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Keywords

attorneyappealattorney-client privilege
attorneylawyerappealseizureattorney-client privilege

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In re Impounded Case (Law Firm), 879 F.2d 1211, 28 Fed. R. Evid. Serv. 974

Facts

In 1985, a law firm was served with a search warrant allowing the government to seize certain files as part of a criminal investigation. The law firm sought to prevent the inspection of these documents, arguing that the search warrant was overbroad and violated the Fourth Amendment. Initially, the District Court granted the firm relief, but this was later reversed by the Court of Appeals, which found the warrant was not overbroad. The case was remanded for further proceedings, including the application of the crime-fraud exception to the attorney-client privilege.

In 1985, in a miscellaneous criminal proceeding, the law firm involved in these appeals was served with a search warrant authorizing the search of its office and the seizure of certain identified files and other material.

Issue

Does the crime-fraud exception to attorney-client privilege apply when the alleged criminality being investigated is solely that of the law firm?

The first issue posed by this appeal from the order of December 5, 1988, is the legality of the application of the crime-fraud exception to a situation where the attorney-client privilege and the privilege derived from the work product doctrine are asserted when the alleged criminality being investigated is solely that of the law firm.

Rule

The crime-fraud exception applies to attorney-client privilege and work product privilege when the attorney, rather than the client, is the subject of a criminal investigation, and if the client is not implicated in criminal conduct, the privilege remains unless the document is pertinent to accusations against the attorney alone.

The crime-fraud exception applies to attorney-client privilege and to work product privilege where counsel, rather than client, is the object of criminal investigation, and if client is not implicated in criminal conduct, privilege obtains unless document is pertinent to accusation of criminal activity by counsel alone.

Analysis

The court determined that allowing an attorney to assert privilege to shield their own alleged criminal conduct undermines the search for truth. The court emphasized that the crime-fraud exception should apply in cases where the attorney is the sole subject of the investigation, thereby allowing the government to access documents that may reveal criminal activity by the attorney, while still protecting client interests where applicable.

It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client's privilege with respect to documents tending to show criminal activity by the lawyer.

Conclusion

The Court of Appeals vacated the previous judgments and remanded the case for further proceedings, allowing the law firm to raise privilege challenges regarding the seized documents.

Vacated and remanded.

Who won?

The government prevailed in the case as the Court of Appeals ruled that the crime-fraud exception applied, allowing for the inspection of the seized documents.

The government has moved to dismiss the law firm's appeal from the district court's order granting judgment to the government in the civil action.

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