LAW638 White Collar Crime

WEEK 13
ATTORNEY-CLIENT PRIVILEGE AND WORK
PRODUCT
Attorney-Client Privilege
Work product Doctrine
Waiver
o Implied
o Partial
o Selective
o Compelled
Crime/Fraud Exception
Government Action + AC/WP

Federal White Collar Crime pp 969 – 1032

Notes
Attorney-client privilege applies only if:
o The asserted holder of the privilege is or sought to become a member;
o The person to whom the communication was made
Is a member of the bar of a court, or his subordinate and
In connection with this communication is acting as a lawyer
o The communication relates to a fact of which the attorney was informed
By his client
Without the presence of strangers
For the purpose of securing primarily either
An opinion on law or
Legal services or
Assistance in some legal proceeding, and not
For the purpose of committing a crime or tort
o The privilege has been
Claimed and
Not waived by the client.
o There is no attorney-client privilege when a prosecutor talks to an
individual being investigated for a crime
o As long as he is a potential client, that is enough! He does not actually
need to have paid you for the attorney-client privilege to be exerted

Note, there may be overlap with the work product doctrine – the latter is distinct
from and broader than the attorney-client privilege:
o Not restricted to “communications” between client and counsel
o Encompassing material “obtained or prepared by an adversary‟s counsel”
in the course of his legal work
o Provide that the work was done “with an eye towards litigation”
o Not automatically waived by any disclosure to a third party
o Only the client may assert the attorney-client privilege while both the
attorney and the client may invoke the work product doctrine
o If prosecutors can access their materials, it will be a potential roadmap for
liabilities! We want to protect their good works
A. QUALIFYING FOR PROTECTION

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Upjohn Co. v United States

449 US 383 (1981)
Facts Independent auditors found that one of Upjohn Co (a manufacturer
and seller of pharmaceuticals)‟s foreign subsidiaries made
payments to or for the benefit of foreign govt officials in order to
secure govt business
Accountants so informed petitioner, Gerard Thomas, Upjohn‟s VP,
Secretary and General Counsel. Thomas then decided that the
company would conduct an internal investigation of what were
termed “questionable payments”
Attorneys prepared a letter containing questionnaire which was
sent to “All Foreign General and Area Managers” over the
Chairman‟s signature. Managers were instructed to treat it as highly
confidential, and not to discuss it with anyone – responses were
sent to merely Thomas
o What should have been done? Have the President to write the
memo, and that memo is going to go to all officers and employees.
We are going to have an internal investigation regarding the
ACME line of explosives, as we have been accused of xxx. General
Counsel Thomas is going to contact you, you are only to speak to
him, your communications with him are to be full and truthful,
and maintain confidentiality. The purpose of this investigation is
to anticipate potential lawsuits that may arise
o Upjohn Warning: Apply Upjohn warning when conducting
interviews with people. His client is the company but not the
individual employee, and the company has the ability to waive
any privilege between the company‟s witnesses and its employees
Company then voluntarily submitted a preliminary report to SEC
and Internal Revenue Service disclosing questionable payments.
IRS then issued a summon for the records of the written
questionnaires sent to the managers of its affiliates, and
memorandums/notes of the interviews conducted in the US and
abroad with officers and employees of the Upjohn Company and its
subsidiaries
District Court found waiver of the attorney-client privilege, thus
privilege does not apply and applied the “control group” test for A-
C; found that work product doctrine does not apply. COA rejected
this argument, but found that the privilege does apply – arguing
that the claim for a broader application of the privilege would
encourage upper-echelon management to ignore unpleasant facts
and create too broad a “zone of silence”
Holding Who is the CLIENT?
COA found that the client was “the senior management, guiding
and integrating the several operations, can be said to possess an
identity analogous to the corporation as a whole”; applied the
control group test: If the employee making the communication, of
whatever rank he may be, is in a position to control or even to take a
substantial part in a decision about any action which the corporation may
take upon the advice of the attorney, then, in effect, he is (or personifies)
the corporation when he makes his disclosure to the lawyer and the
privilege would apply

