United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-30508
IN RE: GRAND JURY SUBPOENA
Appeal from the United States District Court
For the Middle District of Louisiana
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-Appellant in this sealed case (“Appellant”) appeals
the district court’s order that his former counsel (“Former
Counsel”) comply with a grand jury subpoena and the court’s order
denying Appellant’s motion to quash that subpoena.1 For the
following reasons, we VACATE the court’s orders, GRANT Appellant’s
motion to quash the grand jury subpoena, and REMAND.
BACKGROUND
On April 10, 2003, the police arrested Appellant after they
conducted a search of the house where he resided with his
girlfriend (“Witness”) and her minor child. The police acted on a
complaint that drug trafficking was occurring at Witness’s house.
1
Because this appeal involves stayed proceedings before a
grand jury and the briefs and record on appeal are under seal, we
employ pseudonyms.
With Witness’s permission to search her house, the police
discovered, on an upper closet shelf, a loaded pistol, a loaded
pistol clip, a bag of marijuana, money, and other drug
paraphernalia. Witness told police she had no idea how the pistol
got into her house. The police did not arrest Witness due to her
surprise at the discovery. While the police were still at her
house, Witness called Appellant and asked him to come home. When
Appellant arrived, he told the police that the pistol and the
marijuana were his; and the police placed him under arrest.
Shortly after Appellant’s arrest, Witness provided a sworn,
written statement to an ATF Agent in which she declared that she
did not know how the pistol got into her house and that she was
shocked to see the pistol and the marijuana. About a month later,
Witness testified before a federal grand jury for the Middle
District of Louisiana that her statement to the ATF Agent was true
and correct. On May 28, 2003, the grand jury returned a four-count
indictment against Appellant for possession of a firearm by a
convicted felon, possession of a firearm with an obliterated serial
number, possession with intent to distribute marijuana, and using
or carrying a firearm during and in relation to a drug trafficking
crime.
On June 10, 2003, the district court appointed Former Counsel
to represent Appellant.2 On March 12, 2004, shortly prior to his
2
Former Counsel never represented Witness.
2
scheduled trial date, Appellant informed the district court by a
filed letter that Former Counsel refused to present his defense in
a manner which Appellant approved. Appellant denied that the
firearm belonged to him, asserted that Former Counsel would not
allow him to defend himself, and stated that Former Counsel refused
to allow the owner of the firearm to come forward. That same day,
Former Counsel moved to withdraw. On March 16, 2004, the district
court granted Former Counsel’s motion to withdraw. The court then
appointed the Federal Public Defender to represent Appellant.
Shortly thereafter, the district court received an affidavit
dated March 15, 2004, in which Witness swore she lied when she told
the police that the pistol did not belong to her. In the
affidavit, Witness explained that she lied because she feared she
would lose custody of her minor child. Witness’s affidavit
initiated an investigation to determine whether Appellant and
Witness engaged in a conspiracy to violate the law or violated the
law by obstructing justice, committing perjury, or suborning
perjury. In mid-April 2004, Witness was informed of the
investigation.
On April 26, 2004, the government issued to Former Counsel a
grand jury subpoena for May 19, 2004, seeking his testimony and
“[a]ll written statements of [Appellant and Witness] and all notes,
records, and recordings of interviews of [Appellant and Witness].”
Former Counsel refused to appear before the grand jury unless he
was ordered to do so by the court; he alleged that the information
3
sought was protected by the attorney-client and work product
privileges.3
On April 27, 2004, Witness, after being advised of her rights
and waiving them, informed the Assistant United States Attorney
(“AUSA”) that the contents of her March 15, 2004, affidavit were
false. Witness stated that initially, when she met with Former
Counsel, she told him that the firearm and the contraband found at
her house did not belong to her and that she was unaware of their
presence. Witness admitted after she had several conversations
with Appellant, it was agreed she would execute an affidavit in
which she would change her story and state that the firearm
belonged to her. Witness explained Appellant and she had discussed
the potential sentence that each would face. Witness admitted that
she had discussed with Former Counsel the ramifications of changing
her story to claim ownership of the firearm. Witness admitted that
she asked Former Counsel about the penalty for committing perjury
and of the potential sentence Appellant could receive if he were
convicted of the firearm charge. Witness admitted that, after she
learned of the grand jury investigation which had been initiated by
3
Although no attorney-client privilege exists between Witness
and Former Counsel, and Appellant thus cannot assert the attorney-
client privilege to protect Witness’s communications with Former
Counsel, the work product privilege covers documents resulting from
communications between the attorney and a third party that relate
to trial or litigation strategy. See FED R. CIV. P. 26(b)(3); In re
Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994) (“[T]he
work product privilege belongs to both the client and the attorney,
either one of whom may assert it.”).
4
her March 15, 2004, affidavit, she refused to lie about the
firearm.
On April 28, 2004, the government filed an ex parte motion,
requesting that the district court compel Former Counsel to comply
with the grand jury subpoena. The government explained that the
grand jury was investigating whether Appellant and Witness violated
the law and whether they sought the assistance and advice from
Former Counsel to do so. The government alleged that the crime-
fraud exception to the attorney-client and work product privileges
justified an order for Former Counsel to comply with the grand jury
subpoena.
The government supported its motion to compel with an
affidavit prepared by an AUSA. The AUSA swore that the facts
provided a strong basis for the district court to find Witness had
committed perjury and Appellant had aided and abetted the crime.
The AUSA also swore that the facts indicated Former Counsel had
refused to participate in Appellant’s attempt to solicit perjured
testimony and to perpetuate a fraud upon the court. The government
also submitted as exhibits: Witness’s initial affidavit before the
ATF Agent, a transcript of Witness’s testimony before the grand
jury, Appellant’s letter requesting new counsel, Witness’s second
affidavit, Witness’s waiver before the AUSA, and the subpoena
issued to Witness to appear before the grand jury a second time.
Based on the AUSA’s affidavit, the district court, in language
5
tracking the grand jury subpoena, ordered Former Counsel to appear
with all written statements and recordings from Appellant and
Witness for an in camera examination in chambers.
