(Note: In the following communication to the Senate's Whitewater Committee, Williams & Connolly, attorneys for President and Mrs. Clinton, assert attorney-client privilege regarding the notes of a meeting held in the Williams & Connolly offices regarding "Whitewater matters" in November 1993. Clinton's counsel also asserts a common interest and work product privilege. There seems to be reluctance on Mr. Clinton's counsel's part to assert privilege: "For a President, an assertion of privilege is extremely difficult . Such a claim, no matter how legitimate, inevitably leads partisan opponents to cry "stonewall." That is a predictable and irresistibly convenient political ploy. To date, the Special Committee, like the Independent Counsel, the RTC, and the House of Representatives, has received extraordinary cooperation from the President in its investigative efforts. But now, confronted with an increasingly popular President and public disinterest in Whitewater, the Special Committee majority is pushing its demands for access unreasonably into the privileged It relationship with personal counsel. In light of this effort, the easiest course would be simply to disclose one more document, to join the tens of thousands of confidential White House and personal documents already made available to the Senate. But this time the demand of the Special Committee majority, and its claim of "stonewalling are deeply unfair and, under the circumstances, require that a line be drawn to protect an important legal right: the President and Mrs. Clinton's privilege to consult confidentially with their private counsel, and that counsel's need to work with White House lawyers in order .to provide informed advice. It is the appropriate line to draw for at least two reasons: (1) because the right to consult in confidence with one's own lawyer is a right every citizen enjoys and respects, and (2) because the information the committee says it needs is otherwise available to it.') SUBMISSION OF WILLIAMS & CONNOLLY TO THE SPECIAL SENATE COMMITTEE REGARDING WHITEWATER AND RELATED MATTERS I. INTRODUCTION. On December 8, 1995, the Special Committee to Investigate Whitewater Development Corporation and Related Matters served a subpoena on William H. Kennedy, III, former Assistant White House Counsel, for documents in his possession relating to a meeting he attended on November 5, 1993, at the law offices of Williams & Connolly, personal counsel to the President and Mrs. Clinton on so-called "Whitewater" matters. Mr. Kennedy has respectfully declined to comply with this subpoena on privilege grounds. In the transmittal letter accompanying the subpoena, the Chairman invited Mr. Kennedy "to submit . . . a legal memorandum which sets forth the basis for your refusal to comply with the subpoena." Because Mr. Kennedy's response to the subpoena is pursuant to the instructions of this law firm and of } the White House Counsel's Office, both entities are submitting separate memoranda stating the reasons why privilege applies to the documents sought by this subpoena. Two points cannot be overemphasized: first, the issue here is not the subpoenaed notes. The issue is the confidentially of the President and Mrs. Clinton's relationship with their personal lawyer. If they make the notes public, partisan investigators will next claim that they have waived the confidentiality of that entire relationship. That risk alone creates the need to maintain the confidentiality of the notes. Second, a President must be able to receive confidential legal advice about any personal matter including personal matters that might affect his public duties. The President and the Presidency, although distinct conceptually, are at times inseparable practically. On matters of common interest, the lawyers for each -- White House counsel and personal counsel -- must be able to talk frankly in confidence, and delineate areas of responsibility, just as the President must be able to talk in confidence to both. Without such exchanges, neither lawyer could obtain the full picture necessary to offer sound advice, and neither could be effective in his or her role. The President could not receive the legal advice he needs to conduct his public and personal business. Moreover, the last decade has, for better or for worse, been a time when public policy differences have been improperly referred to the criminal process, rather than resolved by the give and take of political debate, when motives are impugned and the specter of wrongdoing is raised at every turn, and when bareknuckle tactics rather than civility are the order of the day./1/ Today, when politics is too often practiced as a blood sport, a President, like any other elected official and like any citizen, deserves the full right to legal counsel, for he may be beset by overzealous or partisan investigators whose motive is not simply to uncover the truth but rather to do him political damage. These simple points alone compel the decision to resist the Special Committee's subpoena. * * * For the reasons set forth in this memorandum, the November 5, 1993, meeting is plainly protected by both the attorney-client privilege and the attorney work-product doctrine This was a meeting of present and past personal counsel for the President and Mrs. Clinton and of attorneys doing legal work in the White House. The purpose of the meeting was to brief new personal counsel and members of the White House Counsel's Office on "Whitewater" matters and to agree upon an appropriate division of responsibility for Whitewater" legal duties between personal and White House counsel. Indeed, as the following legal analysis demonstrates, the meeting is so clearly protected in so many different ways that the Special Committee's attempt to invade the privileged relationship is puzzling, particularly in view of the numerous permissible ways in which the Special Committee may gather relevant information concerning the meeting, which the Special Committee's counsel have not even attempted to date. The President and Mrs. Clinton have afforded comprehensive and unprecedented cooperation in every investigation into "Whitewater" matters. They have voluntarily produced tens of thousands of pages of documents to this Committee, the RTC, and the Independent Counsel. They have each testified three times under oath for the Independent Counsel, they have answered voluminous interrogatories for the RTC, and Mrs. Clinton has provided information under oath to both the FDIC and this Committee. For this Committee, however, it appears that no degree of cooperation is sufficient. As the hearings drag beyond their thirtieth day and face low ratings and flagging public interest, the Committee majority is plainly attempting to manufacture a controversy so that it can allege (finally) a failure of cooperation by the Clintons. It appears that the majority has made a conscious and concerted decision to spark this battle over the exercise of a privilege which, however well established as a matter of law, will provide a specious occasion to cry "Coverup!" Whatever partisan and political advantage there may be to this grandstanding, as a matter of law this unprecedented attempt is wholly devoid of merit. II. BACKGROUND TO THE NOVEMBER 5, 1993 MEETING. Starting on October 31, 1993, and in the days immediately following, there was a torrent of press discussion of the many matters now known collectively as "Whitewater." A review of these press accounts establishes that, by the date of the meeting, there had been unprecedented public disclosure of the on-going federal investigations. It was clear by November 5 that there would be an appropriate role for both personal and White House counsel. On October 31, 1993, The Washington Post reported that 4 the Resolution Trust Corporation had 'asked federal prosecutors in Little Rock to open a criminal investigation into whether a failed Arkansas savings and loan [Madison Guaranty] used depositors' funds during the mid-80s to benefit local politicians, including a reelection campaign of then-governor Bill Clinton." Susan Schmidt, U.S. Is Asked to Probe Failed Arkansas S&L, The Washington Post, at Al. Citing "government sources familiar with the probe," the Post article presented a detailed picture of the RTC referrals. Id. 2/ It reported that the RTC had referred About 10 matters arising from transactions at" Madison to United States Attorney Paula Casey approximately three weeks earlier, and that the referrals included "questions about whether a series of checks written on Madison accounts ended up in Clinton's campaign fund." Id. 3/ The Washington Post story was only the first of a series of articles in the Post and other newspapers disclosing in an extraordinary way reams of details about on-going federal investigative efforts. On November 1, 1993, The Wall Street Journal confirmed the existence of an investigation into Madison Guaranty and publicized a second parallel federal investigation by federal prosecutors and the Small Business Administration regarding a former judge, David Hale, who was involved in