Attorney General and US Attorney Reach Agreement; DC Provides Documents From Executive Office of the Mayor in Investigation While Protecting DC's Legal Privileges

Monday, January 13, 2014

Ted Gest
Public Information Officer
[email protected]

WASHINGTON, D.C. -- District of Columbia Attorney General Irvin B. Nathan announced today that under an agreement reached last week, his office has provided to the U.S. Attorney for the District of Columbia all Mayoral documents relating to a 2011 settlement of a civil case involving D.C. Chartered Health Plan, Inc., including any documents sent to or from the Mayor regarding the settlement.  Under the agreement, the U.S. Attorney has agreed  not to contend that this disclosure is a waiver of the District’s Attorney-Client privilege or any other applicable District legal privilege, and the District retains its right to assert all applicable privileges in the event of any future litigation.

Attorney General Nathan stated that “the attorney-client privilege has long been a bedrock of  this country’s legal system, as  recognized by the Supreme Court and  our Court of Appeals. The privilege reflects society’s considered  judgment  that candor and confidentiality within the attorney-client relationship are critical to the rule of law. The privilege extends to federal and, importantly, state and local government decision-makers when they are seeking and obtaining legal advice.”

The Attorney General noted further that the “issue is much larger than this or any one case.  It is important that we set a precedent so that future Mayors and agency officials in the District are ensured the benefit of full candor in their communications with their OAG lawyers when they are seeking legal advice as they carry out the people’s business in a lawful manner.”  

Attorney General Nathan added:  “Time will tell whether these documents reveal anything other than what they appear on their face to be – the proper government conduct of business concerning a civil settlement of litigation with a city contractor.  This much, however, is clear now: by upholding the principle of the District’s right to the attorney-client privilege, we have served the District’s long-term interests.”

Before the agreement announced today, OAG, on behalf of the District, already had provided extensive cooperation with the U.S. Attorney’s investigation, including the production of tens of thousands of documents and responses to dozens of inquiries from federal authorities and many witness interviews. Nearly two months ago, OAG had proposed a number of potential compromises to resolve this controversy. The resulting agreement stemmed from these proposals, as both sides recognized that it would be preferable for the public if the current dispute were amicably resolved without resorting to lengthy litigation over the privilege’s application.  Under the agreement, for additional requests by the U.S. Attorney’s office for documents that OAG believes is privileged, the federal prosecutors have agreed to show OAG representatives certain confidential evidence related to the requests before OAG makes a further assessment as to whether it will produce those additional requested documents.

Attorney General Nathan said: “I am pleased that in the continued spirit of compromise, and to advance the public interest in a prompt resolution of the Chartered investigation while being faithful to our obligations as the District’s lawyers, we have reached an agreement acceptable to both sides.” He commended the OAG negotiation team, led by Ariel Levinson-Waldman, the Senior Counsel to the Attorney General.  

Finally, the Attorney General added that, in accordance with understandings with the U.S. Attorney, the full Agreement is being treated as confidential, and that other than this announcement, the Office of the Attorney General will not have further comment on the Agreement at this time.