Prior to Former Counsel’s in camera examination, the AUSA
filed a supplemental affidavit. There, the AUSA swore Witness
admitted to the grand jury that her original statements to the ATF
Agent and the grand jury denying ownership of the firearm were true
and correct; that her March 15, 2004, affidavit was false; and that
Witness and Appellant agreed Witness would lie by stating the
pistol belonged to her, in an effort to help Appellant.
The district court examined the AUSA’s affidavits and exhibits
and conducted an in camera examination with Former Counsel. The
court found the government met its prima facie case by showing
that, during Former Counsel’s representation of Appellant,
Appellant and Witness were committing or intending to commit a
crime or fraud and that Appellant’s and Witness’s communications
with Former Counsel were in furtherance of that crime or fraud.
The district court concluded the crime-fraud exception applied and
ordered, in language tracking the grand jury subpoena, Former
Counsel to comply with the subpoena. The court additionally
ordered that Former Counsel should not assert the attorney-client
or work product privilege as grounds for refusing to comply with
the subpoena.
Appellant moved to quash Former Counsel’s grand jury subpoena.
6
Appellant argued that Former Counsel’s testimony, the documents,
and the other items sought by the government were protected from
disclosure by the attorney-client, work product, and Fifth
Amendment privileges and were not subject to disclosure under the
crime-fraud exception. Appellant asserted that his letter
regarding Former Counsel’s ineffective representation and Witness’s
inconsistent statements were not sufficient to establish the crime-
fraud exception applied. Appellant also argued that Former
Counsel’s grand jury subpoena was overly broad; Appellant disagreed
that all his communications with Former Counsel were subject to
disclosure and were no longer protected by the attorney-client and
work product privileges. Appellant contended that Witness’s and
his communications with Former Counsel, and Former Counsel’s notes
of these communications, made in connection with Appellant’s
defense to the charges in the indictment were legitimate and thus
protected. That is, Appellant argued the government needed to
identify each communication and document subject to disclosure and
establish how the crime-fraud exception applied to the particular
item.
The government opposed Appellant’s motion to quash, arguing
that Appellant’s Fifth Amendment privilege against self-
incrimination was not applicable. With respect to Appellant’s
attorney-client and work product privilege arguments, the
government responded that it had shown, through the documents
previously submitted to the district court, that the crime-fraud
7
exception applied. The government did not respond to Appellant’s
overbreadth argument.
The district court denied Appellant’s motion to quash, finding
that the government had made a prima facie showing that: (1) during
Former Counsel’s representation of Appellant, Appellant and Witness
were committing or intending to commit a crime or fraud and that
Appellant’s and Witness’s communications with Former Counsel were
in furtherance of that crime or fraud; and (2) Appellant’s Fifth
Amendment privilege against self-incrimination would not be
implicated by Former Counsel’s compliance with the grand jury
subpoena.4 The court concluded that the government established the
applicability of the crime-fraud exception to the attorney-client
and the work product privileges and, in language tracking the grand
jury subpoena, ordered Former Counsel to comply with the subpoena.
The court again ordered that Former Counsel should not assert the
attorney-client or work product privilege as grounds for refusing
to comply with the subpoena.
Appellant timely appealed the district court’s orders
compelling Former Counsel to comply with the grand jury subpoena
and denying Appellant’s motion to quash. Appellant moved the
district court to stay the execution of its orders pending appeal;
the court granted the stay.
DISCUSSION
4
Appellant has not appealed this Fifth Amendment issue.
8
Whether the district court’s finding that the government made the
prima facie showing necessary to establish the crime-fraud
exception to the attorney-client and work product privileges was
clearly erroneous.
“Under the crime-fraud exception to the attorney-client
privilege, the privilege can be overcome where communication or
work product is intended to further continuing or future criminal
or fraudulent activity.” United States v. Edwards, 303 F.3d 606,
618 (5th Cir. 2002) (internal quotation marks and citations
omitted). The government bears “the burden of establishing a prima
facie case that the attorney-client relationship was intended to
further criminal or fraudulent activity.” Id. (internal quotation
marks and citations omitted). “Because the application of the
attorney-client privilege is a fact question to be determined in
light of the purpose of the privilege and guided by judicial
precedents, we review the district court’s finding [that the crime-
fraud exception applies] for clear error only.” Id. (citation
omitted). The work product privilege is subject to the same crime-
fraud exception. In re Burlington N., Inc., 822 F.2d 518, 524-25
(5th Cir. 1987) (citing, amongst others, In re Int’l Sys. &
Controls Corp. Sec. Litig., 693 F.2d 1235, 1242 (5th Cir. 1982)).
The government submitted the following items in support of its
ex parte motion to compel Former Counsel’s compliance with the
grand jury subpoena: the AUSA’s affidavit, Witness’s initial
affidavit before the ATF Agent, a transcript of Witness’s testimony
9
before the grand jury, Appellant’s letter requesting new counsel,
Witness’s second affidavit, Witness’s waiver before the AUSA, and
the subpoena issued to Witness to appear before the grand jury a
second time. Based on its review of the AUSA’a affidavit, the
district court found that an in camera examination of Former
Counsel was appropriate in order for the court to determine whether
the crime-fraud exception applied. The district court, in language
tracking the grand jury subpoena, ordered Former Counsel to appear
with all written statements and recordings from Appellant and
Witness for an in camera examination in chambers. Before the
district court’s in camera examination, the government also
submitted a supplemental affidavit by the AUSA describing Witness’s
second appearance before the grand jury, where she recanted the
false affidavit that Appellant and she had agreed she would
execute.
In United States v. Zolin, 491 U.S. 554 (1989), the Supreme
Court considered and countenanced the procedure by which district
courts should determine in their discretion whether to hold an in
camera examination in the context of the crime-fraud exception.
Id. at 564-65, 568, 572. Before a district court engages in an in
camera examination to determine the applicability of the crime-
fraud exception, the court “should require a showing of a factual
basis adequate to support a good faith belief by a reasonable
person.” Id. at 572 (internal quotation marks and citation
10
omitted).