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Supreme Court REJECTED this argument. Such a view overlooks

the fact that the privilege exists to protect not only the giving of
professional advice to those who can act on it but also the giving
of information to the lawyer to enable him to give sound and
informed advice.
o In a corporate context, officers and agents responsible for
directing the company‟s actions in response to legal advice
will be the ones who possess the information needed by the
corporation‟s lawyers! Information, not necessarily available
from upper-echelon management, was needed to supply a basis for
legal advice concerning compliance with securities and tax law,
foreign laws, currency regulations, duties to shareholders &
potential litigation
o Control group test frustrates the purpose of the privilege by
discouraging the communication of relevant information by
employees of the client to attorneys seeking to render legal
advice to the client corporation. Makes it more difficult to
convey full & frank legal advice to the employees who will
put into effect the client corporation‟s policy
o A lawyer would want the control group to be large – and be
able to protect as many people and gather as much
information as possible

Work Product Doctrine

Summons had gone further for Thomas‟s notes and memoranda of
interview, which had gone beyond recording responses to his
questions
Hickman v Taylor: Court noted that it is essential that a lawyer works
with a certain degree of privacy and reasoned that if discovery of
the material sought were permitted, much of what is now put down
in writing would remain unwritten.
o BUT, where relevant and nonprivileged facts remain hidden
in an attorney‟s file and were production of those facts is
essential to the preparation of one‟s case, production may be
justified where the witnesses are no longer available or can
be reached only with difficulty
Forcing an attorney to disclose notes and memoranda of witnesses‟
oral statements is particularly disfavoured because it tends to
reveal the attorney‟s mental processes
Rule 26 accords such protection – permitting disclosure of docs and
tangible things constituting attorney work product upon a showing
of substantial need and inability to obtain the equivalent without
undue hardship
The Magistrate had applied the “substantial need” and “without
undue hardship” standard articulated in Rule 26(b)(3). The notes
and memoranda sought are work product based on oral statements.
If they reveal communications, they are protected by the attorney-
client privilege. To the extent that they do not reveal
communications, they reveal the attorneys‟ mental processes in
evaluating the communications.
Notes What happens if shareholders of a corporation sue the

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corporation and seek attorney-client privileged materials? Who is

the client?
o Garner v Wolfinbarger: Protection of those interests as well as
those of the corporation and of the public require that the
availability of the privilege be subject to the right of the
stockholders to show cause why it should not be invoked in
a particular instance
What showing, if any, will be sufficient to force disclosure of
“opinion” work product – that is, “the mental impressions,
conclusions, opinions or legal theories…of [a party or its
representative] concerning the litigation”?
o CIRCUITS SPLIT.
Invocation of the attorney-client privilege and work product
doctrine must be founded on the provision of legal services
o In In Re Grand Jury Subpoenas Date Mar 9 2001, the court held
that lawyers representing Marc Rich in connection with his
presidential pardon application could not rely on the work
product doctrine or attorney-client privilege to withhold
testimony or documentary evidence. Once Rich and Green
decided to seek presidential pardons, the lawyers had
ceased providing legal services in an adversarial context
When in doubt, have an in camera review by the judge – to
determine whether a document is indeed protected
To be protected by the attorney-client privilege and work product
doctrine, internal corporate investigations of the type employed in
Upjohn must be pursued for the purpose of securing legal advice
(attorney-client) or done in anticipation of litigation (work product)
o Materials obtained in the ordinary course of business or for
other non-litigation purposes do not qualify for work
product protection
o Prospect of litigation must be REAL AND SPECIFIC,
RATHER THAN SPECULATIVE
o Problem arises when legal and business considerations mix
and become inextricably intertwined!
o Does it extend to counsel‟s consultations with expert third parties,
such as accountants or investment bankers, in the course of an
internal corporate investigation of past wrongdoing or as part of
counsels evaluation of proposed business activities or
transactions? Yes, if it is necessary to make an informed
advice
Kovel’s Privilege: What is vital to the privilege is that the
communication be made in confidence for the purpose of
obtaining legal advice from the lawyer. If what is sought is not
legal advice, but only accounting service or if the advice sought is
the accountant‟s, rather than the lawyer‟s, no privilege exists
o A communication between an attorney and a 3P does not
become shielded by the attorney-client privilege solely
because the communication proves impt to the attorney‟s
ability to represent the client. It is only protected if counsel
can demonstrate that 3P expert assistance was needed to
permit counsel to communicate effectively wither client

