Attorney-Client Issues - Attorney-Client Privilege

Mohawk Industries Inc. v. Carpenter, 130 S.Ct. 599 (2009)

Justice Sotomayor, in her first opinion, holds (for the unanimous Court) that a district court order that compels disclosure of what is claimed to be attorney-client privileged material is not immediately appealable under the collateral order doctrine. Though the “cat is out of the bag” argument has some merit, the normal rules that prohibit piecemeal appeals controls. The aggrieved party may appeal after trial and, if successful, can win a new trial at which the information may not be used. Also, the party may simply refuse to comply, suffer an order of contempt, and appeal that order. Third, the party may seek to invoke 28 U.S.C. § 1292(b) which authorizes the district court to certify an interlocutory appeal.

United States v. Zolin, 491 U.S. 554 (1989)

In determining whether the crime fraud exception to the attorney/client privilege applies, the district court may conduct an in camera review of the communications themselves if the party opposing the privilege satisfies the court that there is a reasonable belief that such examination will yield evidence establishing the applicability of the crime fraud exception. Any evidence may be used to make this showing.

Swidler & Berlin v. United States, 118 S.Ct. 2081 (1998)

The attorney-client privilege survives the death of the client.

United States v. Nelson, 732 F.3d 504 (5th Cir. 2013)

The defendant entered into a plea – later withdrawn – that contained an express waiver of his rights under Rule 410 to exclude evidence of his statements in the event he withdrew. At his trial, the government sought to introduce not only his statements, but also his then-attorney’s testimony about the circumstances surrounding the preparation of the factual basis. This violated the attorney-client privilege. The defendant’s waiver regarding the use of his statements did not also waive the attorney-client privilege.

Gennusa v. Canova, --- F.3d --- (11th Cir. 2014)

A suspect and her attorney went to a police station to be interviewed. Prior to the interview, the attorney and the suspect were placed in an interview room (the suspect was not in custody) and were not warned that their conversation would be taped. The Eleventh Circuit held that monitoring the conversation violated the Fourth Amendment rights of the two individuals and that a § 1983 action could be brought, because the deputies were not entitled to qualified immunity for this obvious violation of the Fourth Amendment and the attorney-client privilege.

United State v. Nelson, 732 F.3d 504 (5th Cir. 2013)

The defendant was debriefed with the understanding that if he did not plead guilty, what he said during the debriefing could be used against him. He did not plead guilty and switched lawyers. At trial, the government called his lawyer to testify about the voluntariness of the defendant’s statements at the debriefing. The Fifth Circuit held that portions of the attorney’s testimony violated the attorney client privilege.

In re Grand Jury Subpoena, 745 F.3d 681 (3rd Cir. 2014)

This case contains a thorough primer on the procedures that are appropriate when the government seeks to pierce the attorney-client privilege by invoking the crime-fraud exception. The procedure – proceeding in camera before a trial judge ex parte is appropriate. An immediate appeal under the Perlman doctrine is appropriate when, as here, the information is in the possession of the attorney, who would otherwise have no reason to risk being held in contempt in order to protect his client’s privilege; thus the client may appeal, rather than having to wait for the attorney to be held in contempt and relying on the attorney’s decision to appeal. On the merits, the Third Circuit held that crime fraud exception applies only if the client was in the process of committing a crime, or contemplating committing a crime when the attorney was consulted. It does not apply if the attorney is consulted and later the client decides to commit a crime or fraud.

In re Grand Jury, 705 F.3d 133 (3rd Cir. 2012)