Appellant does not argue that the government’s initial showing
was insufficient to warrant an in camera examination; he does not
allege that the district court abused its discretion by conducting
an in camera examination of Former Counsel and the statements and
records he brought to the examination.5 Thus, that issue is
waived.6
What Appellant argues is that the government ultimately did
not meet its prima facie showing that any of Witness’s or his
communications with Former Counsel were made for the specific
purpose of furthering a crime or fraud. Appellant asserts that his
letter, regarding Former Counsel’s ineffective assistance, and
Witness’s inconsistent statements in her affidavits and grand jury
testimony are not sufficient to show their communications with
Former Counsel were intended to further an ongoing or future crime
of perjury or obstruction of justice. In response, the government
argues the district court’s finding was not clearly erroneous. The
government contends the district court’s finding that it made the
requisite prima facie showing was proper based on the AUSA’s
5
What precisely Former Counsel brought with him to the in
camera examination is not reflected in the record, only that he
did not bring his “entire file” on Appellant.
6
See United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992) (“Only issues that are specified and briefed are properly
before the appellate court.”); see also Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (noting same).
11
affidavits and exhibits and the district court’s in camera
examination of Former Counsel.
“In order to invoke [the crime-fraud] exception, the party
seeking to breach the walls of privilege must make out a prima
facie case.” Int’l Sys., 693 F.2d at 1242. To make the necessary
prima facie showing for the application of the crime-fraud
exception here, the government must produce evidence “such as will
suffice until contradicted and overcome by other evidence . . . a
case which has proceeded upon sufficient proof to that stage where
it will support [a] finding if evidence to the contrary is
disregarded.” Id. (applying prima facie definition to work product
privilege and quoting In re Grand Jury Proceedings in the Matter of
Fine, 641 F.2d 199, 203 (5th Cir. 1981) (applying prima facie
definition to attorney-client privilege)). Allegations in
pleadings are not evidence and are not sufficient to make a prima
facie showing that the crime-fraud exception applies. Int’l Sys.,
693 F.2d at 1242.7
7
International Systems involved a situation where the
corporate defendant’s management commissioned a special accounting
review to investigate past and present questionable practices. 693
F.2d at 1237. The defendant opposed the plaintiffs’ motion to
compel production of its special review binders by asserting the
attorney-client and work product privileges; the district court
ordered production. Id. at 1238. There, we read the district
court as only addressing work product immunity. Id. This Court
explained:
The courts have evolved a two element test for a prima
facie showing:
12
Based on the government’s submitted affidavits and exhibits
and the in camera examination of Former Counsel, the district court
First there must be a prima facie showing of a violation
sufficiently serious to defeat the work product
privilege. Second, the court must find some valid
relationship between the work product under subpoena and
the prima facie violation.
Id. at 1242 (citations omitted). The first part of the test is
alternatively stated as requiring a showing that “the client was
engaged in ongoing fraudulent activity when the work product was
sought or produced.” Id. at 1242-43. The second part of the test
is alternatively stated as requiring “a showing that the [work
product] material ‘reasonably relate[s] to the fraudulent
activity.’” Burlington N., 822 F.2d at 525 n.5 (quoting Int’l
Sys., 693 F.2d at 1243). Although we acknowledged in International
Systems “it could be argued that a prima facie case of ongoing
fraud was . . . established,” and “[t]he special review binders
clearly have a reasonable relation to this ongoing fraud,” we
ultimately determined that “the court should require some proof of
specific intent by management in the development of the work
product documents.” 693 F.2d at 1243. The plaintiffs’ allegations
of fraud, though detailed, were thus not enough to meet the first
element of their prima facie showing that the crime-fraud exception
applied in a case involving “the modern corporate world . . .
[where] shady practices may occur without directors’ and officers’
knowledge.” Id. at 1242-43.
In International Systems, collapsing the initial prima facie
showing that “the client was engaged in ongoing fraudulent activity
when the work product was sought or produced” with the additional
showing that the “work product must reasonably relate to the
fraudulent activity” made sense on a record where only limited and
specific accounting binders were ordered to be produced. See id.
at 1242-43. However, in a case where the grand jury subpoena at
issue does not limit itself to any particular conversations or
documents, it is not feasible to undertake the second part of the
prima facie inquiry outlined in International Systems and later
cited in Burlington Northern. Thus, in a case as presented here,
where there is no discernible limit to the subpoena or discovery
request at issue, a prima facie showing is made if the party
seeking the otherwise privileged materials produces sufficient
evidence that during the attorney-client relationship, the client
intended to further a future or ongoing crime or fraud. See
Edwards, 303 F.3d at 618.
13
found that the government had made a prima facie showing that
during Former Counsel’s representation of Appellant, Appellant and
Witness were committing or attempting to commit a crime or fraud
and that their communications with Former Counsel were in
furtherance of that crime or fraud. Thus, the court found that the
crime-fraud exception to the attorney-client and work product
privileges was established and ordered Former Counsel to comply
with the subpoena.
A finding is not clearly erroneous if it is “plausible in
light of the record as a whole.” Edwards, 303 F.3d at 645
(internal quotation marks and citation omitted). The government’s
submitted evidence showed that Appellant and Witness agreed Witness
would make sworn statements in an affidavit contradictory to her
prior sworn statements and grand jury testimony. The evidence also
showed that Appellant and Witness obtained information from Former
Counsel concerning the plausibility of their plan and the potential
penalties each faced. Thus, the district court found the
government made a prima facie showing that during the course of
Former Counsel’s representation of Appellant, Appellant and Witness
used Former Counsel to obtain legal advice which would assist them
in obstructing the criminal proceedings and perpetuating a fraud.
In light of the record as a whole, this Court finds the district
court’s finding that the crime-fraud exception applied during the
course of Former Counsel’s representation of Appellant was not
14
clearly erroneous.
Whether the district court overbroadly interpreted the scope of the
crime-fraud exception.
To put this issue in context, the district court’s orders
compelling Former Counsel to comply with the grand jury subpoena
and denying Appellant’s motion to quash that subpoena employed the
following language, which substantially mirrored that of the
subpoena at issue:
IT IS ORDERED that [Former Counsel] shall comply with the
grand jury subpoena which commands him to appear and
testify before the Grand Jury for the Middle District of
Louisiana on May 19, 2004, and bring with him all written
statements of [Appellant] and [Witness] and all notes,
records[,]8 and recordings of interviews of [Appellant]
and [Witness], and that he shall not assert the attorney-
client or the work product privileges as a basis for not
complying with said subpoena.
