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Keywords

attorneysubpoenaappealtestimonygrand jury

attorneyappeal

Related Cases

In re Green Grand Jury Proceedings, 492 F.3d 976

Facts

The case arose from a grand jury investigation into whether a client received improper payments. The client provided a false explanation to his attorney, who relied on this explanation to formulate legal advice. The government issued subpoenas to the attorney and his law firm, seeking documents and testimony, arguing that the attorney-client and work product privileges were vitiated by the client's alleged fraud. The district court reviewed the documents and determined that some were generated in furtherance of the fraud, while allowing the attorney to assert work product privilege for his opinion work product.

In the course of earlier, unrelated proceedings, the client was the target of an investigation into whether he had received improper payments. The client received the assistance of the attorney in responding to these accusations and provided the attorney with an alternate, non-criminal explanation for his conduct.

Issue

The main legal issues were whether the attorney could assert work product privilege for his opinion work product and whether the crime-fraud exception applied to the attorney-client and work product privileges.

Rule

The court ruled that an attorney who does not knowingly participate in a client's crime or fraud may assert work product privilege for his opinion work product, while the crime-fraud exception requires disclosure of documents generated in furtherance of the fraud.

Analysis

The court applied the crime-fraud exception to determine that the client could not assert the attorney-client or work product privileges because the government presented a prima facie case that the client used the attorney's services to further a fraud. However, since there was no evidence that the attorney was aware of the client's fraudulent intent, he could assert work product privilege for his opinion work product. The court distinguished between ordinary work product and opinion work product, granting greater protection to the latter.

Conclusion

The Court of Appeals affirmed the district court's decision, allowing the attorney to withhold his opinion work product but requiring the disclosure of certain documents related to the fraud.

Who won?

The government prevailed in part, as the court required the attorney to disclose 36 documents generated in furtherance of the fraud, while the attorney retained the privilege for his opinion work product.

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Keywords

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