When a grand jury subpoena is issued to a corporation for certain documents, or to an attorney for the corporation who is in possession of certain of the corporate documents the attorney must suffer the consequences of contempt in order to perfect an appeal of an Order by the district court that the attorney-client privilege does not apply. The Order requiring the attorney to produce the records is not directly appealable. The exception recognized in Perlman v. United States, 247 U.S. 7 (1918), only applies to a third party custodian who has no interest in being held in contempt. In that situation, the client has the right to appeal the Order, because the custodian has no interest in perfecting an appeal and the client is not subject to contempt, so the client must be afforded the opportunity to appeal without the custodian, or the client first being held in contempt. In the situation with an attorney custodian, however, the client can simply insist that the documents be returned to the client and the client can then refuse to produce the documents, be held in contempt and appeal. With respect to Orders directed at former employees (including former in-house counsel), the corporation may appeal, because the corporation may not require former employees to return documents to the corporation. Finally, the Third Circuit held that Mohawk did not eliminate the Perlman rule, at least in the context of grand jury subpoenas. The Third Circuit, having disposed of the jurisdictional issue, then reached the merits of the crime fraud exception issue, as it related to the former employees and concluded that a sufficient showing was made by the government to invoke the crime fraud exception.

United States v. Gonzalez, 669 F.3d 974 (9th Cir. 2012)

The Ninth Circuit holds that the defendant established the existence of a joint defense agreement and was therefore entitled to prevent the attorney from offering testimony during this § 2255 proceeding. The court also held that the privilege survives the client’s filing of a § 2255 proceeding alleging ineffective assistance of counsel.

United States v. Krane, 625 F.3d 568 (9th Cir. 2010)

Even post-Mohawk, if a subpoena for arguably privileged documents is issued to a disinterested third party, the “client” may intervene and pursue an interlocutory appeal of the production of the documents. The Ninth Circuit, relying on Perlman v. United States, 247 U.S. 7 (1918), held that the third party custodian presumably has no interest in resisting disclosure, or being held in contempt, and therefore, without permitting the client to intervene and appeal, there is no avenue for the client to advocate for the privilege. The Ninth Circuit noted, however, that this rule only applies if the disinterested third party (i.e., the law firm which is subpoenaed to produce documents) is no longer the defendant’s counsel. That is, the Perlman rule only applies if the third party is the former attorney for the defendant.

United States v. Graf, 610 F.3d 1148 (9th Cir. 2010)

The defendant was an independent contractor who provided consulting services to an insurance corporation. In actuality, he was probably the principal operator of the corporation, whose official title was not as an officer or employee because he was barred from employment with any insurance company. Attorneys for the corporation discussed various matters with him about the operations of the company. He was ultimately indicted. The corporation officially waived the privilege and the attorneys testified against the defendant. The Ninth Circuit affirms. For purposes of the attorney client privilege, the attorneys were attorneys for the corporation, not the individual; and he was an employee of the corporation because of the manner in which he conducted his consulting business.

United States v. Thompson, 562 F.3d 387 (D.C. Cir. 2009)

The government was investigating WPC, Corp. The corporation conducted an internal investigation and turned over the results of the investigation to the government. Accompanying the disclosure was a letter that sought to preserve both the attorney client and work product privileges. The corporation settled with the government. Thompson, however, was indicted. He filed a Rule 16 request for the documents and interviews submitted by the corporation, as well as a Brady request. The corporation sought to bar disclosure to the defendant. The D.C. Circuit held that the defendant was entitled to both Brady and Rule 16 material. The court cautioned, however, that a wholesale disclosure of all the materials presented to the government by the corporation were not required to be furnished, because if the material did not qualify as Brady and would not be “material to the defendant’s ability to prepare a defense,” there was no basis for requiring its disclosure.

United States v. Novak, 531 F.3d 99 (1st Cir. 2008)

An individual who was incarcerated and facing a federal sentencing contacted an attorney – the defendant in this case – from the jail telephone and the two discussed illegal ways in which the attorney could eliminate the defendant’s criminal history. The jail telephone warned all callers that the call would be taped, though state law provided that the police would not listen to calls with attorneys. The police listened to these calls, however, in violation of that state regulation. The attorney was prosecuted for his participation in the obstruction of justice scheme. The First Circuit concluded that the inmate’s consent to the taping of the call was sufficient to render the Fourth Amendment claim meritless. With regard to the attorney-client privilege, the attorney-defendant did not claim that the taping violated the defendant’s Sixth Amendment rights and the First Circuit did not address these potential claims.