(Footnote added).
Appellant argues, even if the crime-fraud exception applies,
the attorney-client and work product privileges were not abrogated
with respect to all of Witness’s and his statements to and
communications with Former Counsel during the slightly longer than
nine months that Former Counsel represented Appellant. According
to Appellant, not all statements and communications are properly
subject to the grand jury subpoena issued to Former Counsel because
many statements and communications not subject to the crime-fraud
exception remain protected by the privileges. Appellant cites
8
The district court’s order denying Appellant’s motion to
quash omits this comma.
15
Burlington Northern for the proposition that the district court
cannot, in Appellant’s words, “paint with too broad a brush stroke”
to reach all statements and communications between Appellant and
Former Counsel and between Witness and Former Counsel, but instead
must narrow its focus in applying the crime-fraud exception “to the
specific purpose of the particular communication or document.” 822
F.2d at 525. Appellant contends that the government did not
establish a prima facie case “vis-a-vis each specific communication
that [Appellant’s] purpose in seeking the legal advice and making
the communication was to further continuing or future criminal or
fraudulent activity.” Appellant asserts the government cannot
establish that every communication between Former Counsel and him
and between Former Counsel and Witness was made to further an
ongoing or future crime or fraud. Thus, Appellant argues that the
district court’s orders compelling Former Counsel to appear before
the grand jury with all written statements, notes, records, and
recordings pertaining to communications with Appellant and Witness
are overly broad and should be vacated.
In response, the government argues that the district court’s
orders compelling Former Counsel’s compliance with the grand jury
subpoena are not overly broad because, once the prima facie showing
is made that the crime-fraud exception applies, the attorney-client
and work product privileges no longer exist. That is, the
privileges disappear as to all communications relative to the
16
subject of the consultation. The government asserts that the
crime-fraud exception permits disclosure of “any communications
between the attorney and client if the client seeks advice from the
attorney in carrying out a crime or fraud.” See Grand Jury
Proceedings, 43 F.3d at 972.
The attorney-client privilege is recognized as “the oldest of
the privileges for confidential communications known to the common
law.” Zolin, 491 U.S. at 562 (quoting Upjohn Co. v. United States,
449 U.S. 383, 389 (1981)); see also Edwards, 303 F.3d at 618
(describing the attorney-client privilege as “most venerated”).
The central concern of this longstanding privilege is “to encourage
full and frank communication between attorneys and their clients
and thereby promote broader public interests in the observance of
law and administration of justice.” Zolin, 491 U.S. at 562
(quoting Upjohn, 449 U.S. at 389). Clients must “be free to make
full disclosure to their attorneys of past wrongdoings . . . in
order that the client may obtain the aid of persons having
knowledge of the law and skilled in its practice.” Zolin, 491 U.S.
at 562 (internal quotation marks and citations omitted). However,
the reasons for protecting the “confidences of wrongdoers” “ceas[e]
to operate at a certain point, namely, where the desired advice
refers not to prior wrongdoing, but to future wrongdoing.” Id. at
562-63 (internal quotation marks and citations omitted). Zolin
makes clear: “It is the purpose of the crime-fraud exception to
17
the attorney-client privilege to assure that the ‘seal of secrecy,’
. . . between lawyer and client does not extend to communications
‘made for the purpose of getting advice for the commission of a
fraud’ or crime.” Id. at 563 (citations omitted and emphasis
added).
The strong policy concerns behind the work product privilege
have been similarly recognized:
The privilege exists to encourage full disclosure of
pertinent information by clients to their attorneys. Its
protection extends to past criminal violations. The
rationale for this is that the client, given the nature
of our adversary system, has a legitimate interest in
securing informed representation without fear of forced
disclosure.
Int’l Sys., 693 F.2d at 1242 (internal citation omitted). The
privilege serves to protect the interests of clients and their
attorneys in preventing disclosures about the case, id., “by
shielding the lawyer’s mental processes from his adversary,” In re
Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000). But a
client “has no legitimate interest in seeking legal advice in
planning future criminal activities.” Int’l Sys., 693 F.2d at
1242. Therefore, the crime-fraud exception “comes into play if the
client consults an attorney for advice that will assist the client
in carrying out a contemplated illegal or fraudulent scheme.” Id.
(internal quotation marks and citation omitted). “It is only the
‘rightful interests’ of the client that the work product doctrine
was designed to protect.” Id. (citation omitted).
18
This is the backdrop of “perpetual tension,” see United States
v. Dyer, 722 F.2d 174, 177 (5th Cir. 1983), against which we must
answer the instant question – whether the district court has
overbroadly interpreted the scope of the crime-fraud exception in
applying it to the grand jury subpoena in this case. In Grand Jury
Proceedings, this Court reversed and remanded where the challenged
grand jury subpoenas broadly ordered attorneys to testify and
produce all “notes, memoranda, or any document pertaining to any
interviews of any person pertaining to this case,” 43 F.3d at 968,
and “[a]ny records, notes, memoranda, or any document referencing
any conversation between any employee of [the attorneys’ law firm]
and any of [certain specified] individuals,” id. (first alteration
added). However, there the reach of the crime-fraud exception was
not at issue. In that case the district court had not sufficiently
addressed whether the crime-fraud exception applied at all, and we
remanded “for consideration of whether the government has made a
sufficient showing to overcome the work product privilege.” Id. at
972-73.9
9
We respectfully note that a panel of the First Circuit erred
in interpreting our law when it stated our decision in In re Grand
Jury Subpoena, 190 F.3d 375, 384 n.11 (5th Cir. 1999), “qualified
or abandoned” Grand Jury Proceedings. FDIC v. Ogden Corp., 202
F.3d 454, 460 n.4 (1st Cir. 2000). In Grand Jury Subpoena, we
declined to take appellate jurisdiction to “accept the flawed
[district court] procedure and take steps to work around it,” as we
had done in Grand Jury Proceedings, where “judicial efficiency and
economy favored application” of that option. 190 F.3d at 388. In
Grand Jury Subpoena, we distinguished the “unique dilemma” found in
19
Never before has this Court specifically addressed the
propriety of the scope of the crime-fraud exception to the
attorney-client and work product privileges on a record where the
grand jury subpoena compels disclosure of all communications
between the attorney and his client and between the attorney and a
third party, written, oral, or otherwise, rather than discrete
communications related to a particular issue or limited to
particular media. That is, the Supreme Court and Fifth Circuit
cases cited by the parties all involve the question of the
applicability and/or scope of the crime-fraud exception to
specified documents or conversations already limited to a certain
time or context, rather than a challenge to a discovery request or
a subpoena seeking disclosure in toto.