the collapse of Capital Management Services, Inc., an SBA-funded small business investment company (SBIC). Bruce Ingersoll and Paul Barrett, U.S. Investigating S&L Chiefs '85 Check to Clinton. SBA-Backed Loan to Friend, The Wall Street Journal, at Ad. The Journal reported an investigation of alleged defrauding of the SBA by Hale's company, which it said had lent money to a firm owned by Mr. McDougal's wife, Susan. The article also stated that Mr. Hale had attempted to "stave off his indictments by providing investigators with information about Madison Guaranty's Possible misuse of funds for political purposes." Id. News of the federal investigations also carried by newspapers abroad. Martin Walker, Clintons' Associate to be Investigated, The Guardian, at 11. On November 2, 1993, both The Washington Post and The New York Times carried stories providing additional facts about the federal investigations. The Post reported that the FBI had raided the offices of Mr. Hales firm the previous summer and had "seized documents that included records of a $300,000 loan to a public relations company headed by Susan McDougal, a partner in Whitewater." Michael Isikoff and Howard Schneider, Clintons' Former Real Estate Firm Probed, The Washington Post, at A1. The New York Times described an alleged close business and professional relationship between then-Governor Clinton and Mr. McDougal and reported that RTC investigators were interested in a potential link between campaign contributions made by Madison Guaranty to then-Governor Clinton and efforts by Madison to get state bank regulators to approve a stock plan. Jeff Gerth and Stephen Engelberg, U.S. Investigating Clinton's Links to Arkansas S.& L., The New York Times, at A20. 4/ The stories continued the next day. The Washington Post ran an article on November 3, 1993, detailing what it described as a possible conflict of interest in the Rose Law Firm's representation of the FDIC, which had taken over Madison Guaranty, an institution which, the Post reported, the law firm had previously represented in 1985 when the S & L sought state regulatory approval for a plan to raise new capital. The representation was in a lawsuit against the S&L's former accounting firm. Susan Schmidt, Regulators Say They Were Unaware of Clinton Law Firm's S&L Ties, The Washington Post, at A4./5 , The Arkansas Democrat Gazette reported that a July 1993 FBI raid on Mr. Hale's office disclosed documents detailing a $300,000 loan to Susan McDougal, some of the proceeds of which "were used to finance a large purchase of rural property from the International Paper Co. by Whitewater in October 1986." Noel Oman, "Old Story " Clinton Says of Links to McDougal, Arkansas Democrat Gazette, at 11A. The article additionally recounted that Hale was indicted that September on charges that he and two colleagues "defrauded the SEA by illegally funneling $800,000 in and out of Capital Management to secure a $900,000 SBA loan." Richard Keil, Clintons Clear of S&L Inquiry White House Insists, Arkansas Democrat Gazette, at 13A. Additional stories were published November 4, 1993, the day before the meeting among counsel at Williams & Connolly. The Washington Post reported in detail on federal investigations into Arkansas Governor Jim Guy Tucker's relationships with Madison arc Capital Management Services. Howard Schneider, Governor Tucker's Finances Become Probe Focus, The Washington Post, at A3. The Washington Times reported that the federal inquiry into Madison a loans included an inquiry into an alleged "$35,000 loan to Mr. Clinton to help settle 1984 campaign debts." Jerry Seper, What Were the Clinton Stakes in Land Scheme?, The Washington Times, at ' Al. It further stated that federal investigators were looking into what it described as "$2000 a month in legal fees from Mr. J McDougal [that Mrs. Clinton received: to represent Madison Guaranty." Id. at A20.6/ Finally, on November 5, 1993, the day of the meeting, The Washington Times published another lengthy and detailed account of the "federal fraud investigation" of Mr. McDougal. Jerry Seper, Probe of S&L Chief Touches on Hillary's Legal Fee, The Washington Times, at Al. The article stated that investigators were looking into a $30,000 payment made to Mrs. Clinton for legal work over a 15-month period and included the allegation that Mr. Clinton and Mr. McDougal Impersonally agreed to the payments" and that Mr. Clinton Unpicked up the checks." Id. The article further claimed that "the probe also is aimed at determining if the monthly retainer was paid to Mrs. Clinton through a secret bank account." Id.2 In short, by the day of the meeting at Williams & Connolly, the details of the RTC referral and investigations by the U.S. Attorney and the SBA had been extensively publicized, and many of the allegations, facts, and issues surrounding the broadly defined White water matter were well known. The torrent of unusually detailed reporting about the RTC referral and the federal investigations in the week leading up to the November 5th meetings was vastly more specific than any information conveyed by the RTC to the Treasury Department and the White House in the September and October 1993 "Treasury/White House contacts" meetings, which the Senate Banking Committee explored in the summer of 1994. See Appendix A. Given the thorough airing of the RTC referral and the federal investigations in the press summarized above, whatever limited confidential information concerning the RTC referral may have been given to Treasury or the White House had been published in the press by the time of the Williams & Connolly meeting III. THE MEETING AND WHO ATTENDED IT. The November 5 meeting occurred after the avalanche of publicity described in the previous section, and it had a number of purposes: to provide new private counsel with a briefing about "Whitewater issues from counsel for the Clintons who had been involved with those matters, to brief the White House Counsel's office and new personal counsel on the knowledge of James M. Lyons, personal attorney for the Clintons who had conducted an investigation of Whitewater Development Company in the 1992 Presidential Campaign, to analyze the pending issues, and, finally, to discuss a division of labor between personal and White House counsel for handling future Whitewater issues. All of these purposes served the larger purpose of providing legal advice to the President on the conduct of his public and private business. The meeting was set up by David E. Kendall with Bernard Nussbaum, White House Counsel. It was held at Kendall's law firm, lasted more than two hours, and was limited to pass and present personal lawyers for the President and Mrs. Clinton and lawyers in the White House Counsel's Office doing legal work on the emerging Whitewater matters. Communications at the meeting were held in strict confidence. Seven lawyers attended. Mr. Kendall, a partner at the Washington, D.C., law firm of Williams & Connolly, had been retained to represent the Clintons with respect to Whitewater matters the day before, on November 4, 1993. Stephen Engstrom, a partner at the Little Rock law firm of Wilson, Engstrom, Corum, Dudley & Coulter, had traveled to Washington, D.C., to attend the meeting. He had been retained to serve as local counsel for the Clintons a few days prior to the meeting. 9/ Also present were three attorneys from the White House Counsel's Office: White House Counsel Bernard Nussbaum, Associate White House Counsel William H. Kennedy, III, and Associate White House Counsel Neil Eggleston. Mr. Kennedy had also represented the Clintons in the 1990-1991 period, when he undertook an investigation of the status of the Clintons' investment in Whitewater Development Company. This representation had continued in 1992, when Mr. Kennedy had advised the Clinton Campaign about the Whitewater investment. He then represented the President in his official capacity when he joined the White House Counsel's Office in 1993. James M. Lyons, Esq., a partner in the Denver, Colorado, law firm of Rothgerber, Appel, Powers & Johnson, had also traveled to Washington, D.C., to attend the meeting. During the 1992 Presidential campaign, he had served as personal counsel to the Clintons with respect to a number of different matters, and had undertaken to do an extensive review of the Whitewater investment, with the Denver forensic accounting firm of Batten, McCarthy & Associates, Inc. Mr. Lyons continued to represent the Clintons personally in November 1993. Finally, Bruce Lindsey, Esq., a former law partner of President Clinton's, a former counsel both to then-Governor Clinton personally and his 1990 and 1992 political campaigns, and White House personnel director in November 1993, attended the meeting. Although not part of the White House Counsel's Office, be Mr. Lindsey also had done legal work for the Office of the President analyzing various "Whitewater" issues as they emerged in the fall of 1993 and working through counsel in Arkansas to research state law legal issues. He continued in that role after the November 5 meeting. Because the purpose of the meeting was to learn the facts, develop legal analyses, and apportion responsibilities in order to enable both personal and White House counsel to provide competent, appropriate, and effective legal advice and services, the meeting was plainly privileged. IV. THE DISCUSSION THAT TOOK PLACE AMONG THE ATTORNEYS PRESENT AT TEE NOVEMBER 5, 1993 MEETING, AND ALL DOCUMENTS REFLECTING THAT DISCUSSION, ARE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE, THE COMMON-INTEREST PRIVILEGE, AND THE WORK-PRODUCT DOCTRINE. A. The Meeting Was Protected by the Attorney-Client Privilege . The attorney-client privilege, which originated in Roman and canon law, "is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citing 8 J. Wigmore, Evidence  2290 (McNaughton rev. 1961)). The purpose of the privilege is "to encourage full and frank communications between attorneys and their clients," and Bathe privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Upjohn, 449 U.S. at 389-91. 