Protecting Attorney Client Relationship, Privileged Information from Government Subpoena


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The attorney work-product and the attorney-client privilege are often confused with each other. Although related, insofar as they both concern the attorney client relationship, they are distinct privileges protecting different types of information for completely different rationales. The attorney client privilege protects all information disclosed to a lawyer for purposes of receiving legal advice, allowing unfettered communication between lawyer and client.  The “work product” privilege protects the fruits of a lawyer’s efforts and prevents unnecessary intrusion into the lawyer’s thought processes, allowing the lawyer to freely investigate and assemble information.


“Work Product” was discussed in 1947 by the U.S. Supreme Court inHickman v. Taylor when it acknowledged the necessity of protecting a lawyer’s thoughts from unnecessary intrusion by opposing counsel.  This privacy was thought necessary to allow a lawyer the ability to properly represent the client and adequately prepare for the case by freely assembling information, sifting through relevant and irrelevant facts, preparing legal theories and planning a strategy without undue and needless interference.  Otherwise, the court said, an attorney’s thoughts would no longer be his own and forced disclosure of these thoughts would demoralize the profession and be injurious to the cause of justice.


In 1995 the Texas Supreme Court in Occidental Chemical Corp. v. Banales described “work product” as protecting two types of information: “First, the privilege protects the attorney’s thought process, which includes strategy decisions and issue formulation, and notes or writings evincing those mental processes. Second, the privilege protects the mechanical compilation of information to the extent such compilation reveals the attorney’s thought processes.”


Rule 192.5(a) of the Texas Rules of Civil Procedure subsequently defined what “work product” comprises:


(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representative, including the party’s attorney, consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.


Five years after Banales the Texas Supreme Court in In re George clarified work product as any material “created in anticipation of trial that has not been placed in the public record or shared with the other side.”


A case before the Ninth Circuit Court of Appeals in 2010, in In re Grand Jury Subpoenas, stirred significant controversy related to work product materials subpoenaed for a grand jury criminal investigation. In that case, the Government was conducting an antitrust investigation into criminal conduct by the clients of a number of law firms. In separate civil proceedings, the law firms had obtained non-privileged material through the discovery process; namely, documents originating outside the United States.  The Government then demanded these documents pursuant to their criminal-related subpoena power authorized by Rule 17 of the Federal Rules of Criminal Procedure.


The law firms filed a motion to quash the subpoenas. The district court admitted that it could find no authority supporting the motion. Thus, the court concluded that “because the motions to quash raise novel issues with potentially far-reaching implications about the power of the grand jury and the relationship between grand jury proceedings and civil discovery of unindicted foreign defendants,” it found that it was “more prudent to quash the subpoenas and allow the [Government] to raise these issues on appeal to the Ninth Circuit.”


The Ninth Circuit was not sympathetic to the Law Firms, finding:

On appeal, the Law Firms argue that the district court exercised its discretion under Fed. R. Crim. P. 17 to quash the subpoenas and that the court of appeals should respect its reasonable exercise of discretion. We do not read the district court’s decision as an exercise of discretion but as a passing of the decision to this court. We are not reviewing an exercise of discretion but a request for guidance.


No collusion between the civil suitors and the government has been established or even suggested by the Law Firms. Indeed, the district court determined that the government had not engaged in any bad faith tactics. Moreover, the Law Firms do not claim that the documents are privileged. Accordingly, we apply our per se rule that a grand jury subpoena takes precedence over a civil protective order. By a chance of litigation, the documents have been moved from outside the grasp of the grand jury to within its grasp. No authority forbids the government from closing its grip on what lies within the jurisdiction of the grand jury.


The Law Firms sought certiorari review before the U.S. Supreme Court. They were supported through amicus curiae briefs by the following organizations and groups: the American Bar Association (ABA), the National Association of Criminal Defense Lawyers, the Washington Legal Foundation (WLF), and the U.S. Chamber of Commerce and DRI, jointly. Each of these interested parties argued against a per se enforcement of grand jury subpoenas directed to attorneys for client information. The ABA brief put it this way:


The Ninth Circuit has adopted a per se rule that grand jury subpoenas always take precedence over civil protective orders, even where a prosecutor uses a grand jury’s broad investigative subpoena power to compel a lawyer to produce client information. That ruling directly implicates an existing conflict among the circuit courts on an issue of great importance to the legal profession. The question presented moreover has significant potential to affect the trust and confidence that are the essential foundations of the attorney-client relationship.


The ABA has adopted policies against per se enforcement of subpoenas because of their potential to undermine the attorney-client relationship. Beyond information protected by the attorney-client privilege, a lawyer is obligated in the attorney-client relationship to maintain a client’s confidences except as directed by the client in the course of the representation. This per se approach overrides this element of confidence by compelling the lawyer served with a subpoena to act contrary to the interests of the client without an inquiry as to whether the government has other means for obtaining the information. Thus, clients under grand jury investigation may hold back important information from their lawyers out of fear that their counsel will be compelled to produce to the government information that was disclosed to the lawyer through the attorney-client relationship.


Much of the “work product” material by an attorney is derived, directly or indirectly, from the confidences of the client. The per se enforcement forces an attorney whose client is under continuing investigation to make hard choices about what (non-privileged) material to compile and maintain, knowing it is subject to grand jury subpoena if is actually compiled and maintained. As the COC/DRI brief pointed out: “ … the per se rule adopted by the Ninth Circuit’s decision places defendant in an ‘untenable position’ of choosing between the adverse risk of consequences in civil litigation and the risk of self-incrimination in a parallel criminal investigation.”