Certain of these cases address only the application of the
crime-fraud exception to the attorney-client privilege. See, e.g.,
Zolin, 491 U.S. at 557, 559-60, 574-75 (considering whether two
documentary tapes and partial transcripts of the tapes could be
reviewed by district court in camera); United States v. Ballard,
779 F.2d 287, 292-93 (5th Cir. 1986) (allowing attorney’s testimony
Grand Jury Proceedings, 43 F.3d at 970, and instead chose “the
second option of rejecting the flawed procedure and taking steps to
correct it by granting mandamus,” 190 F.3d at 389. In Appellant’s
case, there is no such jurisdictional dilemma: a client “who
claims [his] own interest or privilege may appeal an order
compelling [his] innocent attorney to testify before a grand jury,
even though the attorney has not refused compliance and been held
in contempt.” Grand Jury Subpoena, 190 F.3d at 382-83 (citing
Matter of Fine, 641 F.2d at 203).
20
in criminal case where his testimony related to “fraudulent scheme
to conceal [defendant’s] property, either from the tax collector or
from [defendant’s] other creditors or both” or “continuation of
that illicit plan”); Dyer, 722 F.2d at 176 (considering grand jury
subpoenas requiring two attorneys’ testimony “as to the
circumstances surrounding the preparation and delivery of the
November 16th letter from” defendant to an FBI informant and
reversing district court’s refusal to grant defendant’s motion to
quash as to one attorney because the government did not meet its
prima facie showing); Matter of Fine, 641 F.2d at 200, 204
(vacating district court’s order to compel attorney to reveal
unnamed client’s identity before grand jury because the government
failed to meet its prima facie showing). One case involves only
work product. See Int’l Sys., 693 F.2d at 1238, 1242-43 (vacating
discovery order “that certain documents be produced” from “binders
containing the information . . . developed in [the accounting
firm’s] special review” because plaintiffs did not make prima facie
showing). One case addresses the crime-fraud exception in the
context of both privileges. See Burlington N., 822 F.2d at 525
(finding district court erred in ordering discovery of documents
relating to two groups of litigation because the court did not
consider whether the specific litigation activities were
illegitimate).
The government relies on case language to argue that once it
21
is established a client abused the attorney-client privilege
relationship by seeking advice to commit a crime, the privilege
entirely disappears and all the confidences within the relationship
are no longer shielded. For example, the government cites language
in Ballard:
A half century ago, Justice Cardozo wrote: “The
[attorney-client] privilege takes flight if the relation
is abused. A client who consults an attorney for advice
that will serve him in the commission of a fraud will
have no help from the law.” . . . Once the party seeking
disclosure makes a prima facie case that the attorney-
client relationship was used to promote an intended
criminal activity, the confidences within the
relationship are no longer shielded. These precepts have
since been applied consistently and have come to be known
as the crime or fraud exception to the attorney-client
privilege.
779 F.2d at 292-93 (citing Clark v. United States, 289 U.S. 1, 15
(1932)) (footnotes omitted and emphasis added). The government
also cites Matter of Fine: “If there is a prima facie showing that
the professional relationship was intended to further a criminal
enterprise, the privilege does not exist.” 641 F.2d at 203
(emphasis added). The government insists that once the privilege
has disappeared, disclosure is permitted of any and all
communications relative to the subject matter of the consultation.
See Grand Jury Proceedings, 43 F.3d at 972 (“[T]he crime/fraud
exception permits disclosure of any communications between the
attorney and the client if the client seeks advice from the
22
attorney in carrying out a crime or fraud.”) (emphasis added).10
The government discounts Appellant’s reliance on Burlington
Northern for his overbreadth argument, asserting it has no
application to this case because there two separate groups of
lawsuits were at issue, 822 F.2d at 521, while here only one
criminal prosecution is at issue. In Burlington Northern, the
plaintiffs filed an antitrust lawsuit claiming that defendant
railroads conspired to prevent construction of a coal pipeline by
filing and defending certain allegedly sham lawsuits. Id.
Plaintiffs sought the discovery of documents relating to those two
groups of lawsuits, and the defendant railroads resisted discovery
on the grounds of the attorney-client and work product privileges.
Id. at 521-22. The district court found that the plaintiffs
established a prima facie case that the defendant railroads’
“administrative and judicial challenges” in one group of lawsuits
and “their defense” of the other group of lawsuits “were in
furtherance of [a larger] conspiracy” and ordered the discovery of
documents relating to both sets of litigation. Id. at 523. On
10
We note that the government, when making this line of
argument, entirely miscites Zolin for the proposition that
“[although t]he prima facie standard is commonly used by courts in
civil litigation to shift the burden of proof from one party to the
other[, i]n the context of the fraud exception, . . . the standard
is used to dispel the privilege altogether.” 491 U.S. at 563 n.7.
Such quotation is nothing the Supreme Court approved; instead, it
comes from a parenthetical from a law review note cited for the
statement that the phrase “prima facie case” in the context of the
crime-fraud exception “has caused some confusion.” Id.
23
mandamus review, this Court found:
The district court erred in ordering discovery without
considering whether the specific litigation activities
were illegitimate. The attorney/client privilege and
work product immunity protect communications and papers
generated when a client engages his attorney for
legitimate purposes. To the extent the railroads sought
out their attorneys to bring lawful suits and consulted
with them in connection with such suits, they were within
the scope of this protection. That the railroads might
also have consulted and received the help of their
attorneys in connection with other activities that are
not lawful does not change this conclusion. The focus
must be narrowed to the specific purpose of the
particular communication or document. To the extent the
document deals with a protected activity, it is immune
from discovery.