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o What happens if attorney seeks outsider‟s help? Have they

waived the privilege?
NO. That would frustrate the intent of the privilege
By interpreting the data, you are in a way preparing
for litigation – this is cobbling! Seeking outsider‟s
help for purposes of internal investigation.
But if it were for a business decision, there would not
be protection.
Work product doctrine may protect the product of communications
with 3P even when assertions of attorney-client privilege fail
o Adlman II (Second Circuit) court rejected the standard
adopted by some courts that requires that litigation had to
be “the primary motivating purpose behind the creation of
the doc”. Under this standard, the document generally must
be prepared to AID in litigation to warrant work product
protection
o Adlman II adopted instead what appears to be the majority
rule, which asks whether the documents were prepared
“BECAUSE OF” existing or expected litigation. Thus, it
does not lose protection under this formulation because it is
created in order to assist with a biz decision…but it does not
necessarily protect documents that are prepared in the
ordinary coruse of biz or that would have been created in
essentially similar form irrespective of the litigation
B. LOSING THE PRIVILEGE: WAIVER
NCAA Investigation – NCAA assumes that the coaches have violated the NCAA
rules, and corporate counsel tells the university presidents to kick the students
out and fire the coaches. Corporate counsel has become an arm of the
prosecution! Why would you offer the defendant diversion (i.e. it‟s okay, let‟s not indict
the firm, or just fine) and turn over all the documents – to just waive the attorney-client
privilege and give the internal memo?
o This is predictable – US attorneys under DOJ policies would go to
corporations and say that we are going to compel you to waive the A-C
and Work Product Doctrines, or else we are going to prosecute you to the
full extent of the law. This is a downside for the companies – but
corporate interests are different from personal interests
Cases concerning asserted “inadvertent” waivers, in which “unintended” or
mistaken disclosures were made of privileged communications or work product
and the privilege-holders sought either to reclaim the privileged materials or to
restrict the scope of any implied waiver;
o An opposing counsel that gave you something that was in confidence
Case concerning asserted “partial” waivers, in which the privilege-holders
contended that they waived only a portion of privileged communications or
work product by intentionally using or disclosing the portion and that the
balance of the communication or work product should be protected; and
Cases concerning asserted “selective” waivers, in which the privilege-holders
asserted that they could intentionally disclose the privileged communications or
work product to some persons but not to others
(I) Who May Waive?
Solvent Companies: Corporation‟s management and is Commodity Futures

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normally exercised by its officers and directors Trading Commission v

New Management: Authority to assert and waive the Weintraub
corporation‟s attorney-client privilege passes as well. 471 US 343 (1985) –
Displaced managers may not assert the privilege over the US Supreme Court
wishes of current managers, even as to statements that
the former might have made to counsel concerning
matters within the scope of their corporate duties
What Constitutes Implied Waiver? In re Grand Jury
Doe court: use a “fairness” approach to determine Proceedings (United
whether the disclosure of privileged communications by States v Doe)
a corporate actor should be imputed to the corporations
as an implied waiver
o Information used in post-petition hearing would
be an implied waiver
A party cannot partially disclose privileged
communications or affirmatively rely on privileged
communications to support its claim or defence and then
shield the underlying communications from scrutiny by
the opposing party. The quintessential example is D who
asserts an advice-of-counsel defence and is thereby
deemed to have waived his privilege with respect to the
advice that he received
o In Bilzerian, D who intended to testify as to his
“good faith” reliance on legal advice could not
prevent the govt from cross-examining him on
advice received from counsel!
o US v White: Mere denial of MR through an
averment that lawyers have looked into a matter
does not imply an intent to reveal the substance of
the lawyers‟ advice
Scope of waiver has been limited where “the disclosure
occurred early in the proceedings, was made to opposing
counsel rather than to the court, and was not
demonstrably prejudicial to the other party”
Clearly, when the corporation as an entity makes the
strategic decision to disclose some privileged
information, the courts may find implied waiver, as they
do in cases involving individuals
In Doe‟s case, the court considered the following:
o A corporation that has not deliberately disclosed
any privileged material to the govt or to other
parties, but whose officer, in contravention of the
corporation‟s instructions, has arguably waived
the privilege in his grand jury testimony
o Corporate agent was subpoenaed individually
o Second Circuit thought it significant that the
corporate officer “was compelled to appear and to
testify before the grand jury. Because the
corporation does not enjoy the protection of the
Fifth Amendment, Witness could not assert the

