July 19, 1995 - Part 2
July 19, 1995 - Part 2
(11:10:42) Senator BOXER. Thank you. I yield my remaining time to counsel. Mr. BEN-VENISTE. Thank you, Senator Boxer. Mr. Hubbell, I'd like to ask you about a comment contained in a question put to you by Senator Shelby. He asked you whether Mr. Nussbaum and his involvement in determining the procedures to be used in searching for the note in Mr. Foster's office was a situation akin to the fox guarding the hen house. Now, let me ask you, sir, in connection with the suicide of Vincent Foster, how, in your mind, would Mr. Nussbaum be considered the fox? Mr. HUBBELL. I don't consider Mr. Nussbaum the fox. I think, to elaborate, Senator Shelby, the files that would have been in Vince's office were the files of the White House Counsel. They were Bernie's files as well, except to the extent of Vince's personal files. It's like a law firm. The law firm's files belong to the firm, not to any one individual in the White House. Mr. BEN-VENISTE. Now, with respect to Mr. HUBBELL. I was trying to talk about that. Senator SHELBY. I wonder if counsel would yield for 2 seconds. Mr. BEN-VENISTE. Certainly, Senator. Senator SHELBY. Maybe he wasn't the fox watching the hen house. Maybe he was the tiger guarding the door, at least that was the perception that a lot of people had of him. They were intimidated by him. Mr. BEN-VENISTE, Let me ask you about the concept of the tiger in connection with attorneys and sensitive information they re-, ceive. Are you aware of any ethical restrictions on attorneys from disclosing confidential information provided by a client? put aside whether it's the President of the United States who's the client. Mr. HUBBELL. There are ethical restrictions, and the privilege is the client's, not the attorney's, to waive. Mr. BEN-VENISTE, What are the consequences for an attorney who might, without the client's permission, disclose confidential information, if you know? 103 Mr. HUBBELL. I presume back in Arkansas that attorney could be disciplined by the Bar Association. Mr. BEN-VENISTE. Up to the penalty of being disbarred, losing his right to practice law if it were egregious? Mr. HUBBELL. If it were egregious, yes. Mr. BEN-VENISTE. Now, Senator Hatch asked you some questions about the attorney-client privilege and asked whether that privilege was limited to communications from the client. I ask you whether there is such a thing as the work product privilege associated with the attorney-client privilege? Mr. HUBBELL. Yes, there is a work product privilege in connection with litigation, yes. Mr. BEN-VENISTE. What does that relate to? Mr. HUBBELL. Work product produced by the lawyer in connection with the client's business. Mr. BEN-VENISTE. You've indicated, I think, with respect to attorney- client privilege that one of the ways that that privilege is normally asserted is in connection with a litigation. Let me ask you, if there is no litigation pending and some third party wishes to see the attorney-client privileged materials in an attorney's office, does that mean that the attorney-client privilege doesn't hold? Mr. HUBBELL. I don't believe so. The analogy I try to make to this circumstance is if the Justice Department or the FBI were to try to come into a law firm and ask for clients' records or the law firm's records, You would be in a position of having to still claim the privilege for your client unless it was waived. I believe that occurs a lot of times within law firms. Mr. BEN-VENISTE, I see that my time is up now and there may be some more questions along these lines, if I may, a bit later. Thank you, sir. Thank you, Mr. Chairman. The CHAIRMAN. Thank you. Senator Hatch, Senator HATCH. Thank you, Senator D'Amato. Mr. Hubbell, again, let's return to the questions exploring attorney-client privilege, because I think it's good to get these out of the way. You stated that attorney-client privilege, as a general rule, applies when there is one, a communication that, two, is between the attorney and the client. Now, let me just continue along that line. I asked you, then, if because of the fact that Mr. Foster was a Government employee, and while acting as Deputy White House Counsel, he could not and should not have acted as President Clinton's personal attorney, and you weren't sure whether he could or couldn't, if I recall correctly?