10/ The November 5 meeting at Williams & Connolly falls squarely within this privilege. Seven lawyers, all personal counsel for President and Mrs. Clinton or lawyers in the White House, attended the meeting. Each was present in his capacity as a lawyer, and the President and Mrs. Clinton understood themselves to have a privileged relationship with each lawyer. The meeting was held for the purpose of sharing information as necessary and appropriate to provide legal advice, analyzing the information, and dividing responsibility among the lawyers for handling Whitewater-related matters on behalf of the Clintons. This lawyers' meeting was held with the expectation of confidentiality, and it is privileged. 1. The Attorney-Client Privilege. Certain basic and indisputable rules about the attorney-client privilege establish this point. First, the attorney-client privilege@ protects confidential communications between an attorney and his or her client "made for the purpose of furnishing or obtaining professional legal advice and assistance." In re LTV Securities Litigation, 89 F.R.D. 595, 600 (N.D. Tex. 1981). The privilege applies in both directions: to communications from the client to the attorney, and to communications from the attorney to the client. Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833 (1956); Green v. IRS, 556 F. Supp. 79, 85 (N.D. Ind. 1982), afford without op., 734 F.2d 18 (7th Cir. 1984). It applies with equal force to conversations and correspondence among a client's attorneys, whether or not the client is present during the conversation or receives a copy of the correspondence. 11/ Second, what is protected by the privilege is the communications themselves within the confidential setting. "The protection of the privilege extends only to communications and no to facts." Upjohn, 449 U.S. at 395 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)), and investigators are free to question individuals who communicate with counsel about unprivileged facts known to them. But arguments that the information may more conveniently be obtained from the privileged communication are unavailing because "such considerations of convenience do not overcome the policies served by the attorney-client privilege." Id. at 396. For this reason, even if the information discussed is in the public domain, the fact of communicating about it with or among counsel is privileged. In Lehman v. Superior Court, 81 Cal. App. 3d 90 (1978), for example, the court explained, "if the client discloses certain facts to a third person and subsequently advises his lawyer of those same facts in the form of a confidential communication, there has been no waiver since, obviously, the client has not disclosed to the third person the confidential communication to the attorney, l.e., had not disclosed that certain information had been communicated to the attorney." Id. at 97. And by necessity, the attorney-client privilege extends as well to written materials reflecting the substance of an attorney-client communication. 12/ Third, the attorney-client privilege also covers communications between agents of a client and the client's attorney, again, as long as the communication was intended to be confidential. "[I]f the purpose of the communication is to facilitate the rendering of legal services by the attorney, the privilege may also cover communications between the client and his attorneys representative, between the client's representative and the attorney, and between the attorney and his representative.' Golden Trade v. Lee Ansarel Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992). 13/ Courts define the term "agent" broadly to encompass a range of individuals, from expert consultants to relatives to insurance agents, whose presence is necessary to the purpose of the meeting and to the rendering of advice. See, e.g:, Kevlick v. Goldstein, 724 F.2d 844, 849 (lst Cir. 1984) (client's father); United States v. Biros, 459 F.2d 639, 643 (1st Cir.) (cllent's father), cert. denied sub nom., Raimondi v. United States, 409 U.S. 847 (1972); Benedict v. Amaducci, No. 92 Civ 5239 (KMW), 1995 U.S. Dist. LEXIS 573, *3-*4 (S.D.N.Y. Jan. 18, 1995) (consultant); Foseco Int'l, Ltd. v. Fireline. Inc., 546 F. Supp. 22, 25 (N.D. Ohio 1982) (patent agent); Miller v. Haulmark Transcort Svstems, 104 F.R.D. 442, 445 i (E.D. Pa. 1984) (insurance agent); Harkobusic v. General American Transc. Corp., 31 F.R.D. 264, 265 (W.D. Pa. 1962) (brother-in-law). Nor must the client be present at a meeting between his agents and his lawyer for the communications during the meeting to be protected by the attorney-client privilege. Thus, for example, in Foseco International Ltd. v. Firelire, Inc., 546 F. Supp. 22 (N.D. Ohio 1982), the court held that a meeting between the plaintiff's patent agent and the plaintiff's lawyer fell ! within the scope of the attorney-client privilege, even though the Plaintiff was not present at the meeting. As the court explained, "these communications are in essence communications between the client and the client's attorney. The British patent agent acted at the direction and control of the plaintiff. Further, through the agency of its patent agent, the plaintiff sought from the U.S. patent counsel legal advice and assistance concerning a U.S. patent application proceeding. Had the communications been made between the plaintiff and its U.S. counsel, the privilege would have attached. The Court finds that, given the purpose of the attorney-client privilege to encourage full and frank communication between attorneys and their clients, the communications made between [plaintiff], through its patent agent, and its U.S. patent counsel are privileged. The communications involved in this case were made in furtherance of the rendition of professional legal services to the client and were reasonably necessary for adequate legal assistance. Id. at 26.MV Fourth, the determination whether there exists an attorney-client relationship depends on the understanding of the client. "The professional relationship for purposes of the privilege hinges upon the belief that one is consulting a lawyer and his intention to seek legal advice. Wylie v. Marley Co., 891 F.2d 1463 1471 (10th Cir. 1989). Accordingly, the attorney client privilege applies to confidential communications between an individual and a person he reasonably believes to be his attorney, even if the attorney ultimately elects not to represent the client, and even if the attorney is not a member of the bar. /15 Finally, it is important to note that the attorney-client privilege affords absolute protection to privileged communications. As the Ninth Circuit explained in Admiral Insurance Co. v. United States District Court, 881 F.2d 1486 (9th Cir. 1989), "the principal difference between the attorney-client privilege and the work-product doctrine, in terms of the protections each provides, is that the privilege cannot be overcome by a showing of need, whereas a showing of need may Justify discovery Of a! attorney S work product. Id. at 1494 (quotation omitted). The attorney-client privilege cannot be vitiated by a claim that the information sought is unavailable from any other source. Id. at 1495. "Such an exception would either destroy the privilege or render it so tenuous and uncertain that it would be Little better than no privilege at all.'' Id. (quotation omitted)." 