Id. at 525. The government argues this Court’s findings in
Burlington Northern are not relevant to Appellant’s case because
Former Counsel represented Appellant on only one occasion; and the
government has made a prima facie showing that during the
representation for that single prosecution, Appellant was
committing or intending to commit a crime or fraud.
In reply, Appellant stresses that he did not secure Former
Counsel’s services solely for the purpose of committing a crime or
fraud. Rather, the proper purpose of securing Former Counsel’s
services was to defend Appellant against a government indictment
charging him with past wrongdoing, which defense lasted
approximately nine months before Former Counsel withdrew from the
case. Appellant contends the government cannot excerpt generalized
case language and convincingly argue that once it is determined a
client at some point communicated with his attorney for the purpose
24
of furthering a crime or fraud, regardless of the extent or the
original purpose of the attorney-client relationship, the crime-
fraud exception permits disclosure of any otherwise privileged
communications.
Appellant cites Dyer, 722 F.2d at 177, where the government
subpoenaed the defendant’s civil attorney and his criminal attorney
to the grand jury to question them about conversations they had
with the defendant in connection with a letter written by the civil
attorney as part of the defendant’s alleged attempt to obstruct
justice. Appellant notes that this Court determined the
defendant’s “communication with [his civil attorney] concerning the
November 16 letter is not privileged, but the communication with
[his criminal attorney] is.” Id. This Court held that “when the
government can by competent evidence establish a prima facie case
that an attorney was being used in the commission of a crime there
is no privilege.” Id. at 178. But this Court limited such
seemingly broad holding by making clear that the defendant in Dyer
“retains his privilege to block the testimony of [his civil
attorney] before the grand jury except as to the events immediately
surrounding the preparation of” the letter at issue. Id. at 179.
Thus, even though the government established a prima facie showing
of the crime-fraud exception with respect to the civil attorney’s
representation of the defendant, the defendant’s relationship with
his civil attorney outside of the events connected with that one
25
letter remained protected by the attorney-client privilege.
Appellant emphasizes that this Circuit thus restricts the
scope or reach of the crime-fraud exception, as evidenced in Dyer,
to only those communications made for the purpose of furthering an
ongoing or future crime or fraud. The reach of the crime-fraud
exception, therefore, does not extend to all communications made in
the course of the attorney-client relationship. Appellant argues
this approach is not only consistent with Zolin, where the Supreme
Court delineated the crime-fraud exception with respect to
“communications made for the purpose of getting advice for the
commission of a fraud or crime,” 491 U.S. at 563 (internal
quotation marks and citation omitted), but also with the approach
taken by the Tenth and Second Circuits.
For example, the Tenth Circuit stated, with respect to
documentary evidence, that after finding the applicability of the
crime-fraud exception to the attorney-client privilege, a district
court still may be required to conduct an in camera examination of
all documents subpoenaed by a grand jury “if there is a possibility
that some of them may fall outside the scope of the exception to
the privilege.” In re Grand Jury Proceedings (Vargas), 723 F.2d
1461, 1467 (10th Cir. 1983) (applying this analysis to both the
attorney-client and work product privileges). Likewise, in the
context of grand jury testimony, the Tenth Circuit stated that
“district courts should define the scope of the crime-fraud
26
exception narrowly enough so that information outside of the
exception will not be elicited before the grand jury.” In re Grand
Jury Subpoenas, 144 F.3d 653, 661 (10th Cir. 1998) (addressing the
attorney-client privilege). Under the Tenth Circuit’s approach, it
may be appropriate for the district court to examine in camera the
questions to be asked of the witness before the grand jury “to
ensure the scope of the [grand jury] inquiry will not be too
broad.” Id. (citing In re Richard Roe, Inc., 68 F.3d 38, 41 (2d
Cir. 1995)).
Appellant also notes that the Second Circuit in Richard Roe
ordered the district court on remand to examine each document and
communication to determine whether the client communication or
attorney work product in question was itself made with the intent
to further a crime or fraud. 68 F.3d at 40-41 (finding the
district court incorrectly applied a “relevant evidence” test as
opposed to the correct “in furtherance” test when it determined the
crime-fraud exception applied to both privileges). In conclusion,
Appellant maintains that the district court’s orders here are
overly broad because they allow the government access to all
communications made to Former Counsel by Appellant and all work
product of Former Counsel, whether or not those communications and
documents were intended to further the alleged crime or fraud at
issue.
We agree with Appellant that the district court’s orders
27
compelling Former Counsel to comply with the grand jury subpoena in
this case are overly broad.11 We conclude that the proper reach of
the crime-fraud exception when applicable does not extend to all
communications made in the course of the attorney-client
relationship, but rather is limited to those communications and
documents in furtherance of the contemplated or ongoing criminal or
fraudulent conduct.12 Based upon our examination of the sealed
record, including the in camera examination of Former Counsel, this
case does not present a situation where Appellant’s entire criminal
representation by Former Counsel was based upon or sought for the
sole purpose of perpetuating a crime or fraud.13 The district
11
We do not, however, make any assessment whether the district
court needs to examine in camera each document, communication, or
potential grand jury question to Former Counsel to determine if it
falls within or outside the asserted privileges. Such question is
not properly before us; we merely assess whether the district court
erred in compelling Former Counsel to comply with a subpoena that
indiscriminately reached everything, without regard for those
communications and statements where the attorney-client and work
product privileges remained intact. As previously noted, this case
is procedurally distinct from those cases where the district court
ordered compliance with a subpoena or discovery request already
limited to certain items or otherwise bounded by time or events
within the representation, which precise limitation or boundary
could then be reviewed on appeal for proper applicability and/or
scope of the crime-fraud exception.
12
Our holding regarding the limited scope of the crime-fraud
exception does not preclude the potential disclosure of a client’s
entire file, in the proper case, upon the proper showing of the
client’s entire representation’s being in furtherance of the
alleged crime or fraud.
