United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2008 Decided June 6, 2008
No. 07-3072
IN RE: GRAND JURY (ATTORNEY-CLIENT PRIVILEGE)
Appeal from the United States District Court
for the District of Columbia
(No. 07mc00197)
Barry Coburn argued the cause for appellant. With him on
the briefs was Gloria Solomon.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese III and Virginia Cheatham,
Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: A grand jury is investigating a
psychiatrist who may have billed Medicaid for services he did
not provide. In an attempt to exonerate his client, the doctor’s
attorney showed patient records to the Assistant U.S. Attorney
and FBI special agent investigating the matter. The government
made and kept copies of these documents. The originals
remained in the possession of the attorney. Several days later,
2
the government served a subpoena on the attorney, seeking the
original documents for forensic ink analysis in order to
determine whether they were created at a later date than
indicated on the documents. The doctor joined the attorney’s
motion to quash, claiming that attorney-client privilege
protected the documents. The district court denied the motion.
We affirm.
Attorney-client privilege applies to a document a client
transfers to his attorney “for the purpose of obtaining legal
advice.” Fisher v. United States, 425 U.S. 391, 404-05 (1976).
“When the client himself would be privileged from production
of the document . . . as exempt from self-incrimination, the
attorney having possession of the document is not bound to
produce.” Id. at 404 (quoting 8 J. WIGMORE, EVIDENCE § 2307,
p. 592 (McNaughton rev. 1961)). Here, the district court
assumed without deciding that the doctor gave his records to his
attorney for the purpose of obtaining legal advice. The court
then held that requiring the doctor’s attorney to produce these
records would not violate the doctor’s privilege against self-
incrimination. On appeal, the doctor and the government
dispute whether this holding was correct, but they ignore a
question the government raised before the district court: whether
attorney-client privilege applies to the documents at all.
Sharing the doctor’s records with the government destroyed
whatever attorney-client privilege might have attached to them.
See In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989);
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 79
(2000). There is no argument that the documents were shown
to the government without the doctor’s approval. It is of no
consequence that the doctor might have initially given the
documents to his attorney for the purpose of obtaining legal
advice.
3
Because the doctor has not met his burden of showing that
the attorney-client privilege applies to his records, see In re
Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998), it also is of no
consequence whether he would have had a Fifth Amendment
privilege not to produce the documents if they were in his
possession. The subpoena was directed not at the doctor, but at
his attorney. “Documents transferred from the accused to his
attorney are ‘obtainable without personal compulsion on the
accused,’ and hence the accused’s ‘Fifth Amendment privilege
is . . . not violated by enforcement of the [subpoena] directed
toward [his] attorneys. This is true whether or not the
Amendment would have barred a subpoena directing the
[accused] to produce the documents while they were in his
hands.’” In re Sealed Case, 162 F.3d 670, 675 (D.C. Cir. 1998)
(quoting Fisher, 425 U.S. at 398, 397) (alterations as in Sealed
Case).
Affirmed.