Brief Fact Summary. The Court considers two cases in which defendants attempted to claim privileged status under the attorney-client privilege and the Fifth Amendment for various financial records and documents delivered to attorneys in anticipation of IRS action.
Synopsis of Rule of Law. The Fifth Amendment and the attorney-client privilege do not protect incriminating evidence that is not testimonial or disclosed to an attorney in anticipating of litigation.
Issue. Both Fifth Amendment and attorney-client issues are discussed:
May a taxpayer’s attorney be compelled by subpoena to provide incriminating evidence in the form of business-related books and papers?
Should the attorney-client privilege protect these records from subpoena?
Yes. The Fifth Amendment only protects a defendant from compelled production of incriminating evidence that is explicitly testimonial.
No. This privilege would only have protected these records if they would have already been protected from subpoena while in the client’s care. Since these were wholly business-related documents that had already been thoroughly reviewed by accountants, they would be eligible for this privilege under any circumstances.
Concurrence. Brennan: Agrees with the reasoning, but believes that the majority has gone too far and opened the door for further erosion of the protection against compelled production of private books and papers.
Discussion. This is an essential case regarding the attorney-client and work product privileges.