Interesting ruling on scope of attorney-client privilege

Today, the Third Circuit, in In Re: Grand Jury Investigation, ruled on interesting issues regarding attorney-client privilege, the work-product doctrine, and the crime-fraud exception. The case reached the Court after the government subpoenaed certain documents and testimony regarding an attorney’s advice to his client. The district court upheld the subpoena, holding that the crime-fraud exception trumped the attorney-client privilege and work-product doctrine because there was evidence that the attorney had given the client advice in furtherance of her obstruction of justice. After surrender of the documents and the testimony of the attorney before the grand jury, but before an indictment was returned, an object of the investigation, Jane Doe, appealed the district court’s ruling.

The Court first discussed issues of mootness. Because the Court could order relief (i.e., return of the subpoenaed documents, possible injunction of future use of arguably privileged grand jury testimony) to Doe in the event that she prevailed, the Court decided that the appeal was not moot.

Doe argued that the crime-fraud exception should not override the attorney-client privilege where she did not initiate the communication with the attorney, and therefore was not soliciting advice. The Court disagreed and further stated that the government has the burden to show that the client was committing a crime or fraud and the attorney-client communications were in furtherance of such. The Court found some evidence of an ongoing crime: obstruction of justice. Next, the Court assessed whether the attorney-client relations were "in furtherance of" and not merely "related to" the criminal activity. (Interesting note: the district court had relied on a Not Precedential Opinion ("NPO") in determining that the appropriate test for "in furtherance of" was "related to." The opinion makes clear that this was not appropriate.) Nonetheless, because the district court agreed that the attorney-client communications qualified as being "in furtherance of" Doe’s possible obstruction of justice, and thus were subject to the crime-fraud exception, the Court affirmed the district court’s ruling.