In its first opinion, Justice Sotomayor holds (for the unanimous Court) that, under the collateral order doctrine, a district court order that compels disclosure of what is alleged to be attorney-client confidential information is not immediately appealable. While the claim of the ‘cat is out of the bag’ has some validity, the usual rules that restrict controls of piecemeal appeals. After the trial, the aggrieved party can appeal and, if successful, will win a new trial in which the data will not be used. The party can also clearly fail to comply, suffer an order of disdain, and appeal the order. Third, the party may attempt to invoke 28 U.S.C. § 1292(b), which authorizes an interlocutory appeal to be approved by the district court.
In deciding whether the crime fraud exception applies to the privilege of the attorney/client, the district court may carry out a camera review of the communications itself if the party opposed to the privilege satisfies the court that there is a fair belief that such an examination would produce evidence showing that the crime fraud exception is applicable. Any proof can be used to illustrate this.
The defendant lodged a plea, subsequently withdrawn, containing an express waiver of his rights under Rule 410 to preclude proof of his claims if he withdrew. The government tried at his trial to present not only his claims, but also the testimony of his then-attorney on the circumstances concerning the preparation of the factual basis. The attorney-client privilege was abused by this. The waiver of the defendant regarding the use of his statements did not also waive the right of attorney-client.
A defendant and her attorney went to be questioned at a police station. The lawyer and the suspect were placed in an interrogation room prior to the interview (the suspect was not in custody) and were not informed that their conversation would be taped. The Eleventh Circuit held that the recording of the conversation violated the rights of the two individuals to the Fourth Amendment and that an action could be brought under section 1983 because the deputies were not entitled to qualified immunity for this apparent breach of the protection of the Fourth Amendment and the attorney-client.
The defendant was debriefed with the expectation that what he said during the debriefing could be used against him if he did not plead guilty. He did not plead guilty and switched prosecutors. At trial, the government called his counsel to testify at the debriefing about the voluntary existence of the defendant’s claims. The Fifth Circuit held that parts of the testimony of the attorney violated the right of the attorney’s client.
This case provides a detailed primer on the procedures that are acceptable when, by using the crime-fraud exception, the government tries to pierce the attorney-client privilege. The process is sufficient to proceed on camera before a trial judge ex parte. An immediate appeal under the Perlman doctrine is reasonable where, as here, the information is in the hands of the attorney, who would otherwise have no reason to risk being held in contempt in order to preserve the right of his client; therefore, the client can appeal, rather than having to wait for the attorney to be held in contempt and depending on the decision of the attorney to appeal. On the merits, the Third Circuit held that the exception to criminal fraud applies only if the client is in the act of committing a crime or contemplates committing a crime before the counsel has been consulted. If the solicitor is contacted and later the client decides to commit a crime or fraud, it does not matter.
In order to perfect an appeal of an Order by the district court that the attorney-client privilege does not apply, when a grand jury subpoena is given to a company for certain records or to an attorney for the corporation that is in possession of certain of the corporate documents, the attorney must bear the repercussions of disdain. There is no clear appeal of the order requiring the solicitor to produce the documents. The exception accepted in Perlman v. United States, 247 U.S. 7 (1918), refers only to a custodian of a third party who has no interest in being kept in contempt. In that case, since the custodian has no interest in perfecting an appeal and the client is not subject to contempt, the client has the right to appeal the decision, so the client must be granted the opportunity to appeal without the custodian or the client being held in contempt first. However, the client can actually demand that the records be returned to the client in the case of an attorney custodian, and the client can then fail to produce the documents, be held in contempt and appeal. The corporation may appeal with respect to orders addressed to former employees (including former in-house counsel), since the company may not want former employees to return documents to the corporation. Lastly, the Third Circuit held that, at least in the case of grand jury subpoenas, Mohawk did not abolish the Perlman clause. After disposing of the jurisdictional issue, the Third Circuit then reached the merits of the issue of crime fraud exemption, as it applied to the former workers, and found that the government had made ample evidence to invoke the exception to crime fraud.
The Ninth Circuit maintains that the defendant established the existence of a joint defense agreement and was therefore entitled, in the course of this § 2255 proceeding, to prohibit the lawyer from providing testimony. The court also held that the client’s filing of a § 2255 proceeding claiming inadequate counsel’s assistance survives the right.
Even post-Mohawk, where a subpoena is given to a disinterested third party for arguably privileged documents, the “client” can interfere and pursue an interlocutory appeal for the production of documents. The Ninth Circuit, based on Perlman v. United States, 247 U.S. 7 (1918), held that the custodian of the third party presumably has no interest in opposing disclosure or being held in contempt, and thus, there is no way for the client to advocate for the right without allowing the client to interfere and appeal. However, the Ninth Circuit noted that this provision applies only if the disinterested third party (i.e. the law firm that is subpoenaed to produce documents) is no longer the attorney of the defendant. That is, if the third party is the former counsel for the defendant, the Perlman rule only applies.
The defendant was an independent contractor who provided an insurance company with consulting services. In fact, he was possibly the principal operator of a business whose official title was not that of an officer or an employee, since he was barred from working with any insurance firm. The corporation’s lawyers addressed different concerns with him regarding the company’s activities. Ultimately, he was indicted. The organization waived the right officially and the lawyers testified against the defendant. Affirms the Ninth Circuit. The attorneys were attorneys for the corporation, not the entity, for the purposes of the attorney client privilege; and he was an employee of the corporation because of the manner in which he conducted his consulting business.
WPC Corp. was prosecuted by the government. The company carried out an internal investigation and handed over the findings of the investigation to the government. A letter preceding the disclosure attempted to protect both the client’s counsel and the rights of the work product. With the government, the company settled. However, Thompson was indicted. He filed a request under Rule 16 for the records and interviews requested by the company, as well as a request from Brady. The organization tried to preclude disclosure to the defendant. The D.C. Circuit held that both Brady and Rule 16 evidence were entitled to the defendant. The court cautioned, however, that it was not appropriate to furnish a wholesale disclosure of all the materials provided to the government by the company, because if the material did not qualify as Brady and would not be “material to the ability of the defendant to prepare a defense,” there was no ground for requiring its disclosure.
An person who was imprisoned and awaiting federal sentencing called an attorney from the jail telephone, the defendant in this case, and the two discussed improper ways in which the attorney could erase the criminal background of the defendant. The jail telephone alerted all callers that the call would be registered, while state law specified that calls to lawyers would not be heard by the police. However, in breach of the state law, the police listened to these calls. For his role in the obstruction of justice system, the attorney was charged. The First Circuit ruled that the consent of the prisoner to the taping of the call was adequate to make meritless the argument of the Fourth Amendment. With respect to the attorney-client privilege, the attorney-defendant did not argue that the taping violated the Sixth Amendment rights of the defendant, and these possible arguments were not resolved by the First Circuit.