In re Grand Jury Proceedings, 492 F.3d 976 (8th Cir. 2007)

Even if the government succeeds in persuading the court that certain documents were covered by the crime-fraud exception to the attorney-client privilege, the work product privilege survives, assuming the attorney was an unwitting participant in the client’s fraud.

Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007)

Generally, if a third party is sitting in during a conversation between a client and a lawyer, the conversation will not be privileged. In limited situations, however, the presence of a person who is assisting the lawyer will not vitiate the privilege. In this case a union representative for the police brought the officer who was accused of wrongdoing to the lawyer and assisted in preparing materials for the representation. The presence of the union rep did not render the communications unprivileged.

In re Grand Jury Subpoenas 04-124-03, 454 F.3d 511 (6th Cir. 2006)

When a grand jury issues a subpoena to a person or entity that holds documents that arguably are privileged, the holder of the privilege (i.e., the target of the grand jury investigation) has the right to review the documents and assert the privilege. The government in this case argued that the government, through the use of a taint team, should do the initial privilege review. The Sixth Circuit held that the privilege takes precedence over the grand jury’s power to investigate and subpoena records.

United States v. Bergeson, 425 F.3d 1221 (9th Cir. 2005)

A defendant jumped bail. His attorney, Ms. Bergeson, was subpoenaed to testify at the grand jury about whether she had told her attorney about the trial date. The trial court held that the information was not privileged, but the subpoena would be quashed as unreasonable and oppressive, because compliance with the subpoena would destroy the attorney-client relationship. The government had other evidence of the defendant’s knowledge of the trial date (from the defendant’s mother and an earlier pleading filed by counsel indicating that the defendant agreed to a continuance). The Ninth Circuit affirmed, holding that the trial court did not abuse his discretionary authority under Rule 17(c)(2).

United States v. DeFonte, 441 F.3d 92 (2d Cir. 2006)

A witness for the government was an inmate at a federal pretrial detention center. The inmate kept a journal that recorded her conversations with her attorney and that also noted various observations that she intended to later relate to her attorney. The Second Circuit held that the first category of information fell within the attorney-client privilege. The second category – notes or outlines of what the client intended to discuss with the attorney – would be considered privileged if, in fact, the conversations did occur at some point after the document was prepared. In other words, an outline for future discussion is not privileged until after the discussion occurs.

In re Grand Jury Subpoena, 445 F.3d 266 (3d Cir. 2006)

The attorney communicated with the corporate client representative, advising her about a subpoena duces tecum. The crime fraud exception applied to this communication, because the government claimed that the client made decisions about shredding documents and deleting emails (or at least not preventing the deletion of documents) based on this communication. This case contains a lengthy analysis of the crime fraud exception to the attorney client privilege.

United States v. Doe, 429 F.3d 450 (3rd Cir. 2005)

The crime fraud exception applied in this case where the client, a law enforcement officer, consulted an attorney and sought information that would have enabled the client to conceal his criminal activity.

In re Lott, 424 F.3d 446 (6th Cir. 2005)

Even when a defendant in a successive habeas petition relies on the “actual innocence” doctrine, his communications with trial counsel which indicate guilt are not subject to disclosure to the prosecution.

In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005)

When a client uses his attorney’s advice to further a crime or fraud, this does not vitiate the privilege with regard to all communications between the attorney and client. The privilege is only lost with regard to those communications and papers that are used in furtherance of the fraud or crime. The district court’s order in this case correctly found that the crime fraud exception applied, but the order was too broad in ordering the disclosure of all documents relating to the attorney-client relationship.

In re Grand Jury Subpoena (Under Seal), 415 F.3d 333 (4th Cir. 2005)

This case explores the rules established in Upjohn v. United States, 449 U.S. 383 (1981), dealing with the attorney-client privilege in situations where corporate counsel talks to employees. An employee who communicates with his employer’s internal investigation counsel and is specifically apprised that the lawyer represented only the company could not personally invoke the attorney-client privilege.

In re Grand Jury Proceedings, 417 F.3d 18 (1st Cir. 2005)

First, the standard for applying the crime-fraud exception: It is enough to overcome the privilege that there is a reasonable basis to believe that the lawyer’s services were used by the client to foster a crime or fraud. Second, the First Circuit considered the impact of such a finding on a joint defense agreement that was not infected with the fraud: the joint defense agreement protects the privileged communications.

