Saltzburg Article on Privilege Assertion to Grand Jury Subpoenas for Documents (3/11/13)

As readers know, there has been a flurry of activity recently regarding grand jury subpoenas for records required to be maintained for FBAR reportable foreign financial accounts and the potential for application of the Fifth Amendment privilege based upon testimony inherent in the act of production.  (See the required records link below.) I have just read Stephen A. Saltzburg's article titled Privilege Objections to Grand Jury Subpoenas for Documents, 27 ABA Criminal Justice, Number 3, 44 (Fall 2012).  Professor Saltzburg's article deals with related issues although not in a required records context.  The article discusses the assertion of the attorney-client privilege and the Fifth Amendment privilege in a recent case, In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65 (1st Cir. 2011), here.

The subpoena in question was to a law firm requesting documents in the possession of the firm.  The facts and the analysis of the First Circuit (Judge Selya for the panel, in his usual style) are interesting and I refer readers to the opinion.  I thought what would be most helpful to busy readers, however, are Mr. Saltzburg's "Lessons" from the opinion.

1. Grand juries have broad subpoena power and can issue subpoenas to clients, lawyers or both.  The subpoenas need not be based on reasonable suspicion or probable cause.
2. A valid claim of privilege can trump a grand jury subpoena and result in its being quashed, but the burden is on the person claiming privilege to demonstrate entitlement.  Although the First Circuit did not finally determine the burden that applies, it is likely to be a preponderance of the evidence in most cases.  [JAT Note: The client had claimed that he must simply make a prima facie showing, but the First Circuit said that it did not have to resolve the issue because the client's showing did not even rise to a prima facie case.]
3. Not all documents that clients give to lawyers or that lawyers prepare for clients are privileged.  Generally speaking, preexisting documents (i.e., those that existed before the attorney-client relationship) are not privileged because they were not made as part of the attorney-client relationship.  What clients tell their attorney about preexisting documents will be privileged, as long as the clients are seeking legal advice.
4. A lawyer who acts as a mere scrivener or a disburser of money may not be deemed to be providing legal advice, and the privilege may not attach to documents prepared by a scrivener that simply reflect a disbursement.
5. A person may validly claim a privilege against self-incrimination when production of a document may be tantamount to providing incriminating information.  As Mr. S. recognized "[s]uch a case may arise when an individual's compelled production of documents would amount to a tacit concession that the documents exist, are authentic, and are in his custody or control."  (Id. at 73.) But the burden is on a person claiming the privilege to who that there is a reason to believe that productions could be incriminating.
6. Finally, clients may object to their lawyers responding to subpoenas where production by the lawyer would violate the attorney-client privilege as Fisher recognized. But to successfully object, a client must show that, if the documents were in the clients hands, production in response to a subpoena would violate the clients privilege against self-incrimination.