2. The Attorney-Client Privilege Covers the November 5, 1993 Meeting. a. Meeting Among Counsel. With these basic principles in mind, the analysis is straightforward and the answer clear. Every person present at the November 5, 1993 meeting was a lawyer whom the President and Mrs. Clinton understood to be representing them in either their personal or official capacities. Messrs. Kendall, Engstrom and Lyons were private attorneys acting as personal legal counsel for the Clintons at the time of the meeting. Messrs. Kennedy, Eggleston, and Nussbaum worked in the Office of White House Counsel and represented the Office of the President, including the President and First Lady in their official capacities, at that time. Mr. Lindsey was an attorney who had represented Mr. Clinton in the past; as of November 1993 he was working in the White House Personnel Office and also assisting the President (in his official capacity) on Whitewater, gathering information, determining how to respond to press calls, and providing legal advice and analysis to the Office of the President concerning matters occurring in Arkansas before 1993. Every attorney present at the November 5, 1993 meeting intended that the discussion that took place remain confidential The President and Mrs. Clinton also expected, and fully intended, that the conversation that took place among the counsel at the meeting remain privileged and confidential Indeed, attendance at the meeting was limited to these lawyers for this very reason. The discussion at the meeting concerned information and analysis necessary to the ability of private and White House counsel to represent the Clintons effectively in connection with Whitewater-related matters. The meeting facilitated the rendering of legal services to the Clintons by both private and White House counsel, and the communications that took place during the meeting without question "were made in furtherance or { the rendition of professional legal services to the client and were reasonably necessary for adequate legal assistance." Foseco, 546 F. Supp. at 26. Since the November 5 meeting among counsel for the President and Mrs. Clinton was held for the purpose of enabling counsel to provide legal advice to them, the conversation that took place falls at the heart of the attorney-client privilege. See Natta, 418 F.2d at 637; Chicaao Lawverst Committee, No. 76C1982, slip. op. (N.D. Ill. Apr. 27, 1981); Green, 556 F. Supp. i at 85; Foseco, 546 F. Supp. at 25; In re D.H. Overmyer Telecasting Co., 470 F. Supp. 1250, 1254-55 (S.D.N.Y. 1979); Burlington Indus., 65 F.R.D. at 36. Notes taken by counsel during the meeting, which reflect the substance of the discussion ; during the meeting, are necessarily protected as well. See Natta, 418 F.2d at 637 n.3; Green, 556 F. Supp. at 85. b. Meeting Among Client's Agents and Counsel. Mr. Lindsey was acting as the Clintons' lawyer at the meeting; but even if he had not been, as some on the Special Committee have suggested, his presence would in no respect have vitiated the attorney-client privilege. Mr. Lindsey was not only a lawyer but also a counselor to and agent of the President. Mr. Lindsey imparted information required by both personal and White House counsel in order to effectively represent the President, and he received information and advice necessary for him to assist the Office of the President in its functioning. It is well-settled that agents of a client may meet with counsel in furtherance of the attorney-client relationship. See Foseco, 546 F. Supp. at 25; Benedict, 1995 U.S. Dist. LEXIS at *3-4; Farmaceutisk Laboratorium Ferrina, 864 F. Supp. at 1274; American Colloid Co., 1993 U.S. Dist LEXIS 7619 at *2-3; Carte Blanche, 130 F.R.D. at 33-34. Because Mr. Lindsey participated in the meeting with the expectation (shared by all present) that the discussion would remain confidential, and because he was able to provide information and analysis essential to the purpose of the meeting, his presence was completely consistent with the privilege. Under this scenario as well, the meeting was plainly privileged. B. The 1993 Meeting Was Protected by the "Common Interest" Privilege. 1. The Common Interest Privilege. The meeting was also protected by the "common interest" privilege, which enables counsel for clients with a common interest "to exchange privileged communications and attorney work product in order to adequately prepare a defense without waiving either privilege." 16/ The privilege encompasses notes and memoranda of statements made at meetings among counsel and their clients with a common interest, as well as the statements themselves. In re Grand Jury Subpoena Dated Nov. 16 1974, 406 F. Supp. 381, 384-94 (S.D.N.Y. 1975). The rationale for this well-accepted privilege is readily apparent: Whether an action is ongoing or contemplated, whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims. In re Grand Jury Subpoenas, 89-3 & 89-4, 902 F.2d 244, 249 (4th Cir. 1990). See also 2 Stephen A. Saltzberg, et al., Federal Rules of Evidence Manual 599 (6th ed. 1994) ('Saltzberg") ("In many cases it is necessary for clients to pool information in order to obtain effective representation. So, to encourage information-pooling, the common interest rule treats all involved attorneys and clients as a single attorney-client unit, at least insofar as a common interest is pursued.") Thus, the common interest privilege may be asserted with respect to communications among counsel for different parties if "(1) the disclosure is made due to actual or anticipated litigation or other adversarial proceedings; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties." 17/ If these circumstances are present, the communications are protected. Indeed, the privilege covers communications not only among counsel for clients with common interests but also between an individual and an attorney for a different party with a common interest. 18/ Of course, no two individuals or entities' interests will be totally congruent, and it is not necessary for every party's interest to be identical for the common interest privilege to apply; rather, the parties must have a "common purpose." United States v. McPartlin, 595 F.2d 1321, 1336-37 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1979). The question my of whether the parties share a 'common interest' "must be evaluated as of the time that the confidential information is disclosed." Holland, 885 F. Supp. at 6. 2. The Common-Interest Privilege Covers the November 5, 1993 Meeting All of the elements necessary for the proper assertion of a common interest privilege were present during the November 1993 meeting at Williams & Connolly. All of the attorneys present intended that their conversation remain confidential. As 4 a result of the reports regarding RTC referrals, all of the attorneys anticipated the possibility of adversarial proceedings at the time the meeting took place. Finally, all counsel present represented clients with common interests and purposes -- i.e., the President and Mrs. Clinton in their official and personal capacities. 19/ As the submission of the White House establishes, it is critical for the lawyers in the White House to coordinate and consult with private counsel for the President and First Lady in order to fulfill their professional obligations. It is equally essential for personal counsel to talk with White House lawyers, in order to fully understand the facts and circumstances pertinent to their representation. It cannot be disputed that the President and the Presidency have a common interest; while it is conceivable that that interest could diverge --indeed, that is one reason for separate official and personal counsel -- the possibility of a future divergence in no respect undermines the privilege. And it is settled that private and government counsel may share a common interest. In United States v. American Tel. & N Tel. Co., 642 F.2d 1285, 1300-1301 (D.C. Cir. 1980), for example, the court applied the "common interest" privilege to materials shared between a private company, MCI, at the government, and held that MCI did not waive the work-product privilege by sharing documents with the government in aid of a common purpose. Thus, the common interest privilege is applicable to the November 5, 1993, meeting and protects from disclosure the substance of the 4 communications that took place during the meeting, as well as notes and other documents reflecting the substance of those communications. And again, even if Mr. Lindsey had not been acting in { his capacity as counsel for the President at the November 5, 1993 1 meeting, his presence at the meeting would not vitiate the common interest privilege. Just as an agent's presence at a meeting with counsel does not void the privilege, see McPartlin, 595 F.2d | at 1336, the presence of an appropriate agent at a joint defense meeting would not undermine the applicability of the privilege. 20/ C. Documents Reflecting the Discussion that Took Place at the November 5, 1993 Meeting Are Protected by the Work-Product Doctrine. The subpoenaed notes are also protected separately under the work product doctrine. 1. The Work Product Doctrine. "The work product doctrine is an independent source of immunity from discovery, separate and distinct from the attorney-client privilege." In re Grand Jury, 106 F.R.D. 255, 257 (D.N.R. 1985). It is "broader than the attorney-client privilege; it protects materials prepared by the attorney, whether or not disclosed to the client, and it protects material prepared by agents for the attorney." In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979) (citations omitted). Unlike the attorney-client privilege, which "is not limited to communications made in the context of litigation, or even a specific dispute," Coastal States Gas Comm. v. Department of Energy, 617 F. 2d 854, 862 (D . C. Cir. 1980) ,21/ the work- product doctrine "protects the work of the attorney done in preparation for litigation In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). However, litigation need only be contemplated at the time the work is performed for the doctrine to apply, see Holland, 885 F. Supp. at 7, and the term "litigation@ is defined broadly to encompass the defense of administrative and other federal investigations . 