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Fifth Amendment on its behalf”

(II) Federal Rule of Evidence 502
Rule 502 was introduced to respond to the widespread complaint that litigation
costs necessary to protect against waivers “have been come prohibitive due to the
concern that any disclosure (however innocent or minimal) will operate as a
subject matter waiver of all protected communication or information”
The rule governs only credit waivers by disclosure. Other common-law waiver
doctrines may result in a finding of waiver even where there is no disclosure of
privileged information o work product
Federalism Issues:
o Subdivision (c)
Difficult problems arise when:
A disclosure of a communication or information protected
by the attorney-client privilege or as work product is made
in a state proceeding
The communication or information is offered in a
subsequent federal proceeding on the ground that the
disclosure waived the privilege or protection
The state and federal laws are in conflict on the question of
waiver
Proper solution: Choose the law that is more protective of
privilege and work product – can be either state or federal!
o Subdivision (f)
The protection against waiver provided by Rule 502 must be
applicable when protected communications or information
disclosed in federal proceedings are subsequently offered in state
proceedings
(III) Inadvertent Waiver
When waiver occurs as a result of inadvertent document disclosure, courts have
limited the scope of that waiver based on the circumstances involved and overall
fairness
Should the prosecutor be able to keep the other attorney‟s confidential memo?
o It is a challenge between your duty as zealous advocacy on behalf of your client
to the best interest, and your duty to recognise when something is a mistake. Do
not take advantage of what was obvious an inadvertent waiver – it is a tough call
Rule 502 Subsection (b) – The rule opts for a middle ground: inadvertent
disclosure of protected communications or information in connection with a
federal proceeding or to a federal office or agency does not constitute a waiver if
the holder took reasonable steps to prevent disclosure and also promptly took
reasonable steps to rectify the error
(IV) Partial Waiver
Corporations may wish to disclose some or all of the results of internal
investigation, and at times the underlying documentation, to selected govt
officials in the hope that such disclosure will secure for the corporation a
declination of official action or at least sentencing consideration. Corporations
may also feel pressured to share the results of their internal investigation with 3P
who, for business reasons, want to see them
o Redact the memo
o FRE 106: Completeness rule – to fully understand the concept, you cannot just
pick a part of it, I have a right to ALL of it

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o Ultimate rule: what is fair

In considering whether to disclose part or all of an internal investigation,
corporations must consider the possibility of a waiver of otherwise applicable
privileges. In particular, they must consider:
o Whether disclosing selected parts of a report or its underlying
documentation waives the privilege as to the entirety of the report and
documentation or whether courts will accept an assertion of “partial”
waiver; and
o Whether courts will accept a “selective” waiver agreement that disclosure
of the report to a govt agency, prosecutor or grand jury does not waive
the privilege or work product doctrine when other parties (e.g. other govt
entities or private plaintiffs) seek to secure the same materials
Generally, the issue in “partial” waiver cases is not whether the protections
attaching to the material actually disclosed have been waived – that much is clear
The important question in these cases is the scope of any additional waiver, that
is, whether the privilege-holder may argue for a finding of a “partial” waiver of
only the material disclosed
Rule 502: A subject matter waiver (of either privilege or work product) is
reserved for those unusual situations in which fairness requires a further
disclosure of related, protected information, in order to prevent a selective and
misleading presentation of evidence to the disadvantages of the adversary.
Thus, subject matter waiver is limited to situations in which a party
intentionally puts protected information into the litigation in a selective,
misleading and unfair manner
(V) Selective Waiver
Issue: Whether the waiver found may be limited to the party to whom disclosure
was made or whether the waiver as to one person waives the protection of the
attorney-client privilege or work product doctrine as to all other persons

