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Ninth Circuit:
Privilege Log May Be Shielded if Fifth Amendment Applies
Opinion Says Attorney Cannot Be Ordered to Produce Ledger of Papers, Which Were Shared by Client for Purpose of Legal Advice, if Production Would Implicate Client’s Right Against Self-Incrimination
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held yesterday that an attorney cannot be ordered to provide the government with a so-called “privilege log”—or ledger of information that has been withheld under an assertion of privilege—listing documents covered by a client’s Fifth Amendment right against self-incrimination which were shared with the lawyer for the purpose of obtaining legal advice.
At issue is the interplay of the attorney-client privilege and the represented party’s Fifth Amendment rights, first addressed in the 1976 U.S. Supreme Court decision in Fisher v. United States.
In an opinion authored by then-Justice Byron White (now deceased), the court in Fisher held that when the Fifth Amendment protects a party from the compelled production of documents and the individual shares those documents with his lawyer to obtain legal advice, the attorney-client privilege shields the advocate from being forced to turn those files over to the government.
Yesterday’s opinion, authored by Circuit Judge Michelle T. Friedland, addresses the novel question of whether an attorney may be compelled to provide the government with a privilege log of documents that he asserts are protected under Fisher. Friedland wrote:
“We hold that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies. To determine whether the requirements for Fisher protection are in fact satisfied, a district court will generally need to conduct an in camera review. Because the district court here ordered a privilege log to be provided to the Government without any such prior process, we reverse and remand.”
Circuit Judge Roopali H. Desai and Senior District Court Judge Karen E. Schreier of the District of South Dakota, sitting by designation, joined in the opinion.
Grand Jury Subpoena
The question arose after a grand jury issued a subpoena to an individual (identified in the opinion as “Client” due to the fact that the record and briefs at issue are under seal) who was the target of a criminal investigation into an alleged tax-evasion scheme.
After the client invoked his Fifth Amendment privilege against self-incrimination and declined to testify or produce any documents, the grand jury subpoenaed his attorneys (referred to in the decision as “Law Firm”), instructing the lawyers to provide a privilege log if they withheld any documents.
Asserting that even a ledger would violate their client’s Fifth Amendment rights, the law firm declined to produce certain of the requested documents and to provide a privilege log. The government moved to compel the lawyers to provide the log, arguing that any assertions of privilege could not be evaluated without the ledger.
Client intervened in the matter and asserted that his lawyers could invoke his Fifth Amendment right to preclude the production of the ledger.
District Court Judge Fernando M. Olguin of the Central District of California ruled that the attorneys could not invoke a client’s Fifth Amendment right against self-incrimination and ordered the firm to provide the privilege log. Olguin temporarily stayed enforcement of the order, and the client filed an interlocutory appeal.
Friedland said “we have jurisdiction to review an interlocutory appeal challenging a subpoena directed at an individual’s former attorneys, who are ‘third-party custodian[s] of [the individual’s] privileged documents.’ ”
Fifth Amendment Protections
The jurist noted that the Fifth Amendment protections “can extend to the ‘act of producing evidence in response to a subpoena’ because the act of production has ‘communicative aspects of its own,’ ” as turning over files in compliance with a subpoena is an admission that the documents exist, are in the party’s possession, and are authentic.
She wrote:
“The Fifth Amendment does not protect the act of production, however, if the foregone-conclusion exception applies. That exception is triggered when the government already has ‘independent knowledge of three elements: the documents’ existence, the documents’ authenticity[,] and respondent’s possession or control of the documents.’….In that situation, ‘the [respondent] adds little or nothing to the sum total of the [g]overnment’s information by conceding that he in fact has the papers.’ ”
Citing Fisher, Friedland acknowledged that “because the Fifth Amendment protects against self-incrimination, an attorney cannot invoke a client’s Fifth Amendment privilege” but said:
“[A]n attorney can, however, resist producing documents under the attorney-client privilege if a client transferred those documents to the attorney ‘for the purpose of obtaining legal advice,’ and the documents would have been privileged were they still in the client’s hands….Any contrary rule would make a client ‘reluctant to confide in his lawyer’ and undermine the attorney-client privilege’s purpose of ‘encourag[ing] clients to make full disclosure to their attorneys.’ ”
Privilege Log
She continued:
“But that does not answer the precise question before us. Although Fisher held that an attorney may not be compelled to produce privileged documents, Fisher does not address whether an attorney may be compelled to provide the Government with a privilege log identifying those documents.”
Saying that turning over the log would “reveal the existence, authenticity, and Client’s custody of those documents,” Friedland opined:
“If the Government were to receive a privilege log from Law Firm and then subpoena Client for the documents described in that privilege log, the documents would be subject to the foregone-conclusion exception, and Client would no longer be able to assert the act-of production privilege….Put simply, were Law Firm to provide the Government with a privilege log detailing documents to which the Fisher privilege applies, Client would lose any Fifth Amendment right to decline to produce the documents identified therein.”
Independent Knowledge
Unpersuaded by the government’s contention that the privilege log would not constitute the type of “independent knowledge” required to establish the foregone-conclusion exception, the judge said:
“The ‘independent knowledge’ requirement derives from the idea that the Fifth Amendment protects against self-incrimination….When the government’s knowledge of the existence, authenticity, and individual’s custody of documents is not obtained from or with the assistance of the individual invoking his Fifth Amendment right, that knowledge is considered ‘independent.’….Here, were the Government to subpoena Client, and were Client to invoke the act-of-production privilege in response, the Government could use independent knowledge to establish the foregone-conclusion exception and defeat that privilege. That independent knowledge would be the information from the privilege log, which would have been obtained from Law Firm, not Client.”
The court also rejected the argument that the foregone-conclusion exception would not apply because the information would be obtained after the subpoena was issued to the client. Friedland wrote:
“That may be correct as to the initial subpoena, but the Government does not explain why it could not rely on Law Firm’s privilege log to issue a new subpoena to Client. If the Government were to subpoena Client again, a court conducting the foregone-conclusion analysis would consider all the information that the Government possessed at the time the new subpoena issued. Because that information would include Law Firm’s privilege log, the foregone conclusion exception would then apply to the documents sought in the new subpoena that were identified in the privilege log.”
Bare Assertions
She remarked:
“On remand, the district court need not accept Client’s and Law Firm’s bare assertions that the documents in Law Firm’s possession are protected under Fisher….
“In assessing Law Firm’s claims of privilege, the district court must consider whether the documents were transferred ‘for the purpose of obtaining legal advice.’…The district court must also consider whether the documents would have been privileged while still in Client’s hands.”
She added:
“For any documents that satisfy Fisher’s requirements, Law Firm cannot be compelled to provide the Government with a privilege log because doing so would undermine Client’s Fifth Amendment right against self-incrimination and the attorney-client privilege. Law Firm may be required, however, to produce all other documents to the Government or at least provide a privilege log explaining any other valid basis for withholding production.”
The case is In Re Grand Jury Subpoena, dated July 21, 2023, 24-2506.
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