United States v. Under Seal, 401 F.3d 247 (4th Cir. 2005)

In order to rule on the crime fraud exception, the district court must actually consider the contents of the documents and may not simply accept the prosecutor’s proffer. The court did not expressly hold that the trial court must examine the documents personally, but the contents must be the focus of the inquiry.

In re Grand Jury Investigation (United States v. Doe), 399 F.3d 527 (2d Cir. 2005)

A state official’s communication with a state attorney may qualify as a privileged communication. In this case, the governor’s counsel engaged in privileged communications with the governor (who was the target of the investigation) as well as staff personnel in the governor’s office.

United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003)

The Eleventh Circuit considered various aspects of the joint defense privilege in this case. The critical holding is that when one participant joins a defense privilege agreement and later testifies as a government witness, the admissions he made pursuant to the “privilege” to other attorneys may be used by his erstwhile co-defendants to impeach him.

In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp., 348 F.3d 16 (1st Cir. 2003)

The First Circuit considers issues of attorney-client communication waiver in circumstances where the purported waiver occurs not in a judicial proceeding. The corporation retained outside counsel who conversed with another corporation’s representatives about the subject matter of the grand jury’s investigation. The attorney’s conversation with the other corporate representative, including statements about what he told his client, did not operate to waive the attorney-client privilege with regard to all communications related to that subject matter. Similarly, meetings between corporate counsel and the government, meetings that were preceded with an explicit statement that the attorney-client privilege would not be waived, did not waive the privilege with regard to all related communications. With regard to implied waivers (extending beyond the actual conversations that were revealed, to other communications on the same subject matter), the court held that there would be no implied waivers of privileged subject matters in an extra-judicial setting, unless the client sought to gain some tactical advantage from the disclosure.

In re Grand Jury Subpoena, 341 F.3d 331 (4th Cir. 2003)

The defendant was questioned about an answer he provided on an INS application regarding his prior record. When confronted with the falsity of the answer, he stated that he had consulted with an attorney before answering the question. The attorney was then brought to the grand jury and asked about the advice provided to the defendant about the answer to that question on the application. Though the question to the attorney was a matter that would generally be privileged (and the fact that the application itself was not confidential did not vitiate the privilege), the privilege was waived by the defendant’s reliance on that advice when responding to the agents’ questions.

United States v. Rakes, 136 F.3d 1 (1st Cir. 1998)

The defendant was charged with perjury. He was the victim of extortion and had been called to the grand jury to testify about the crime, but denied that he had been victimized. He confided in his wife, and his attorney about the extortion. The government then sought to compel the testimony of his wife and attorney. The district court upheld the marital communication and attorney-client privilege claims. The First Circuit affirmed. There is no exception to the privileges in cases in which the client is the victim of a crime.

In re Grand Jury Subpoenas, 123 F.3d 695 (1st Cir. 1997)

When the grand jury issues a subpoena to a law firm for records relating to a client, if the trial court denies a motion to quash on attorney / client privilege grounds, the company may immediately appeal and need not wait until the law firm is held in contempt. Turning to the merits of this appeal, the First Circuit concluded that billing records may, in some circumstances, contain attorney / client privileged information where, for example, the bill reveals the nature of the work performed by the attorney. The record was too sparse in this case, however, to make this determination and a remand for further development of the facts was necessary.

United States v. Bauer, 132 F.3d 504 (9th Cir. 1997)

The defendant was charged with bankruptcy fraud, including allegations of concealing assets. As the government 's last witness, the defendant's bankruptcy attorney was called to the stand and asked to testify whether he told the defendant of his duty to disclose all assets and whether he was told the bankruptcy forms were filled out under the penalty of perjury. Despite the fact that the attorney was told not to discuss the exact words that were used, or to reveal any specifics of their conversations, this still violated the attorney-client privilege and necessitated reversing the conviction. The Ninth Circuit noted that the attorney-client privilege is a two-way street: it covers statements made by the client, as well as the advice rendered by the attorney. The court also held that the crime-fraud exception did not apply, because the attorney's advice was not used to further a crime or fraud.