o ATTORNEY-CLIENT PRIVILEGE
Courts may employ a variety of analyses – but the result is often
the same: a refusal to permit a “selective waiver”
All the Circuits (except the 8th) have rejected a “selective” waiver
theory. They have ruled that where otherwise privileged
materials are shown to 3P – either in an attempt to head off
regulatory or criminal action against the corporation, in the
conduct of the corporation‟s business, or in the conduct of
litigation – the protection of the attorney-client privilege are
waived AS TO ANY OTHER PERSON”

o WORK PRODUCT DOCTRINE

Exposure of protected materials to 3P does not automatically
waive the doctrine‟s protection
ADVERSE AND FRIENDLY: A party who discloses documents
protected by the work-product doctrine may continue to assert the
doctrine‟s protection only when the disclosure furthers the
doctrine‟s underlying goals. Generally, this inquiry turns on
whether the disclosure was made to one deemed an “adversary”,
in which case work product protection is lost, or whether it is
turned over to one with a “common interest” under circumstances
that include a legitimate expectation of continued confidentiality,

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in which case the work product protection will be sustained

Disclosure of work product to one adversary is sufficient to waive
the doctrine as to all adversaries
(VI) Court Order and Confidentiality Agreements
Can I turn everything order and agree not to waive A-C/W-P privileges prior to
even a lawsuit?
o Pre-production protective order that reserves the right to A-C/W-P
would promote greater efficiency, rather than having to create a log of
whatever content there is
Under Rule 502(d), a federal court may order that disclosure of privileged or
protected information “in connection with” a federal proceeding does not result
in waiver. But subdivision (d) does not allow the federal court to enter an order
determining the waiver effects of a separate disclosure of the same information in
other proceedings, state or federal
o This subdivision does not provide a basis for a court to enable parties to
agree to a selective waiver of the privilege, such as to a federal agency
conducting an investigation, while preserving the privilege as against
other parties seeking the information
o This subdivision is designed to enable a court to enter an order, whether
on motion of one or more parties or on its own motion, that will allow the
parties to conduct and respond to discovery expeditiously, without the
need for exhaustive pre-production privilege reviews, while still
preserving each party‟s right to assert the privilege to preclude use in
litigation of information disclosed in such discovery
Subdivision (e) codifies the well-established proposition that parties can enter an
agreement to limit the effect of waiver by disclosure between or among them
o This subdivision simply makes clear that while parties to a case may
agree among themselves regarding the effect of disclosure between each
other in a federal proceeding, it is not binding on others unless it is
incorporated into a court order
A state court finding no waiver in connection with a disclosure made in a state
court proceeding is enforceable under existing law in subsequent federal
proceedings
(VII) Individuals’ Attempts to Claim the Corporate Privilege
Recognising that entities can act only through agents, United States v
courts have held that any privilege that attaches to International
communications on corporate matters between corporate brotherhood of
employees and corporate counsel belongs to the Teamsters
corporation, not to the individual employee, and that 119 F.3d 210 (2d Cir.
employees generally may not prevent a corporation from 1997)
waiving the attorney-client privilege arising from such
communications
To ensure that the individual is able to assert a personal The Matter of Bevill
privilege: 805 F.2d at 123
The employee must show they approached counsel for
the purpose of seeking legal advice
They must demonstrate that when they approached
counsel they made it clear that they were seeking legal
advice in their individual rather than in their
representative capacities

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They must demonstrate that the counsel saw fit to

communicate with them in their individual capacities,
knowing that a possible conflict could arise
They must prove that their conversations with counsel
were confidential
They must show that the substance of their conversations
with counsel did not concern matters within the company
or the general affairs of the company
(VIII) Upjohn Warning
Widespread belief among white-collar practitioners that corporate counsel, before
interviewing corporate employees, must give what is commonly referred to as an
“Upjohn Warning”:

1. Counsel represents the company – not the employee – and is interviewing the
employee to gather information in order to provide legal advice to the company
2. The interview is confidential and covered by the attorney-client privilege
3. The privilege belongs to and is controlled by the company
4. Because the company – not the employee – owns the privilege, the company, but
not the employee, may elect in future to waive any privilege and provide
information derived form the interview to 3P, including prosecutors or regulators

