As set forth above, actual knowledge of the forfeitability of an asset, cannot be established by compelled disclosure of confidential communications made during the course of the representation. This limitation upon compelled disclosure of confidential communications does not preclude the use of these confidential communications when they are voluntarily disclosed. For example, the testimony of the defendant at trial may be relied upon. This limitation also does not preclude the use of a subpoena to obtain non-privileged fee information, such as the amount, source and method of payment. But the subpoena may not seek to obtain any confidential communications.

This limitation on compelled disclosures does not recognize or imply that all confidential communications between a client and an attorney are protected either by that attorney-client privilege or the constitutional right to counsel. Only those confidential communications which meet all the requirements for privilege or which relate to defense preparation are protected. See, e.g., United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir. 1994); In re Auclair, 961 F.2d 65, 69-70 (5th Cir. 1992); United States v. Melvin, 650 F.2d 641, 645 (5th Cir. 1981); United States v. King, 536 F. Supp. 253, 264-65 (C.D.Cal. 1982). The Department imposes this limitation in recognition of the fact that the need for clients to make full and free disclosure to their attorneys outweighs the detriment of placing limitation on the use of some non-privileged communications in certain limited situations.

[new May 2010]