22/ As the Supreme Court observed in Hickman v. Taylor, 329 U.S. 495 (1947), the work-product doctrine is critical to a lawyer's ability to render professional services to his client: "it is essential that a lawyer work with a certain | degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation It of a client's case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories { and plan his strategy without undue and needless ! interference. . . . This work is reflected of course, be in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways . . . . Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore I inviolate, would not be his own. Inefficiency, | unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Id. at 510-11. Although "factual" work-product may be discoverable upon a showing of substantial need for the information sought, the protection afforded to "opinion" work-product -- which reflects counsel's subjective beliefs, impressions, and strategies regarding a case -- is nearly absolute. As the D.C. Circuit explained in In re Sealed Case, 676 F.2d 793, 809-10 (D.C. Cir. 1982), "to the extent that work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification." Accord Upjohn, 449 U.S. at 401 (opinion work product "cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship"). 2. Notes Counsel During the Meeting Are Protected by the Work Product Doctrine. The subpoenaed notes fall directly within this protection. In addition to reflecting the substance of communications at the meeting, the notes Mr. Kennedy took during the November 5, 1993 meeting also reflect the thoughts, impressions, and strategies of the lawyers present. Each lawyer at the meeting brought different knowledge and expertise, each was there because of a common interest, and the questions asked, analyses offered, and conclusions reached all reflected the particular focus and input of these particular lawyers. That is the core of work product, and the notes are squarely protected from disclosure by the opinion prong of work-product doctrine as 2 well as the attorney-client privilege. They are, in short, "doubly non-discoverable." MCI, 124 F.R.D. at 687. V. THE PRIVILEGE SHOULD BE HONORED HERE. For a President, an assertion of privilege is extremely difficult . Such a claim, no matter how legitimate, inevitably leads partisan opponents to cry "stonewall." That is a predictable and irresistibly convenient political ploy. To date, the Special Committee, like the Independent Counsel, the RTC, and the House of Representatives, has received extraordinary cooperation from the President in its investigative efforts. But now, confronted with an increasingly popular President and public disinterest in Whitewater, the Special Committee majority is pushing its demands for access unreasonably into the privileged It relationship with personal counsel. In light of this effort, the easiest course would be simply to disclose one more document, to join the tens of thousands of confidential White House and personal documents already made available to the Senate. But this time the demand of the Special Committee majority, and its claim of "stonewalling are deeply unfair and, under the circumstances, require that a line be drawn to protect an important legal right: the President and Mrs. Clinton's privilege to consult confidentially with their private counsel, and that counsel's need to work with White House lawyers in order .to provide informed advice. It is the appropriate line to draw for at least two reasons: (1) because the right to consult in confidence with one's own lawyer is a right every citizen enjoys and respects, and (2) because the information the committee says it needs is otherwise available to it. (l) Regarding the right to consult with counsel, as stake here is the confidentiality of the Clintons on-going legal representation. As every lawyer well knows, counsel must be scrupulous not to allow even the smallest intrusion into the attorney-client relationship. Once there is any such intrusion, no matter if only a single disclosed document, adversaries can be counted upon to demand more. They would argue that there has been a waiver of the privilege with respect to all communications on the same subject matter and with the same counsel. There can be no doubt that the various investigators would do just that, and a court would have to decide, ultimately, the scope of the waiver, if any. Thus, any disclosure of communications, like the subpoenaed notes, that are a part of that personal legal relationship, no matter how narrow, necessarily places the Clintons' basic right and ability to talk to their lawyers in confidence at unacceptable risk. A lawyer and a client who believe a communication was privileged must protect it if they are to protect their relationship. (2) Regarding the need for information, the Special Committee majority has failed to state a credible need for the information in the document. The majority has refused to avail itself of testimony available to it, by which it could try to obtain the information it purports to need without the unprecedented incursion on the lawyer-client relationship that it now demands. Its refusal to do so can only be attributed to its preference for the rhetoric of a fight. The Committee cites a need for the document in order to know what confidential governmental information, if any, was transmitted to the Clintons' personal lawyers at that meeting, and what confidential information, if any, was collected in light of that meeting. There are numerous flaws in this argument. The very premise of the inquiry is wrong. Any so-called confidential governmental information obtained prior to November 5 by any of the Participants at that meeting was in the press, and by no means Confidential any longer, by the time of the meeting. The sworn testimony of White House participants in the November 5 meeting, like that of individuals in the RTC and elsewhere with whom they spoke, establishes what information White House officials had learned by mid-October 1993 about ongoing federal investigations. Notably, that testimony also demonstrates that much of what they knew they learned foam the press, not from government officials. But whatever the sources, the press accounts beginning on October 51, Egg] about the Resolution Trust Company referrals, the SBA investigation, Madison Guaranty, David Hale, the Rose Law Firm, and Seth Ward, put an enormous amount of detail about the pending investigations on the public record. Whereas White House Counsel had heard vague references to RTC referrals and "Madison," the news stories recounted the activities of the various investigators in minute a detail. This flood of public reporting totally undermines even the premise that the meeting participants had any "confidential" governmental information to share. The present conflict is wholly unnecessary because the Special Committee has available to it the means to obtain the information it legitimately seeks without invading the attorney- client privilege. For whatever reason, it has provoked this confrontation without exhausting available alternatives. For whatever reason, the majority is more concerned with precipitating a legal fight than with actually trying to obtain information in an appropriate way. On December 7, 1995, White House and personal counsel for the President presented what was essentially a three-step framework for resolving the impasse. We emphasized that no objection would be interposed to questions concerning what White House personnel knew about official governmental information when they went into the November 5, 1993, meeting (as previously demonstrated, the information available from White House-Treasury "contacts" in the September-October period was already in the press by November 5). Indeed, as a result of the President's willingness to allow the Senate extensive questioning of his attorneys who were present at the meeting, the Committee already knows (or has available to it) what information the White House participants had with them going into that meeting. The Special Committee is free to assume (although we make no such representation) that everything known by the lawyers from the White House who attended the meeting was communicated to Messrs. Kendall and Engstrom. We explained that counsel for the Special Committee is free to pose general questions about the purpose of the meeting. | An appropriate purpose is a prerequisite for the assertion of a legal privilege, and there would be no objection to questions that go to purpose, so