In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000)

A corporation was being investigated for illegal firearms sales. The corporation explicitly sought to enforce the attorney-client privilege. An officer of the corporation, however, testified at the grand jury about certain dealings of the corporation and procedures that the corporation adopted in light of counsel’s advice; and the corporation’s in-house counsel also testified, but refused to disclose certain notes that were taken by his assistant during a meeting about which he testified (claiming that this was work product). The government claimed that the corporation waived both the attorney-client and the work product privileges. The Second Circuit held that waiver may be found where the privilege holder asserts a claim that in fairness requires examination of protected communications. Fairness comes into play when a party attempts to use the privilege both as a sword and as a shield. In other words, a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party. A quintessential example of waiver is the advice of counsel defense. Circumstances may also dictate that there has been a partial waiver. The issue is more complicated in the context of corporate entities, because, as here, the corporation may assert the privilege, but an officer – acting in an individual capacity – may inadvertently (or, for that matter, intentionally) waive the privilege. This case contains a thorough review of the jurisprudence of waiver and corporate attorney-client privilege and work product privilege issues.

Whitehouse v. United States District Court for District of Rhode Island, 53 F.3d 1349 (1st Cir. 1995)

The District Court did not exceed its authority in issuing a local rule which adopted the ABA ethics rule requiring judicial approval before a subpoena is issued to an attorney seeking information about a client.

United States v. Klubock, 832 F.2d 664 (1st Cir. 1987)

The First Circuit divides three to three thereby affirming the district court decision which upheld a rule which requires federal prosecutors to seek permission from the court prior to issuing a subpoena to a lawyer. The rule was adopted by the district court for the District of Massachusetts as a local rule.

In re Richard Roe, Inc., 68 F.3d 38 (2d Cir. 1995)

In analyzing a claim that a lawyer-client communication is subject to the crime-fraud exception, the court must determine whether there was probable cause to believe that a crime or fraud has been attempted or committed and that the specific communication was in furtherance of that fraud. It is not enough that the documents or communications are relevant evidence of the fraud. Rather, the communications must be in furtherance of the fraud. Thus, the communication must either facilitate or cover-up the fraud. The lower court’s findings in this case were not sufficient to make this determination.

Vingelli v. United States, 992 F.2d 449 (2d Cir. 1993)

An attorney who paid the fee for another lawyer to represent a defendant may not refuse to identify his client – the person who gave him the money to give to the attorney representing the defendant. Client-identity and fee-payment information is not privileged. Though the Second Circuit recognizes that in some circumstances such disclosures can be resisted, such as where the substance of a confidential communication has already been revealed, but not its source, this exception does not apply here. The fee-payor’s fear of possibly being tarnished with guilt by association is insufficient.

United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989)

A joint defense privilege may exist even prior to the initiation of litigation and the privilege exists even if one party talks to another party’s lawyer outside the presence of the first party’s lawyer. The privilege also covers conversations between one party and the accountant of another, if the accountant was retained by the lawyer of the other party and the communication was intended to be confidential. The protection afforded by the privilege applies even indirectly; such as by bringing out facts brought to knowledge solely by reason of a confidential communication. Here, the accountant who was hired by one defendant’s attorney provided various documents to the prosecutor after that defendant entered a guilty plea. Some of the information, however, had been acquired from the other defendant, who had relied on the joint defense privilege. Though those documents were not themselves introduced, the prosecutor used information derived from these sources. A full evidentiary hearing was necessary to determine whether the government had this information independently.

United States v. Dennis, 843 F.2d 652 (2d Cir. 1988)

A person charged with the defendant was appointed counsel by the court. That co-defendant sought the advice of defendant’s attorney prior to trial. Subsequently, the co-defendant became a government witness. The Second Circuit holds that the defense attorney should be permitted to cross-examine the co-defendant as to the substance of their pre-trial conversation.

