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United States v. Doe

November 23, 2005


Appeal from the United States District Court For the District of New Jersey D.C. No.: 04-mc-00106 District Judge: Honorable John W. Bissell, Chief Judge.

The opinion of the court was delivered by: Rosenn, Circuit Judge.


Argued: October 25, 2005

Before: SLOVITER, FISHER, and ROSENN, Circuit Judges


This appeal raises several serious questions concerning the time-respected role of privileged communication between client and attorney and the crime-fraud exception. For almost four years now, the Government has had an active grand jury investigating certain activities of a federal law enforcement officer (hereinafter referred to as "Target"). The Government submitted details of the investigation to the District Court under seal through an ex parte affidavit of Peter R. Zeidenberg, a trial attorney of the Criminal Division of the Public Integrity Section of the United States Department of Justice. The Government sought the grand jury testimony of an attorney (hereinafter referred to as "Attorney") from whom Target sought legal advice in connection with an allegedly fraudulent, and likely criminal, course of conduct. Specifically, the Government claims to have discovered evidence that Target proposed to engage in future criminal conduct, and that Target's purpose in consulting Attorney was to ascertain how best to conceal the illegal activity in which he planned to engage.

Attorney refused to respond to a grand jury subpoena, invoking the attorney-client privilege and moving to quash the subpoena. The District Court for the District of New Jersey conducted a sealed hearing on the motion to quash. The Government argued that the crime-fraud exception to the privilege applied to Target's conversations with the lawyer because they were in furtherance of Target's planned criminal activity. The Government also opposed the motion to quash because certain conversations between the attorney and Target involved the participation and presence of a third party (hereinafter referred to as "Witness") that dispelled the privilege.

The District Court issued an oral ruling granting the motion to quash, concluding that the crime-fraud exception did not apply and that the presence of Witness did not dispel the privilege. The Government timely appealed. For reasons set forth below, we reverse and direct the denial of the motion to quash.


On appeal, the Government raises two issues of law:

(1) that the District Court erred in applying a "cumulative evidence" standard to the motion to quash because the testimony sought was unnecessary for the grand jury in light of the testimony that it had already heard, and (2) the Court erred in interpreting the crime-fraud exception to require an attorney's knowing furtherance of the client's crime before the privilege can be pierced. We exercise de novo review over the issues of law underlying the application of the attorney-client privilege. In re Impounded, 241 F.3d 308, 312 (3d Cir. 2001). As to other issues, our standard of review of the application of that law is for abuse of discretion. Id.


The attorney-client privilege is a well-established historic rule which protects confidential communications between client and attorney. The privilege belongs to the client, not the attorney. The Supreme Court has long emphasized that the central concern of the 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." United States v. Zolin, 491 U.S. 554, 562 (1989) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The attorney-client privilege under federal law is the "oldest of the privileges for confidential communications known to the common law." Id.; State of Maine v. U.S. Dept. of the Interior, 298 F.3d 60, 70 (1st Cir. 2001). The privilege is not lost if a client proposes a course of conduct which he is advised by counsel is illegal, but is extinguished when a client seeks legal advice to further a continuing or future crime. Zolin, 491 U.S. at 563. Because this ancient and valuable privilege is at the expense of the full discovery of the truth, it should be strictly construed. In re Grand Jury Proceedings, 219 F.3d 175, 182 (2nd Cir. 2000).

The common interest privilege allows for two clients to discuss their affairs with a lawyer, protected by the attorney-client privilege, so long as they have an "identical (or nearly identical) legal interest as opposed to a merely similar interest." F.D.I.C. v. Ogden Corp., 202 F.3d 454, 461 (1st Cir. 2000). The District Court found that Target and Witness shared a common interest, and therefore, the presence of Witness did not vitiate the attorney-client ...

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