long as they do not require disclosure of I communications at the meeting. The Special Committee has declined to ask such questions, yet an examination upon this subject would elicit relevant information without requiring disclosure of privileged communications at the meeting. We stated that counsel for the Special Committee is entirely free to test the responses it receives regarding the purpose of the meeting by asking what the White House personnel did after the meeting. The Committee may even ask why certain steps were taken. Indeed, it may even ask whether the steps were taken as a result of the meeting, so that the witness and counsel could determine whether the question might be answered without disclosing communications at that meeting. This step-by-step, question-by-question process is commonplace in litigation, and indeed compelled by the recognized need to protect confidential lawyer communications. As counsel for the Special Committee is well aware, whenever a privilege is invoked in litigation, it is often possible answers to a great many questions so long as privileged communications are not divulged. While this may be a | painstaking process, requiring the witness and counsel to consider after each question whether the witness may answer without disclosing privileged communications, it is possible to move forward and acquire a great deal of information without violating the privilege, if in fact answers to the questions posed would not invade the privilege. In its rush for a ', confrontation, the Special Committee majority has not availed itself of this time-tested way of both obtaining information and defining the exact bounds of the asserted privilege. The President's lawyers have proposed proceeding as we have described because that process could very well provide the Special Committee with the information it needs, while at the same time preserving the privilege and avoiding a constitutional confrontation. That plainly is the wisest course, and we urge the Committee to consider this approach seriously before demanding an intrusion into this protected relationship. CONCLUSION For the foregoing reasons, we respectfully submit that the Special Committee should respect the assertions of privilege of William H. Kennedy, III, Esq. December 12, 1995 Respectfully submitted, WILLIAMS & CONNOLLY By /s/ David E. Kendall Nicole K. Seligman Marcie R. Ziegler Max Stier 725 12th Street, N.W. Washington, D.C. 20005 (202) 434-5000 Attorneys for the President and Mrs. Clinton ENDNOTES [FN1] As Senator Simon noted at the Special Committee's hearing or December 11, 1995, in the current issue of Newsweek, it is reported that this Committee is targeting Mrs. Clinton's chief ax staff, Ms. Margaret Williams, as a proxy for Mrs. Clinton herself. "'We're going to crush her [Ms. Williams],' says one committee staffer.' Turque & Isikoff, Lost in Whitewater, Newsweek Dec. 18, 1995, at 39. [FN2] The article also demonstrated a familiarity with the referral decision-making process, reporting that "[t]here was protracted debate within the RTC about whether Madison transactions involving the Clintons should be included in documents sent to Casey, because the investigation focuses primarily on the handling of S&L funds by Madison officials . . . The RTC's investigators who are based in Kansas City were prepared to forward the information earlier this fall, but the decision to send the referrals on was not made until early October, the sources said." Id. at A14. [FN3] More specifically, the article stated that "the RTC has asked Casey to determine whether checks to the Clinton campaign were paid from overdrawn accounts with the authorization of Madison's owner, James 3. McDougal, or whether Madison loans intended for other purposes were used for campaign contributions Id. at A14. "RTC investigators have examined I irregular Madison transactions that took place in April 1985 and I have attempted to find out who endorsed and deposited a series of checks made out to Clinton or the gubernatorial campaign, one source familiar with the probe said." Id. The article noted that the campaign fund was maintained at an Arkansas bank, the Bank of Cherry Valley. As to the allegations concerning President Clinton, the article reported that Bathe sources said there is no indication Clinton had personal knowledge of or involvement in the transactions." Id. at Al. The story further divulged that, according to government sources, the RTC in its own investigation had gone "to extraordinary lengths to trace real estate transactions involving Whitewater Development Corporation" -- in which the Clintons and McDougals were partners -- and that these transactions were among the matters referred to the U.S. Attorney. Id. at A14. The RTC also had reportedly requested further federal investigation of Governor Guy Tucker's involvement with Madison Guaranty Savings & Loan. Id. 4 at A1. [FN4] Specifically, the Times article reported that "two Federal agencies have been trying to find out whether more than $250,000 in business loans was improperly diverted from Madison in April 1985 to several sources, including Mr. Clinton's reselection campaign for governor." Id. According to the article, "[t]he officials said the campaign received $12,000 in cashier's checks We from Madison, some of which appeared to have been paid for by the business loans." Id. But, the article reported, the President is neither the subject nor a target of the investigation, which is still in its early stages." Id. In addition, the Times story reported on interviews given by Mr. Hale in which he alleged that the $300,000 loan made by his company to Susan McDougal was to be used to Conceal questionable transactions by Madison, including indirect help for the Clintons." Id. According to the cited Hale interviews, Madison Guaranty financed a land deal for Mr. Hale "in February 1986 in which he was paid hundreds of thousands of dollars more than the property was worth," and which permitted him to make the $300,000 loan to Mrs. McDougal. Mr. Hale alleged that then-Governor Clinton personally pressed him to make the $300,000.00 loan." Id. The article additionally described allegations That Madison was helping Whitewater," and that Bathe company had frequent sizable overdrafts on its account at Madison." Id. [FN5] The Post reported that the lead attorney for the Rose Law Firm's FDIC representation, Webster Hubbell, had informed the FDIC that his father-in-law, Seth Ward, had been an executive for Madisons real estate investment company and had failed to repay substantial loans to Madison. The article concluded with the assertion that Hillary Clinton was one of the lawyers who represented Madison in 1985 when the failing S&L sought approval for a recapitalization plan from the state securities commissioner while her husband was governor." Id. Madison was also described as having made "loans to prominent Democrats including Mr. Fulbright and Jim Guy Tucker, a Little Rock lawyer ; who is now Governor of Arkansas." Id. [FN6] The article reprinted a 1988 letter from Mrs. Clinton to Jim McDougal requesting a power of attorney to "manage and conduct all matters related to Whitewater Development. And it provided additional details about the David Hale issue that the SBA was investigating, and about Mr. Hale's allegations about Mr. Clinton Specifically, it recounted Mr. balers charge that then Governor Clinton requested Hale's help in February 1986 at the State Capitol and a second time in March 19s6 at Mr. McDougals office. [FN7] The article then detailed at considerable length certain correspondence in the mid-1980's between attorneys at the Rose Law Firm and Charles F. Handley and Beverly Bassett Schaffer of the Arkansas Securities Department in connection with a Madison Guaranty matter. [FN8] The 1994 Senate Committee on Banking, Housing and Urban Affairs Hearing on the Whitewater Matter established that the RTC was extremely prone to Leaking confidential information. I. was thus not surprising that the press was able to obtain so much inside information about criminal referrals that the RTC had made or was in the process of making. In response to a question from : Senator Shelby, Deputy CEO of the RTC Jack Ryan responded, "Well, that's the problem, I think, Senator, is that the RTC does leak . . . [The referral information] was supposed to be confidential and the RTC has a responsibility to keep that information confidential as well. And the RTC breached that responsibility." Hearing T., at 61-62 (Aug. 1, 1994). In response to a question from Senator Murray, Mr. Ryan responded: The responsibility for maintaining the confidentiality of that information, of any information, investigative or otherwise, that could damage a case that the RTC is bringing, is a responsibility first and foremost of the RTC itself, it seems to me, and we haven't been very good about keeping those matters confidential. It's almost a certainty abound the RTC that any matter that has any kind of public interest at all is leaked to the press prematurely . . . . [W]e're quite concerned