13
Despite the district court’s error in issuing the overly
broad orders here, the court, during its in camera examination of
Former Counsel, acknowledged that this was not a case where the
entire file of the client was subject to disclosure. After Former
28
court’s orders compelling Former Counsel’s compliance with the
grand jury subpoena here did not in any way limit the required
disclosures. The orders compel Former Counsel to bring all written
statements of Appellant and Witness and all notes, records, and
recordings of interviews of Appellant and Witness. Moreover,
because the court’s orders compel Former Counsel to appear and
order that he cannot assert any attorney-client or work product
privilege, no boundary exists as to the extent of his compelled
testimony. The court’s application of the crime-fraud exception
was overly broad because it lacked the requisite specificity to
reach only communications and documents no longer protected by the
attorney-client and work product privileges. Therefore, we find
the district court’s orders compelling Former Counsel to comply
with the grand jury subpoena and denying Appellant’s motion to
quash the subpoena issued in error.
We so conclude for the following reasons. First, we note that
unlike the government suggests, no case stands for the proposition
that, when a prima facie showing is made that a client has
consulted with his attorney for the purpose of furthering a crime
Counsel informed the court that, the subpoena’s broad wording
aside, he had not brought Appellant’s entire file with him, the
court assured Former Counsel he would be in compliance with the
orders with “[j]ust the documents that would conform to that.” We
infer the conforming items to be those properly shown to fall
within the scope of the crime-fraud exception’s application to the
attorney-client and work product privileges. However, implicit
understanding by a district court of the limited scope of the
crime-fraud exception’s application to the privileges cannot save
a court’s overly broad orders.
29
or fraud, the privilege entirely disappears, subjecting everything
in connection with that client’s representation with that attorney
to disclosure. While there is certain broad language employed in
the cases cited by the government, again, none of those cases dealt
with the instant question of the propriety of an order requiring
compliance with a subpoena lacking any discernible limit on
disclosure. In addition, in both Grand Jury Proceedings, 43 F.3d
at 972-73, and Matter of Fine, 641 F.2d at 204, despite any such
broad language regarding loss of protection of the privileges, the
disposition of the disclosure orders at issue was vacation and
remand because the government had not sufficiently shown the crime-
fraud exception to even apply.
Further, the caselaw cited for breadth of the crime-fraud
exception’s scope simultaneously stands for a sense of limitation
or condition. For example, the Supreme Court in Zolin chose to
describe the “seal of secrecy,” that is, the attorney-client
privilege, as not “extend[ing] to communications made for the
purpose of getting advice for the commission of a fraud or crime.”
491 U.S. at 563 (internal quotation marks and citations omitted and
emphasis added). Lack of extension to certain types of
communications reasonably implies an abbreviation or an abridgement
of the privilege, but not an obliteration altogether as to all
communications remaining under the “seal.” In Grand Jury
Proceedings, this Court described the permitted disclosure of
30
communications between attorney and client by using the conditional
phrase: “if the client seeks advice from the attorney in carrying
out a crime or fraud.” 43 F.3d at 972.
In assessing the proper scope of the crime-fraud exception’s
application to the attorney-client and work product privileges, we
find instructive the treatment of such by our sister circuits,
which bolsters our conclusion here that the reach of the crime-
fraud exception does not extend to all communications made in the
course of the attorney-client relationship, but rather must be
limited to those communications made and documents produced in
furtherance of the ongoing or future crime or fraud, no longer
protected by the privileges. As noted by Appellant, the Tenth
Circuit in Vargas, 723 F.2d at 1461, and later in Grand Jury
Subpoenas, 144 F.3d at 661, indicated that the reach of subpoenas
should be narrowly defined, so as not to extend to documents or
testimony falling outside the scope of the crime-fraud exception to
the privilege, which documents and conversations remain protected.
The Second Circuit also explained that the scope of the crime-
fraud exception only extends to “which, if any, of the documents or
communications were in furtherance of a crime or fraud.” Richard
Roe, 68 F.3d at 41; see also In re Grand Jury Subpoena Duces Tecum
Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984)
(considering “the question of whether any of th[e requested]
documents are within the scope of the exclusion for materials
31
prepared in furtherance of a continuing or future crime or fraud”
and reversing in part denial of motion to quash as to the documents
that retain attorney-client and work product protection). In Grand
Jury Subpoena Duces Tecum, the Second Circuit separated, within the
attorney’s single unit of representation, “advice sought [by the
client] in furtherance of a future or ongoing fraud” as
unprivileged and “communications with respect to advice as to past
or completed frauds” as within the privileges. 731 F.2d at 1041.
There, the court employed a temporal limitation to determine which
documents retained protection: those that followed the date of the
government’s discovery of the fraudulent sale at issue. Id. at
1041-42. As to grand jury testimony, the Second Circuit explained
that limits are required as to the “scope of the examination
permitted.” Richard Roe, 68 F.3d at 41.
The Eighth Circuit in In re BankAmerica Corp. Securities
Litigation, 270 F.3d 639 (8th Cir. 2001), on mandamus review
vacated the district court’s disclosure order where the court
“assumed, without any further showing by plaintiffs, that all
contemporaneous attorney-client communications ‘could be construed’
as in furtherance of the alleged fraud. This was error.” Id. at
643. On remand, the Eighth Circuit directed the district court to
determine whether documents authored after the bank merger or press
release at issue “necessarily fall outside the crime-fraud
exception because they could only relate to prior wrongdoing” and
32
thus remain protected and not subject to discovery. Id. The
Eighth Circuit also considered the breadth of a discovery order.
Pfizer, Inc. v. Lord, 456 F.2d 545 (8th Cir. 1972). There, the
court addressed whether the masters’ discovery report’s conclusions
constituted “an overbroad, ‘sweeping denial of defendants’
attorney-client privilege,’ or whether [they] are reasonably
bottomed on a review calculated to shield from discovery all
communications by means of which petitioners legitimately sought or
received legal advice.” Id. at 551. Though it declined to issue
the writ of mandamus, the Eighth Circuit directed the district
court “to continue to guard the attorney-client privilege . . . by
reviewing, if necessary, all contested documents prior to ruling on
the discoverability of such documents and by ordering the
production to respondents only of those documents individually
found to have been prepared in perpetration or furtherance of
fraudulent activity.” Id.
Finally, we note the D.C. Circuit’s explanation: “Once a
sufficient showing of crime or fraud has been made, the privilege
vanishes as to all material related to the ongoing violation.” In
re Sealed Case, 676 F.2d 793, 812 n.74 (D.C. Cir. 1982) (emphasis
added). The D.C. Circuit considered whether six items covered by
a grand jury subpoena fell within the reach of the crime-fraud
exception and found that only one item did. Id. at 816. In
International Systems, 693 F.2d at 1242, we acknowledged the DC
33
Circuit’s requirement in Sealed Case, in the context of the crime-
fraud exception’s application to the work product privilege, that
“the court must find some valid relationship between the work
product under subpoena and the prima facie violation.”14
Despite the government’s attempt to distinguish Burlington
Northern, this Court’s general characterization of the scope of the
crime-fraud exception replicates that found in the treatment of
other circuits – narrowing the focus of the exception to only those
communications falling outside the attorney-client and work product
privileges that do not “deal[] with a protected activity” such that
they are “immune from discovery.” See 822 F.2d at 525.
For the guidance of district courts, we now use the language
we first employed in International Systems and restated in
Burlington Northern to lead us in outlining the proper scope of the
crime-fraud exception’s application to both the work product and
the attorney-client privileges. In International Systems, we
14
In International Systems, we distinguished Sealed Case in
vacating the district court’s order requiring production of the
special review binders at issue because the plaintiffs had only put
forth allegations, not proof, of specific intent by the corporate
defendant’s management in the development of the binders. In
Sealed Case, in contrast, the D.C. Circuit found the record “more
than satisfies the prima facie violation requirement.” 676 F.2d at
815. Evidence, as opposed to allegations, that the “Company's
chairman lied to or attempted to mislead the IRS with his affidavit
[was] enough to pass the first stage of the [prima facie] inquiry.”
Id.; see supra n.7 (discussing how the first stage of the prima
facie inquiry does not address the necessary issue of scope in
cases where the discovery request or subpoena lacks any discernible
limitation).
34
indicated that meeting the prima facie test to pierce the work
product privilege through the crime-fraud exception would
ordinarily require, in addition to an initial showing that the
client intended to further an ongoing or future crime or fraud
during the attorney-client representation, a secondary showing of
“some valid relationship between the work product under subpoena
and the prima facie violation”; that is, “the work product must
reasonably relate to the fraudulent activity.” 693 F.2d at 1242-
43; see also Burlington N., 822 F.2d at 525 n.5 (citing Sealed
Case, 676 F.2d at 815 n.91).
Therefore, we here additionally label what we had previously
termed the second element of the prima facie test as the proper
scope of the crime-fraud exception’s application to the work
product privilege and hold that the same scope also applies to the
attorney-client privilege. After the party seeking disclosure
meets its prima facie showing that the client intended to further
an ongoing crime or fraud during the attorney-client relationship
such that the crime-fraud exception applies, the only attorney-
client communications and work product materials falling within the
scope of the crime-fraud exception are those shown to hold “some
valid relationship” to the prima facie violation such that they
“reasonably relate to the fraudulent activity.” See id. at 1243;
see also Burlington N., 822 F.2d at 525 n.5. “[T]he exact
formulation of a test for relatedness is less important than an
35
understanding of what the [scope] test must accomplish; easy
differentiation between material for which the law should not
furnish the protections of a privilege and material for which a
privilege should be respected.” Burlington N., 822 F.2d at 525 n.5
(internal quotation marks and citation omitted).
We also find the language in Dyer to be instructive in
defining the proper reach of the crime-fraud exception:
Our immediate concern is accommodating the government’s
interest in obtaining the testimony of [Appellant’s]
attorney[] with [Appellant’s] interest in protecting his
relationship with his lawyer[]. Concerns beyond the
immediate interest of [Appellant] rest on both sides of
this balancing scale. On the [Appellant’s] side there is
a concern that the Sixth Amendment-rooted adversary
system be protected in actuality, and when distinct, in
appearance. . . . On the other side there is the right to
every person’s evidence. But having said this we are
persuaded that these interests are accommodated by the
procedure followed below. We are not so removed from
reality as to indulge in the fantasy that all accused are
truthful with their lawyers. But an inconsistency
between the government’s proof and an accused’s version
alone will not defeat or even threaten the attorney-
client privilege. The line between manufacture of
evidence . . . and imaginative advocacy may at times be
obscure. We must be particularly cautious as that line
is approached to insure that vigorous advocacy is not
unfairly checked or that able counsel are not forced from
cases without cause.
722 F.2d at 178. The above description supports drawing a line
beyond which the crime-fraud exception to the attorney-client and
work product privileges does not pass, except upon the proper
showing of reasonable relation to the furtherance of the ongoing or
future crime or fraud. Such balancing accommodates the
government’s interest in uncovering ongoing or future criminal or
36
fraudulent behavior without abandoning the clients’ interest in
protecting privileged information within legitimate representation.
In Dyer, we specifically noted that, as to the civil attorney,
where the government met its prima facie showing the crime-fraud
exception applied to remove the attorney-client privilege, the
defendant still “retains his privilege to block the testimony of
[his civil attorney] before the grand jury except as to the events
immediately surrounding the preparation of the” letter at issue.
722 F.2d at 179. This carving out of the crime-fraud exception to
reach only the events in connection with preparation of the letter,
which was the basis of the accused’s alleged crime or fraud,
indicates that the proper scope of the crime-fraud exception must
necessarily be limited to those attorney-client communications and
work products reasonably related to the furtherance of the ongoing
or future crime or fraud at issue. Otherwise, to put it simply,
the crime-fraud exception swallows the privilege rule.
CONCLUSION
Having carefully considered the record of the case and the
parties’ respective briefing and arguments, for the reasons set
forth above, we VACATE the district court’s orders, GRANT
Appellant’s motion to quash the grand jury subpoena, and REMAND.
In the event the government chooses to reissue a grand jury
subpoena to Former Counsel, the district court’s analysis of that
subpoena’s reach should proceed consistent with this opinion.
37
VACATED, motion GRANTED, and REMANDED.
38
In Re Grand Jury Subpoena
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-07-26
Citations: 419 F.3d 329
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