The Sixth Circuit's holdings that state and local governments can assert attorney-client privilege in defense of civil actions, and that the government's privilege is not waived as to the government because a former official wishes to assert a defense to personal liability based upon advice by government counsel, are unexceptional. So, too, is the direction to the district court on remand to consider whether, in this case, the attorney-client privilege at issue belonged in the first instance to the government as an entity or to the official as an individual.

The opinion appears to hold, however, that if the privilege does belong to the City, and if the City continues to refuse to waive the privilege, the former Police Director will have to figure out how to assert his qualified immunity defense without making use of the privileged communication. In this regard, it may be interesting to consider opinions by two other circuits which support the view that at least in a criminal context, the way out of this kind of trouble may be to order separate trials against the defendant wishing to assert "advice of counsel" and the defendant that does not wish to do so. See, U.S. v. Walters, 913 F2d 388 (7th Cir 1990); U.S. v. White, 887 F2d 267 (DC Cir 1989). See also, Amatuzio v. Gandalf Systems Corp., 932 F Supp 113, 118 (D NJ 1996) (holding that on the facts of the case, a former employee suing his former employer could use communications subject to the employer's attorney-client privilege, but conveyed by the employer to the employee because "the court should consider whether an employer enjoyed an expectation of privacy with respect to a particular employee at the time the disclosure was made").