about it. I think partly it's the nature of the RTC . We have 60 -- 6500 employees many of whom are going to be out of a job come the end of next year when the RTC goes out of business, so there's not much of an incentive for institutional loyalty. There's not much concern by the employees of the RTC about doing something that might affect their employment there, and we've had a lot of premature leaks of very sensitive information. Id.at 122-123. Senator Murray asked Steven Katsanos, Director of Communications for the RTC, "how . . . the New York Times received information about criminal referrals regarding Madison," and Mr. Katsanos responded: "I have no idea. I would like to have to concur with my colleagues here, and I'd have to reflect that when I was a reporter, I would have loved to have had the job of covering the RTC . It is, because of the staff here, because of the people within the RTC, one of the easiest agencies to cover. One reporter once referred to it as not a very challenging agency -- it's like shooting dead fish floating in a barrel of water. It's an exceptionally easy agency to cover. . . . You can get information from RTC staff, from RTC contractors. You can get information from Congressional staff and that's unique to the RTC. It's just since it is such a visible organization with such a controversial job with so many different players involved, it's a simple job as far as a reporter is concerned." Id. at 125-125. [FN9] Because of a potential conflict, Mr. Engstrom withdrew from the Whitewater representation later in November, 1993, and was replaced as local counsel by John Tisdale, Esq., of the Wright, Lindsey & Jennings firm in Little Rock. Mr. Engstrom presently represents the President in civil litigation. [FN10] As the Supreme Court also stated, Bathe privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.@ 449 U.S. at 389; see also Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (attorney-client privilege is "founded upon the necessity, in the interest and administration 5 of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."). [FN11] See, e.g., Natta v. Zletz, 418 F.2d 633, 637 (7th Cir. 1969) { ("correspondence between house and outside counsel . . . clearly fall within the ambit of the attorney-client (collecting cases); Chicano Lawyers Committee for Civil Rights Under Law. Inc. v. City of Chicano, No. 76 C 1982, slip. op. (N.D. Ill. Apr. 27, 1981) (attorney-client privilege extends to meeting between "attorneys discussing the giving of legal advice or assistance in anticipation of pending litigation"); Green, 556 F. Supp. at 85 (attorney-client privilege reapplies equally to inter-attorney communications); Foseco Int'l Ltd. v. Fireline Inc., 546 F. Supp. 22, 25 (N.D. Ohio 1982) ("the Court finds that if the communications between Foseco's U.S. patent counsel and local counsel in Washington, D.C. were confidential communications and, therefore, subject to the attorney-client privileges); In re D.H. , Overmyer Telecasting Co., 470 F. Supp. 1250, 1254-55 (S.D.N.Y. 1979) (conversations between in-house and outside counsel protected by attorney-client privilege); Burlington Incus. v. Exxon Corn., 65 F.R.D. 26, 36 (D. Md. 1974) (confidential communications between in-house and outside counsel, as well as between two outside lawyers representing the same client, fall within scope of attorney-client privilege) (collecting cases). [FN12] See Green, 556 F. Supp. at 85 (privilege applies to "an attorneys notes containing information derived from communications to him from a client. That information is entitled to the same degree of protections from disclosure as the actual communication itself."); accord Natta, 418 F.2d at 637 n.3 ("insofar as inter-attorney communications or an attorney's notes contain information which would otherwise be privileged as communications to him from a client, that information should be entitled to the same degree of protection from disclosure. To hold otherwise merely penalizes those attorneys who write or consult with additional counsel representing the same client for the same purposes As such it would make a mockery of both the privilege and the realities of current legal assistance "); Smith v. MCI Telecommunications Corn., 124 F.R.D. 665, 687 (D. Kan. 1989). [FN13] This is particularly true in the governmental context. As the Office of Legal Counsel explained in a 1982 opinion letter, "it is likely that, in most instances, the "client" in the context of communications between the President and the Attorney General, and their respective aides, would include a broad scope of White House advisers in the Office of the President. The "unfunctional" analysis suggested by Upjohn focuses on whether the privilege would encourage the communication of relevant and helpful information from advisers most familiar with the matters on which legal assistance is sought, as well as whether the privilege is necessary to protect and encourage the communication of frank and candid advice to those responsible for executing the recommended course of action. A corollary to this expanded concept of the "client which reflects the realities of the governmental setting, is that the "attorney" whose communications are subject to the attorney-client privilege may, in fact, be several attorneys responsible for advising the Clients" 6 Op. O.L.C. 481, 496 (Aug. 2, 1982). [FN14] See also Benedict, 1995 U.S. Dist. LEXIS 573, at *3-4 Conversations between plaintiffs' counsel and consultant retained by plaintiffs to prepare them for prospect of litigation and assist with litigation "are protected by the attorney-client privilege, because [the consultant] was acting as plaintiffs' representative during those consultations."); Farmaceutisk Laboratorium Ferring A/S v. Reid Rowell. Inc., 864 F. Supp. 1/73, 1274 (N.D. Ga. 1994) (independent consultant was so meaningfully ; associated with corporation that it could be considered insider for purposes of privilege); American Colloid Co. v. Old Republic Ins. Co., 1993 U.S. Dist LEXIS 7619, *2-3 (N.D. Ill. June 4, 1993) (communications between plaintiff's agents and plaintiff's counsel are privileged); Carte Blanche PTE. Ltd. v. Diners Club Intel Inc., 1.30 FARAD. 28, 33-34 (S.D.N.Y. 1990) (correspondence between client's agent and client's counsel protected by attorney-client privilege), subsequent opinions rev'd on other Grounds, 2 F.3d 24 (2d Cir. 1993). [FN15] See United States v. Mullen & Co., 776 F. Supp. 620, 621 (D. Mass. 1991) ("the attorney-client privilege may apply to confidential communications made to an accountant when the client is under the mistaken, but reasonable, belief that the professional from whom legal advice is sought is in fact an attorney."); United States v. Tyler, 745 F. Supp. 423, 425-26 (W.D. Mich. 1990); United States v. Boffa, 513 F. SUPD. 517, 523 (D. Del. 1981). [FN16] Haines v. Liggett Group Inc., 975 F.2d 81, 94 (3d Cir. 1992); see also Walter v. Financial Corp. of America, 828 F.2d 579, 583 n.7 (9th Cir. 1987) ("communications by a client to his own lawyer remain privileged when the lawyer subsequently shares them with co-defendants for purposes of a common defense") (quoting United States v. McPartlin, 595 F.2d 1321, 1326 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1979)); In re Grand Jurv it Subcoena Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 3El, 389 (S.D.N.Y. 1975) ("the attorney-client privilege covers communications to a prospective or actual co-defendant's attorney when those communications are engendered solely in the interests of a joint defense effort."). [FN17] Holland v. Island Creek Corn., 885 F. Sups. 4, 6 (D.D.C. 1995); see also United States v. Bav State Ambulance & Host. Rental Service, 874 F.2d 20, 28 (lst Cir. 1989); In re Bevill, Bresler & Schulman Asset Manaaement Corm., 805 F.2d 120, 126 (3d Cir. 1986); In re LTV Sec. Litig., 89 F.R.D. at 604. It is not necessary for actual litigation to have commenced at the time of the meeting for the privilege to be applicable. United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1991). [FN18] See Schwimmer, 892 F.2d at 244 (it is not necessary for attorney representing the communicating party to be present when the communication is made to the other party's attorney); McPartlin, 595 F.2d at 1335 (applying common interest rule to communications between client and agent for attorney of person with common interest); Saltzberg at 600 (8BThe fact that clients are present at a consultation in the common interest certainly should not preclude the application of the common interest ruie, so long as the statements are otherwise intended to remain confidential and are made for purposes of obtaining legal advice in the common interest."). [FN19] The attorney-client privilege applies to confidential communications between government attorneys and their clients in the same manner in which it applies to communications between private counsel and their clients. See Green, 556 F. Supp. at 85 (attorney-client privilege Unquestionably is applicable to the relationship between Government