In re Von Bulow, 828 F.2d 94 (2d Cir. 1987)

Alan Dershowitz was given permission by his client, Von Bulow, to publish a book which contained communications between the defendant and his counsel. At a subsequent trial, the plaintiffs who sued Von Bulow in a civil proceeding sought to obtain other communications on the basis that they were waived by these disclosures. The court holds that although the published conversations are no longer privileged, unpublished communications remain privileged even if they were part of the published conversations or if they relate to the subject matter of the conversations.

In re Impounded Case (Law Firm), 879 F.2d 1211 (3rd Cir. 1989)

The government sought to invoke the crime fraud exception to obtain documents which embodied attorney/client communications. The fraud was alleged to have been committed by the attorney, not the client. The Third Circuit holds that the crime fraud exception applies in such circumstances. However, the specific documents which are pertinent to the accusation of criminal activity by the attorney are the only documents which may be disclosed.

In re Grand Jury Subpoenas 89-3 and 89-4, 902 F.2d 244 (4th Cir. 1990)

The joint defense privilege applies regardless of whether there is a pending action; it applies regardless of whether the allied parties are plaintiffs or defendants; and it applies regardless of whether the litigation is civil or criminal.

In re Antitrust Grand Jury (Advance Publications, Inc.), 805 F.2d 155 (6th Cir. 1986)

In order to apply the crime or fraud exception to the attorney/client privilege, a trial court must conduct an in camera ex parte hearing. The trial court must then distill what documents were subject to the crime fraud exception and may not simply authorize the disclosure of all documents and communications between the attorney and the client. The Sixth Circuit also held that the government must make a prima facie showing of the crime or fraud and must also demonstrate the relationship between the fraud and the particular communication which the government seeks to compel disclosed. The court emphasizes that the crime fraud exception only applies to those particular communications intended to further the crime or fraud, and the trial court must make an in camera review of each and every document.

United States v. Evans, 113 F.3d 1457 (7th Cir. 1997)

While evidentiary rulings are not generally immediately appealable, clients make take an immediate appeal when their attorneys are required to testify or produce documents in the face of an assertion of attorney-client privilege and no substantial breach of the privilege has yet occurred. Here, the government moved in limine to introduce the testimony of the defendant’s former lawyer. The privilege did not apply, however, because the defendant chose to have another person present during the conversation – the other person was also an attorney, but was there as a friend, not as a lawyer – after being cautioned that the presence of the other person rendered the privilege inapplicable.

In the Matter of Grand Jury Proceeding (Cherney), 898 F.2d 565 (7th Cir. 1990)

A member of a drug conspiracy consulted with a lawyer and asked the attorney to represent a co-defendant. This client, who paid the fee for the co-defendant, was never himself indicted. The government asked the attorney who the client was who acted as the benefactor of the other defendant. The attorney moved to quash the subpoena, the District Court granted the motion and the Seventh Circuit affirmed.

United States v. Sindel, 53 F.3d 874 (8th Cir. 1995)

The defense attorney was successful in claiming that with regard to one client’s fee, he should not be required to furnish fee-payor information on an 8300 form.

United States v. Chen, 99 F.3d 1495 (9th Cir. 1996)

The attorney-client privilege applies to communications between corporate employees and counsel, made at the direction of corporate superiors in order to secure legal advice. Upjohn Co. v. United States, 449 U.S. 383 (1981). Only the corporation may waive the attorney-client privilege where the corporation is the client. This same rationale applies to ex-employees. The power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors. In addition to issues of waiver, this case contains a lengthy analysis of the attorney-client privilege as it applies in the context of lawyers providing “business-legal” advice to a corporation. In conclusion, however, the court held that the crime fraud exception applied and the communications were not privileged.

United States v. Rowe, 96 F.3d 1294 (9th Cir. 1996)

The senior partner in a law firm discussed with two associates the fact that another lawyer in the firm might be engaged in misconduct and asked them to do some investigation. The government subpoenaed the associates to reveal what the senior partner told them. The appellate court concluded that the attorney client privilege applied. The associates were acting in their capacities as lawyers in their discussions with the senior partner – in effect, as in-house counsel.

