Logged Out
The United States Court of Appeals for the Ninth Circuit declined to require a law firm to provide the government with a privilege log of documents allegedly protected by the attorney-client privilege
We consider here the novel question whether an attorney may be compelled to provide the government with a privilege log of documents that he asserts are protected under Fisher. 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.
The client went before a grand jury and invoked the Fifth Amendment; a subpoena was issued to the law firm that had provided tax advice to the client
The Government moved to compel Law Firm to provide a privilege log, arguing that Law Firm’s claims of privilege could not otherwise be evaluated. Client intervened and argued that Law Firm could decline to provide the Government with a privilege log by invoking Client’s Fifth Amendment right. The district court held that Law Firm could not assert Client’s Fifth Amendment right and ordered Law Firm to provide the Government with a privilege log. The district court temporarily stayed enforcement of its order granting the Government’s motion to compel.
Client timely filed an interlocutory appeal.
The court
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.
To protect Client’s Fifth Amendment right and the attorney-client privilege, we hold that the district court may not require Law Firm to provide the Government with a privilege log of documents protected under Fisher.
On remand, the court does not rely on “bare assertions” of privilege
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.” Fisher, 425 U.S. at 404; see also In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021) (recognizing that, in the tax context, some attorney-client communications may not be 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. Fisher, 425 U.S. at 405. 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.
(Mike Frisch)