A primary distinction between the “work product” privilege and the attorney-client privilege lies in the “confidentiality” needed in the attorney-client relationship to the client’s interests in a criminal (or civil) proceeding while the “work product” privilege is designed almost exclusively to protect material from disclosure to opposing parties in litigation. Disclosure of confidences in the attorney-client privilege automatically waives that privilege while disclosure of non-privileged material does not automatically waive the work product privilege. Significantly, however, misconduct, more often referred to the crime-fraud exception, by either the attorney or client may waive either privilege if there is prima facie evidence of misconduct by either of them.


Hickman confined itself to the disclosure of non-privileged documents, including the non-privileged portions of an otherwise protected document. The Hickman court placed work product materials into two categories: fact work product and opinion work product. Fact work product is material assembled by the attorney that does not include his/her mental processes, conclusions, opinions or legal theories. The Fifth Circuit in In re Thompson held that the fact work product protection is qualified and, therefore, can be overcome by a showing of need and hardship.


It is easy to discern why absolute attorney-client privilege and the qualified work product privilege have produced significant legal head-butting. The Sixth Circuit in 1986 in In re Antitrust Grand Jury excellently detailed this history (absent the decision’s internal citations):


The policies underlying the attorney-client privilege and the attorney work product doctrine are well documented in the annals of legal history. The purpose of the attorney-client privilege is to encourage clients to communicate freely and completely with their attorney. The privilege also serves the purpose of promoting “broader public interests in the observance of law and administration of justice.” However, it is not an absolute privilege. It applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice. Under some circumstances the privilege is to be very narrowly construed. All reasons for the attorney-client privilege are completely eviscerated when a client consults an attorney not for advice on past misconduct, but for legal assistance in carrying out a contemplated or ongoing crime or fraud.


There may be some overlap, but the work product doctrine “is distinct from and broader than the attorney-client privilege.” Where only confidential communications are protected by the attorney-client privilege, the work product doctrine protects any document prepared in anticipation of litigation by or for the attorney. Moreover, only the client may assert the attorney-client privilege while both the attorney and the client may invoke the work product doctrine.


The premier case shaping the contours of the work product doctrine is Hickman v. Taylor. The Supreme Court in Hickman observed the dangers inherent in permitting unwarranted disclosure of an attorney’s work product materials and limited the scope of the discovery of those materials.


Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.”


Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore, inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.


We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.


Some courts interpreting Hickman have defined two types of work product. Ordinary fact or “unprivileged fact” work product, as referred to in Hickman, is written or oral information transmitted to the attorney and recorded as conveyed by the client. The presumption in favor of nondisclosure is shifted with respect to fact work product. When there has been an ongoing client crime or fraud, any privilege to fact work product is waived and the “scale tips in favor of disclosure.”


Opinion work product is any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments or legal theories. The Court in Hickman observed that “not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.” One court has interpreted Hickman as giving opinion work product nearly absolute immunity. But even this privilege can be waived by a client when the attorney was consulted in furtherance of a crime or fraud.


However, since this privilege is jointly shared, an unknowing attorney may successfully assert the privilege even in the face of a client’s fraud or crime. Indeed, there may be rare occasions when the attorney knowingly participates in a guilty client’s ongoing fraud or crime. In those rare instances, none of the public policies advanced in support of the privilege would be served if an attorney who committed a crime or fraud could shield himself from prosecution or litigation because he asserted the work product doctrine. Therefore, to speak of the work product doctrine as an absolute privilege enjoyed by either the attorney or the client is wrong.


Essentially, the overriding purpose of both the attorney-client and the work product privileges is to encourage the proper functioning of the adversary system. Often, however, these privileges come into conflict with other societal interests when they are invoked during a grand jury investigation.


Invocation of [either] privilege before the grand jury could jeopardize an effective and comprehensive investigation into alleged violations of the law, and thereby thwart that body’s dual functions of determining “if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.”


Recognizing this inherent tension between the two interests, the courts have applied an exception when the otherwise protected communications or materials are made in furtherance of a crime or fraud. As it has been so designated, the crime-fraud exception has been applied in a number of cases where the attorney-client privilege has been invoked during the grand jury investigation. The exception has also been applied in cases involving a privilege asserted under the work product doctrine.

The government sought to compel the production of a number of documents listed in Exhibit C. In analyzing whether the documents requested by the government were within the crime-fraud exception to the attorney-client privilege or attorney work product doctrine, the district court utilized a test formulated and applied by a number of other circuits. First, the government must make a prima facie showing that a sufficiently serious crime or fraud occurred to defeat the privilege; second, the government must establish some relationship between the communication at issue and the prima facie violation.


The court relied on the “evidence presented in Exhibit B as supplemented by the facts of a related case,” in concluding that a prima facie antitrust violation had occurred. It described the burden satisfied by the Government to support the prima facie violation as that which would “permit a court to deny an initial motion for a directed verdict if such proof were submitted at trial.” The court further reasoned that since the government had established a prima facie case that the transaction violated the Sherman Act, all legal assistance provided by the law firms was in furtherance of that violation. It then ordered the appellants to produce every document requested by the Government in Exhibit C that was withheld as privileged attorney-client material. It also ordered the appellants to produce all documents withheld that constituted fact work product. All opinion work product was found to be protected by the doctrine.


The court retained the power to conduct an in camera examination of that document in the event that any of the parties disputed the characterization of any document.


We agree with the ABA and the other groups arguing against per se disclosure of material sought by the Government in grand jury investigations. The grand jury is a powerful investigative tool frequently used by the Government to create a crime when none exists. A source of controversy throughout its existence, we do not like the secret inquisition nature of grand juries. The enforcement of a per se disclosure rule, as advanced by the Ninth Circuit, forces an attorney, especially one representing a client under continuing criminal investigation, to caution the client about disclosing too much confidential information—and this caution has a chilling effect on the very nature of the attorney-client relationship; and, in many ways, can impact the quality of the representation to the client.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization