273 F. Supp. 3d 296
D. Mass.2017Background
- A defense attorney (identified as "Attorney") moved to quash a grand jury subpoena seeking her appearance and all records concerning her client ("Client") from Jan 1, 2015 onward, asserting attorney-client privilege and work-product protection.
- The government argued the Client waived privilege by authorizing the Attorney to respond to third-party inquiries and that the crime-fraud exception and a work-product crime-fraud exception apply; it also relied on a February 2016 search warrant and Special Agent affidavit for its factual showing.
- The subpoena covered communications and documents relating to the Client’s dealings with a business and communications with state government representatives.
- The magistrate had found probable cause for a search in Feb 2016, but there was no grand jury indictment charging the Client.
- After briefing and a sealed hearing, the court granted the motion to quash in part and denied it in part: the Attorney need not appear, but must produce factual materials the Client had previously authorized her to disclose; the court held privilege was not waived and declined to apply the crime-fraud exception; it held pre-warrant files were work product because litigation was reasonably anticipated.
Issues
| Issue | Attorney's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether attorney-client privilege was waived when Client authorized Attorney to answer third-party inquiries | No waiver: disclosure to third parties concerned facts, not privileged communications | Waiver: Client directed Attorney to disclose communications for his benefit, implying waiver on subject matter | No waiver — court distinguishes communications from underlying facts; disclosure of facts does not automatically waive privilege |
| Whether crime-fraud exception pierces privilege/work-product | Exception does not apply because Attorney was not retained to further future wrongdoing; alleged misconduct predated representation | Exception applies: government points to backdated invoice/check and search-warrant affidavit to show Client used Attorney to further/cover fraud | Court: government failed to make prima facie showing; warrant/affidavit insufficient to show Client hired Attorney to foster fraud; exception not met |
| Whether files prepared before Feb 2016 search warrant are work product (prepared in anticipation of litigation) | Attorney: litigation was reasonably anticipated from the outset; files pre-warrant are work product | Government: concedes post-warrant materials are work product; disputes pre-warrant coverage | Held: pre-warrant materials protected — court accepts that likelihood of enforcement was sufficiently great and files were prepared because of prospect of litigation |
| Whether enforcing the subpoena violates Client’s Sixth Amendment right to counsel of choice | Enforcement would undermine right to counsel of choice and risk disqualification | Government has plausible justifications for subpoena; heavy burden required to disqualify counsel | Court: Sixth Amendment right not triggered pre-indictment; expresses concern about practice but declines to find constitutional violation given government justifications |
Key Cases Cited
- In re Grand Jury Proceedings, 417 F.3d 18 (1st Cir.) (framework for attorney-client privilege and crime-fraud exception in grand jury context)
- Zolin v. United States, 491 U.S. 554 (1989) (in camera review standard and that crime-fraud exception applies only where counsel was engaged to further future wrongdoing)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege protects communications, not underlying facts)
- In re Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir.) (burden and caution in finding implied waiver of privilege)
- United States v. Gorski, 807 F.3d 451 (1st Cir.) (crime-fraud exception analysis where indictment supported prima facie showing)
- Hickman v. Taylor, 329 U.S. 495 (1947) (work-product doctrine protects attorney files prepared in anticipation of litigation)
- United States v. Textron Inc. & Subsidiaries, 577 F.3d 21 (1st Cir.) (discussion of work-product protections)
- United States v. Rakes, 136 F.3d 1 (1st Cir.) (disclosure of privileged communications and waiver principles)
- Powell v. Alabama, 287 U.S. 45 (1932) (Sixth Amendment right to counsel of choice principle)
- Kirby v. Illinois, 406 U.S. 682 (1972) (Sixth Amendment right attaches only after initiation of adversarial proceedings)