Ralls v. United States, 52 F.3d 223 (9th Cir. 1995)

The attorney was paid by an individual to represent the defendant at a bond hearing and at an initial appearance. The government subpoenaed the attorney to the grand jury to disclose the identity of the fee-payor. The Ninth Circuit holds that the information was privileged in this case: “An examination of [the attorney’s] sealed affidavit leaves no doubt that the fee arrangements and the fee-payor’s identity are inextricably intertwined with confidential communications and fall within the attorney-client privilege.” The fee-payor sought the attorney’s advice regarding his involvement in the crime for which the client was arrested.

In re Grand Jury Subpoena (Horn), 976 F.2d 1314 (9th Cir. 1992)

Despite the fact the subpoena disclaimed any attempt to require the production of privileged information, because of the breadth of the request, it was unenforceable. The subpoena sought all financial information relating to sixteen of the attorney’s clients, without narrowing the specific financial information requested. “All financial information” would include retainer agreements which would set forth the nature of the work performed, as well as the strategy of the attorney.

In re Grand Jury Investigation (U.S. v. Corporation), 974 F.2d 1068 (9th Cir. 1992)

The corporation properly refused to produce certain documents, relying on the attorney-client privilege. The government failed, in its showing pursuant to United States v. Zolin, to establish the need for an in camera review by the district court of the documents to determine whether the crime-fraud exception applied. The Zolin court held that an in camera review is appropriate if the government can show a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime fraud exception applies. The court also held that the Zolin rule also applied with regard to other issues regarding the attorney client privilege, such as whether the privilege applied to the documents in the first place.

United States v. de la Jara, 973 F.2d 746 (9th Cir. 1992)

In order to determine whether a letter from an attorney to a client falls within the crime-fraud exception, the government may seek an in camera review of the letter, but must first establish, using non-privileged evidence “sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.” Even though the government already had seized the document, this requirement of United States v. Zolin applies. Here, the government relied only on the document itself. This was an inadequate showing. The court concluded, however, that the defendant waived the privilege by failing to protest its seizure and request the return of the document for the six months between the seizure and the trial.

Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988)

The Ninth Circuit continued its conservative trend with respect to subpoenas to attorneys holding that an IRS subpoena directed to a lawyer for information regarding fees paid by his clients who are under investigation for tax violations would not violate the attorney-client privilege. Here, the court rejects dictum in the oft-cited case of United States v. Hodge & Zweig, 548 F.2d 1347, which had held that fee information would be privileged if disclosure was likely to “implicate the client in the very criminal activity for which legal advice was sought.”

In re Grand Jury Subpoenas, 803 F.2d 493 (9th Cir. 1986)

The Ninth Circuit holds that a client’s identity and fee arrangement are not privileged unless the identity of the defendant is, in substance, a confidential communication in the professional relationship between the attorney and client. This case represents a departure by the Ninth Circuit from its earlier decisions which had held that the identity and fee arrangement may be privileged in more circumstances than those listed here.

In re Grand Jury Matter No. 91-01386, 969 F.2d 995 (11th Cir. 1992)

The last link exception to the rule that client identification is not generally within the attorney-client privilege is inapplicable in a case where the attorney has received a counterfeit bill and the grand jury is asking who paid the attorney that money.

United States v. Leventhal, 961 F.2d 936 (11th Cir. 1992)

Attorneys must file an 8300 Form upon receipt of more than $10,000 in currency from a client.

In re Grand Jury Proceedings 90-2 (Garland), 946 F.2d 746 (11th Cir. 1991)

The last link exception survives in the Eleventh Circuit. The attorney was subpoenaed to the grand jury to reveal the identity of the client who asked the attorney to find another lawyer for his “friend” who had just been arrested. The attorney refused to identify the client. The attorney was held in contempt. The Eleventh Circuit reversed. This is a case in which the disclosure of the name would be the last link of incriminating evidence against the client. What he told the attorney was already known to the prosecutor – only his identity remained confidential. And so it should remain, the Eleventh Circuit decided.

