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.

Are Kastigar Hearings Required Beyond Compelled Testimony Situations (7/30/12)

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that, where a witness who has invoked the Fifth Amendment is nevertheless compelled to testify by court order, the protection to insure that the prosecutors do not improperly benefit from the compelled testimony is a hearing in which the prosecutors must prove that its case will not be based on that evidence.  By way of background, in earlier cases, the Court had determined that the compelled testimony under 18 U.S.C. §§ 6002 and 6003 was use and derivative use immunity (as opposed to solely use immunity).  Use and derivative use immunity, the Court had opined, was coterminous with the Fifth Amendment Privilege, and thus fully protective of that Privilege even when the witness's assertion of the Privilege is overridden by the order to testify.  In Kastigar, the Court carved out a procedure, called the Kastigar hearing, where the prosecutors must prove that the Government's case is not based on tainted compelled testimony.  "This burden of proof . . . is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Kastigar, 406 U.S. at 460.  The requirement for a predicate Kastigar hearing is a substantial protection for a witness who may later become a defendant because the rigors of the burden imposed on the Government to prove lack of use in the case are substantial.  (For other blog entries on Kastigar, see here.)

One question that has lingered since Kastigar is whether there might be other areas, particularly in the context of privileged communications, where a Kastigar-like hearing is compelled in order to preserve the privilege.  Keep in mind that, if, at trial, the Government attempts improperly to use privileged communications (say attorney-client communications), the defense can object and the matter of the proper use of such communications can be resolved at that time.  Alternatively, the defense might obtain some form of advance hearing via a motion in limine by mounting a credible argument that the Government may improperly rely upon privileged documents.  These "corrective mechanisms" could be available even in compelled testimony over Fifth Amendment privileges, but the Supreme Court had granted in Kastigar the right to the hearing in which the burden is on the Government to disprove improper use.  So, one might think, why would this need for a Kastigar-like corrective mechanism not apply to other potential improper use of other privileged materials the Government posseses?