attorneys and administrative personnel") (collecting cases); SEC v. World-Wide Coin Investments. Ltd., 92 F.R.D. 65, 67 (N.D. Ga. 1981) (attorneyclient privilege applied to communications between SEC lawyers and staff); Jusiter Painting Contractina Co. v. United States, 8/ F.R.D. 593, 598 (E.D. Pa. 1380) ("Courts generally have accepted that attorney-client privilege applies in the governmental context"). [FN20] Moreover, in addition to serving as counsel to the President and Mrs. Clinton at the November 5, 1993 meeting, Mr. Lindsey also may be viewed as a "client" for purposes of the meeting under the functional definition of that term set forth in the Office of Legal Counsel's August 2, 1982 opinion letter. See note 13, sucra. As a White House official working on Whitewater-related issues, Mr. Lindsey was extremely familiar with "the matters on which legal assistance was sought," 6 Cp. O.L.C. at 496, and his presence at the meeting was necessary both to transmit information to other White House and personal counsel and to receive information required in order to fulfill his official responsibilities with respect to Whitewater. Accordingly, Mr. Lindsey falls squarely within the definition of "clients elucidated in the Office of Legal Counsel's opinion letter, and his presence at the meeting is for this reason as well fully consistent with the assertion of the common interest privilege. [FN21] See also Flynn v. Church of Scientology Int'l, 115 F.R.D. 1,3 (D. Mass. 1986) ("one who consults a lawyer with a view to obtaining professional legal services from him is regarded as a client for purposes of the attorney-client privilege."). [FN22] See, e a., In re Grand Jury Proceedings (Doe), 867 F.2d 539 (9th Cir. 1989) (applying work-product doctrine in context of grand jury investigation); In re Sealed Case, 676 F.2d 793 (D.C.Cir. i982) (applying work-product doctrine to documents created by counsel rendering legal advice in connection with SEC and IRS investigations). APPENDIX A THIS COMMITTEE'S FINDINGS AS TO TREASURY/WHITE ROUSE CONTACTS According to both the majority and minority views in the Senate report on Treasury/White House "contacts," 1/ those meetings focused generally on the existence of the criminal referrals, not their specifics. And what details were known were more often than not gleaned from press inquiries. See Committee Report at 31 ("Mr. Gearan testified that he understood that all of the information under discussion had been transmitted to the Treasury by reporters."). For example, at the October 14, 1993, White House meeting,2/ the second of the Treasury/White House "contacts" and the last to take place before the Williams & Connolly meeting, "[all of the meeting's attendees testified that Mr. DeVore began the meeting and related what he had been told by Mr. Gerth of the New York Times." Id. at 27.3/ According to Mr. DeVore, Mr. Gerth told him that the RTC was investigating Madison and that part of the investigation centered on a 1985 fundraiser for then Governor Clinton and contributions made by checks drawn on Madison and deposited in another bank." Id. at 23. Mr. DeVore also testified that "Mr. Gerth sought his help in determining who had contributed the checks or who had endorsed the checks" and 'mentioned Governor Tucker." Id. Bruce Lindsey, a lawyer in the White House a former law partner of the President and a lawyer for then-Governor Clinton, who was analyzing legal issues in the White water" questions [ emerging in the fall of 1993, testified that the major parts of at the meeting consisted of Mr. DeVore describing several inquiries he had received and focusing in on one of those inquiries." Id. at 28. The Committee Report concluded that "Mr. Lindsey's description of the meeting, particularly Mr. DeVore's recounting of press inquiries, is supported by his notes . . . . " Id. at 29. Those notes list reporter names and then brief notations on the inquiries. For example, "Madison Guaranty" and "1985 Rose Law Firm" are written under the name of "Sue Schmidt," a reporter for The Washington Post. Not surprisingly, the information contained in the notes associated with the various reporters resurfaced in greater detail in the news stories written by those reporters that were published prior to the November 5 meeting. Similarly, according to the Committee Report, O'er. Gearan testified that he understood that all of the information under discussion had been transmitted to the Treasury by reporters.| Id. at 31. His notes also contained reporters' names associated with a variety of statements concerning the RTC's referral. Once again, the information contained in the inquiries It as set out in Mr. Gearan's notes represented the kernels of later news stories. Ms. Hanson apparently was the sole attendee at the meeting who testified that the information she provided on the referral had not come from press inquiries but rather from the RTC. See id. at 34. Ms. Hanson testified that she "told the group that the referrals mentioned the Clintons 'solely as possible witnesses' and that at least one referral related to a possible conspiracy to divert funds among a Clinton gubernatorial campaign, McDougal, and Peacock." Id. at 33. Communications to the White House prior to the October 14th meeting were even less detailed. On September 29, 1993, at the first White House-Treasury "contact" on Whitewater issues, Ms. Hanson had alerted Mr. Nussbaum to the existence of the RTC referral and the possibility of press leaks. According to Mr. Nussbaum's uncontroverted testimony, gems. Hanson told him that these referrals involved the activities of an Arkansas savings and loan association, which she may or may not have identified as N Madison[, and] . . . that one of the referrals involved the possibility of improper campaign contributions from the savings and loan to the Clinton gubernatorial campaign." Id. at 11.4/ Joining the Hanson/Nussbaum discussion a few minutes later, | Associate White House Counsel Clifford Sloan testified that "Ms. Hanson told him and Mr. Nussbaum that there had been eight or nine referrals, that the referrals mentioned the Clintons as witnesses, that the referrals mentioned a Clinton gubernatorial | campaign more extensively, that Mr. Altman had sent Mr. Nussbaum T some material on this matter, and [had stated] that 'there might 2 be' press inquiries." Id. at 12. Mr. Sloan's impression was that the referrals had already been made or were a 'fait accompli, and that the conversation lasted approximately five minutes. Id. The information shared by Ms. Hanson was published and expanded upon in news stories published in the week prior to the November 5 meeting. According to the Committee Report, information about the RTC referral was transmitted from Ms. Hanson to Mr. Sloan (and then on to others in the White House) on two additional occasions before the October 14th meeting./5 Ms. Hanson made telephone calls to Mr. Sloan on September 30th and on October 7th. "Mr. Sloan testified that she generally passed along to him questions which were being asked by reporters from the Washington Post and New York Timestw and that his notes were consistent with that recollection. Id. at 15-16. The notes taken on September 30th refer among other things to "9 referrals," "Whitewater Co. -- re: Clinton principals and "Jim Guy Tucker." Id. at 16. The more lengthy notes from October 7th, organized by the reporter making the inquiries, contain additional names including "Seth Ward" and the "Rose Law Firm." Id. at 21. Like the notes of press inquiries from the October 14th meeting, Mr. Sloan's notes look like the rough outlines of future news stories that they were. ENDNOTES [FN1] See generally Report of the Committee on Banking, Housing, and Urban Affairs on the Communications between Officials of the White House and the U.S. Department of the Treasury or the Resolution Trust Corporation, S. Rep. No. 433 Vol. II, 103d Cong., 2d Sess. (1994) ("Committee Report"). [FN2] The meeting attendees were Mr. DeVore, Ms. Hanson, Mr. Steiner, Mr. Eggleston, Mr. Gearan, Mr. Lindsey, Mr. Nussbaum and Mr. Sloan. Id. at 26. . [FN3] For the purpose of understanding the extent to which any i confidential information was discussed at this meeting, the testimony of the witnesses is consistent and uncontroverted. "The differences in the witnesses recollections center on: (i) who told the group about which press inquiries; (ii) who told the group the referrals had been made; and (iii) whether any advice was sought or given with respect to how Mr. DeVore should respond to press inquiries on the referrals." Id. at 27. [FN4] Mr. Nussbaum also gave sworn testimony that "he believed I that White House officials did not require further information from the Treasury to respond to press inquiries," and he did not ask for copies of the referrals or for more information about the referrals because it was not necessary." Id. at 13. [FN5] Ms. Hanson called Mr. Sloan a third time "to tell him that the press people had set up a meeting between White House and Treasury officials on October 14, 1993." Id. at 22.