In re Federal Grand Jury Proceedings, 89-10 (MIA), 938 F.2d 1578 (11th Cir. 1991)

An attorney was subpoenaed to produce memoranda to the grand jury which was investigating one of his clients. The memoranda memorialized prior conversations between the attorney and the client which arguably came within the crime-fraud exception to the privilege. However, the memoranda themselves were not prepared during the course of the client’s crime. That is, though the initial communication between the attorney and the client were not privileged, the attorney’s subsequent communication with the client, which referred to those prior conversations was privileged. “The attorney-client privilege protects communications rather than information. . . Thus, although communications otherwise covered by the attorney-client privilege lose their privileged status when used to further a crime or fraud, post-crime repetition or discussion of such earlier communications, made in confidence to an attorney, may still be privileged even though those earlier communications were not privileged because of the crime-fraud exception.”

In re Grand Jury Proceedings 88-9 (Newton), 899 F.2d 1039 (11th Cir. 1990)

An attorney was subpoenaed to appear before a grand jury and to bring financial documents relating to an unidentified client. The government, unaware of the identity of the client, sought information relating to a particular cashiers check received by the attorney. The attorney claimed that the subpoena violated the Sixth Amendment right of his client as well as the attorney/client privilege. The Eleventh Circuit rejects both arguments. This information would not provide the “last link in the discovery of the client’s identity, nor would it violate the defendant’s Sixth Amendment right to counsel because there is nothing in the record to indicate that the disclosure of this information would result in the severance of the attorney/client relationship between the client and the subpoenaed attorney.”

In re Sealed Case, 107 F.3d 46 (D.C.Cir. 1997)

Counsel provided advice to a company about election finance laws. A vice president then violated the law. This did not make the attorney’s advice subject to the crime fraud exception, because the attorney was giving advice to the company, not the vice president and the company could insist on maintaining the privilege. Also, the government failed to prove that the vice president intended to violate the law when the legal advice was provided. The crime fraud exception only applies if the client’s fraudulent or criminal intent existed at the time the privileged communication was provided.

In re Sealed Case, 29 F.3d 715 (D.C.Cir. 1994)

In additional to the joint defense privilege, there is also a “common interest privilege.” This privilege protects communications between a lawyer and two or more clients regarding a matter of common interest. See In re Auclair, 961 F.2d 65 (5th Cir. 1992)(privilege applies if persons consult an attorney together as a group with common interests seeking common representation). In such cases, one client cannot unilaterally waive the privilege.

United States v. White, 887 F.2d 267 (D.C.Cir. 1989)

The defendant explained to government investigators that prior to hiring his co-defendant, an official convicted of bribery, he had gone to his attorney and thoroughly reviewed the matter. Having gone to his attorney in good faith, the defendant did not waive his right to the attorney/client privilege since he was seeking an opinion as to the legality of conduct which was not clear to a lay person.

In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989)

A defense contractor received a grand jury subpoena and turned to its attorney for advice. The document containing this advice was privileged even though it contained financial data which had been or would soon be reported to the IRS. This is not a case in which “details” which underlie information given to counsel with the expectation that it will be revealed to others is being sought by the grand jury. Here, in contrast, the government sought to demonstrate that the target altered the books on counsel’s advice after the investigation began.

United States v. Gertner, 873 F.Supp. 729 (D.Mass. 1995)

The IRS could not enforce a summons to obtain the identity of a client in this IRS 8300-form proceeding. The attorney established that there was a pending case involving the fee-payor. In this circumstance, the identity of the fee payor would incriminate the client. The First Circuit affirmed on the grounds that the IRS failed to comply with the required John Doe summons procedure. 65 F.3d 963 (1st Cir. 1995).

In re Grand Jury Subpoena (DeGuerin), 752 F.Supp. 239 (S.D. Tex. 1991)

After remand from the Fifth Circuit, the District Court again allowed the attorney to claim the privilege and refuse to disclose the identity of the fee-payor because the fee-payor was the attorney’s client and the fee arrangements were part of their confidential communications. The Fifth Circuit affirmed: 926 F.2d 1423 (5th Cir. 1991).