Given to preclude an employee from claiming to have believed that the attorney
represented the employee during the interview, so as to claim control of the attorney-
client privilege and prevent the company from disclosing the employee‟s statements
to others.
C. DOJ‟S “COMPELLED-VOLUNTARY” WAIVER POLICY
Holder/Thompson policy: Allows prosecutors to weigh in assessing the adequacy
of a corporation‟s cooperation via the completeness of its disclosure including, if
necessary, a waiver of the attorney-client and work product protections, both
with respect to its internal investigation and with respect to communications
between specific officers, directors, employees and counsel.
o On its face – it does not “require” privilege waivers as a condition for cooperation
credit. The defence bar asserts, however, that prosecutors have used the
language of the standard to request waivers in virtually every corporate
investigation. They object that a policy that requires, in essence, regular
waivers will thwart the rationales underlying the attorney-client privilege and
work product doctrine, resulting in fewer internal investigations into corporate
wrong-doing, less able investigations in cases where some inquiry is
undertaken, and a likelihood that corporate employees will be less willing to
share what they know with investigators
Philip Memo:
o Privilege waivers are not (and assertedly have never been) a prerequisite
for cooperation credit or for declination of criminal charges
o A corporation may freely waive its privileges if it wishes
o BUT that waiver may not be considered when a prosecutor decides
whether to give a corporation credit for tis cooperation in charging
o Rather, the critical determinant is whether the entity has provided
prosecutors with the facts necessary for them to investigate the matter
fairly and responsibly
Sullivan‟s Last Straw Article – collective entities, such as corporations, cannot
claim the Fifth Amendment right against self-incrimination. The attorney-client

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privilege and the work product doctrine are critical, not because they encourage
self-correction or candid communication between corporate client and counsel,
but rather because they serve as a substitute for the Fifth Amendment in criminal
investigation
Corporations regularly threaten to fire employees if they refuse to cooperate with
the govt investigation – that is, if they assert their Fifth Amendment Rights – thus
threatening the corporation‟s chances of a declination from the govt
D. LOSING THE PRIVILEGE: CRIME/FRAUD EXCEPTION
In Re Sealed Case
107 F.3d 46 (D.C.Cir 1997)
Facts Company refused to produce two subpoenaed documents, for
which it was held in contempt. One of the documents is a
memorandum from a Company VP to the P, with a copy to the
Company‟s general counsel. District Court examined both
documents below in camera, but did not decide whether they were
covered by the privilege or the work product doctrine
The memorandum reflects a conversation between the P and the
Company‟s general counsel about campaign finance laws. The
Company withheld it on the basis of the attorney-client privilege.
o Background: Company‟s political action committee had contributed
the maximum amount permitted by law to a former candidate for
federal office who was seeking to retire his campaign debt. VP
wrote his memorandum, had discussion with general counsel.
o Later in the same month, VP called two people who did biz with
the coy, asked them to contribute to former candidate. They did.
After several weeks had passed, VP authorised checks to be drawn
from his dept‟s budget to reimburse these individuals not only for
the amount of their contributions, but also to make up for the
additional taxes they would incur from reporting the
reimbursement as income. VP‟s solicitation may have been
permissible, but according to govt, the use of the corporate funds
was illegal
o In grand jury, VP invoked attorney-client privilege on behalf of
the Company. District court ruled that the crime-fraud exception
applied and ordered him to testify about the late Aug 1994
meeting
The other document is a memorandum written by the general
counsel, apparently at the request of outside counsel. The Company
with held it on the basis of the attorney-client privilege
o A year later, the internal counsel wrote a memo at the request of
outside counsel regarding the incident
Holding Attorney-Client privilege is subject to crime-fraud
exception. Two conditions must be met:
o Client must have made or received the otherwise
privileged communication with the intent to further
an unlawful or fraudulent act.
o Client must have carried out the crime or fraud
The privilege is the client‟s, and it is the client‟s fraudulent or
criminal intent that matters. A 3P‟s bad intent cannot remove the
protection of the privilege
The person asserting the privilege must prove the privilege

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Memorandum reflecting a conversation between P and the

Company‟s General Counsel:
Burden on Govt to prove its case:
o Level of proof: Is it a “prima facie” (accepted in the Second Circuit),
preponderance of the evidence, clear and convincing evidence, or
something else? The answer lies in In re Sealed Case, “the
government satisfies its burden of proof if it offers evidence that
if believed by the trier of fact (jury) would establish the
elements of an ongoing or imminent crime or fraud”. If the jury
believes, their verdict would be supported.
o Critical consideration: the govt‟s presentation had to be aimed at the
INTENT AND ACTION OF THE CLIENT. It was not enough for
the govt to show that the VP committed a crime after he wrote his
memo and attended the late Aug meeting with Company counsel.
The holder of the privilege is the CLIENT and, in this case, the
client was the COMPANY, NOT THE VP. Unless the govt made
some showing that the Company intended to further and did
commit a crime, the govt could not invoke the crime-fraud
exception to the privilege.

Late August Meeting

Govt evidence reveals that participants discussed campaign finance
laws. That is not enough! One cannot reasonably infer from the
meeting that the Company was consulting its general counsel with
the intention of committing a crime, or even that the VP was then
doing so
True enough, within weeks of the meeting about campaign finance
law, the VP violated the law. But the govt had to demonstrate that
the Company sought the legal advice with the intent to further its
illegal conduct. Showing temporal proximity between the
communication and a crime is not enough
No way to find out if the VP was on a frolic of its own, against the
advice of Company counsel, when he reimbursed the donors with
corporate funds
There are circumstances under which corporations are responsible
for the crimes of their agents. But neither in this court nor in this
district court did the govt offer anything in terms of evidence or law
to support the idea that the Company bore criminal responsibility
for the act of this officer. The govt thus did not sustain its burden

Memorandum by the Company‟s general counsel, written to the file

and relating to matters that occurred one year after the VP‟s illegal
action:
This document is covered by work product immunity rather than
the attorney-client privilege. The protection for attorney work
product is broader than the attorney-client privilege, but less
absolute
Work product immunity covers not only confidential
communications between the attorney and client. It also attaches to
other materials prepared by attorneys (and their agents) in
anticipation of litigation. Like the attorney-client privilege, work

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product immunity promotes the rendering of effective legal services

Crime-fraud exception calls for a somewhat different inquiry here:
Focus is not on the client‟s intent regarding a particular
communication, but on the client‟s intent in consulting the lawyer
or in using the materials the lawyer prepared. The question is: Did
the client consult the lawyer or use the material for the purpose of
committing a crime or fraud?
As in apparent from the nature of the inquiry, the crime-fraud
exception for work product immunity cannot apply if the attorney
prepared the material after his client‟s wrongdoing ended
Note Split opinion: Regarding the first prong of the crime-fraud exception,
the Second Circuit rejected the need for it to actually take place,
stating that “it need only have been the objective of the client‟s
communication. The client need not have succeeded in his criminal
or fraudulent scheme for the exception to apply. If a fraudulent
plan were ineffective, the client‟s communications would not
thereby be protected from disclosure”
Split opinion: Regarding the second prong, courts vary in how they
express the degree of relatedness required between the criminal or
fraudulent intent of the client and the communications sought to be
revealed
o Can be “reasonably relate”, “close relationship”, “potential
relationship”
o Why require a demonstrated nexus between the intended crime
and the communications at issue? “Seal of secrecy” between
lawyer and client does not extend to communications from
the lawyer to the client made by the lawyer for the purpose
of giving advice for the communication of a fraud or crime.
The seal is broken when the lawyer‟s communication is
meant to facilitate future wrongdoing by the client. Where
the client commits a fraud or crime for reasons completely
independent of legitimate advice committed by the lawyer,
the seal is not broken, for the advice is, logicians explain, non
causa pro causa
E. PRIVILEGES OF GOVERNMENTAL ACTORS
In Re Grand Jury Investigation
399 F.3d 527 (2d Cir. 2005)
Facts Federal grand jury subpoenaed the testimony of Anne George,
former chief legal counsel to the Office of the Governor of
Connecticut. US Attorney Office was investigating whether
Governor Rowland and members of his staff had received gifts in
return for public favours, including the favourable negotiation and
awarding of state contracts. Anne George declined to submit herself
to voluntary interview, as she believed that the info was protected
by attorney-client privilege
Eventually, she testified before the grand jury that all conversations
were in confidence and conducted for the purpose of providing
legal advice. Governor Office was of the view that they were
protected by the A-C privilege, which it declined to waive
The district court sought to distinguish between govt attorney-

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