Fisher v. United States United States v. Kasmir

• Citation: 425 U.S. 391,48 L.Ed.2d 39,96 S.Ct. 1569
• Decision Date: 21 April 1976
• Docket Number: Nos. 74-18,74-611,s. 74-18
• Parties: Solomon FISHER et al., Petitioners, v. UNITED STATES et al. UNITED STATES et al., Petitioners, v. C. D. KASMIR and Jerry A. Candy
• Court: U.S. Supreme Court

425 U.S. 391

96 S.Ct. 1569

48 L.Ed.2d 39

Solomon FISHER et al., Petitioners,

v UNITED STATES et al.

UNITED STATES et al., Petitioners,

v. C. D. KASMIR and Jerry A. Candy.

Nos. 74-18, 74-611.

Argued Nov. 3, 1975.

Decided April 21, 1976.

Syllabus

In each of these cases taxpayers, who were under investigation for possible civil or criminal liability under the federal income tax laws, after having obtained from their respective accountants certain documents relating to the accountants' preparation of their tax returns, transferred the documents to their respective attorneys to assist the taxpayers in connection with the investigations. Subsequently, the Internal Revenue Service served summonses on the attorneys directing them to produce the documents, but the attorneys refused to comply. The Government then brought enforcement actions, and in each case the District Court ordered the summons enforced. In No. 74-18 the Court of Appeals affirmed, holding that the taxpayers had never acquired a possessory interest in the documents and that the documents were not immune from production in the attorney's hands. But in No. 74-611 the Court of Appeals reversed, holding that by virtue of the Fifth Amendment the documents would have been privileged from production pursuant to a summons directed to the taxpayer if he had retained possession, and that, in light of the attorney-client relationship, the taxpayer retained such privilege after transferring the documents to his attorney. Held :

1. Compelled production of the documents in question from the attorneys does not implicate whatever Fifth Amendment privilege the taxpayer-clients might have enjoyed from being themselves compelled to produce the documents. Pp. 396-401.

(a) Whether or not the Fifth Amendment would have barred a subpoena directing the taxpayers to produce the documents while they were in their hands, the taxpayers' privilege under that Amendment is not violated by enforcing the summonses because enforcement against a taxpayer's lawyer would not "compel" the taxpayer to do anything, and certainly would not compel him to be a "witness" against himself, and the fact that the attorneys are agents of the taxpayers does not change this result. Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548. Pp. 396-398.

(b) These cases do not present a situation where constructive possession of the documents in question is so clear or relinquishment of possession so temporary and insignificant as to leave the personal compulsion upon the taxpayer substantially intact, since the documents sought were obtainable without personal compulsion upon the taxpayers. Couch, supra. P. 398.

(c) The taxpayers, by transferring the documents to their attorneys, did not lose any Fifth Amendment privilege they ever had not to be compelled to testify against themselves and not to be compelled themselves to produce private papers in their possession, and This personal privilege was in no way decreased by the transfer. Pp. 398-399.

(d) Even though the taxpayers, after transferring the documents to their attorneys, may have had a reasonable expectation of privacy with respect to the documents, the Fifth Amendment does not protect private information obtained without compelling self-incriminating testimony. Pp. 399-401.

2. Although the attorney-client privilege applies to documents in the hands of an attorney which would have been privileged in the hands of the client by reason of the Fifth Amendment, the taxpayer-clients in these cases would not be protected by that Amendment from producing the documents in question, because production of such documents involves no incriminating testimony and therefore the documents in the hands of the taxpayers' attorneys were not immune from production. Pp. 402-414.

(a) The Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial communication that is incriminating. P. 408.

(b) Here, however incriminating the contents of the accountants' workpapers might be, the act of producing them the only thing that the taxpayers are compelled to do would not itself involve testimonial self-incrimination, and implicitly admitting the existence and possession of the papers does not rise to the level of testimony within the protection of the Fifth Amendment. Pp. 409-414.

No. 74-18, 500 F.2d 683, affirmed; No. 74-611, 499 F.2d 444, reversed.

Lawrce G. Wallace, Washington, D. C., for the U. S.

Robert E. Goodfriend for Kasmir et al.

Richard L. Bazelon, Philadelphia, Pa., for Fisher et al.

Mr. Justice WHITE delivered the opinion of the Court.

In these two cases we are called upon to decide whether a summons directing an attorney to produce documents delivered to him by his client in connection with the attorney-client relationship is enforceable over claims that the documents were constitutionally immune from summons in the hands of the client and retained that immunity in the hands of the attorney.

I

In each case, an Internal Revenue agent visited the taxpayer or taxpayers ¹ and interviewed them in con- nection with an investigation of possible civil or criminal liability under the federal income tax laws. Shortly after the interviews one day later in No. 74-611 and a week or two later in No. 74-18 the taxpayers obtained from their respective accountants certain documents relating to the preparation by the accountants of their tax returns. Shortly after obtaining the documents later the same day in No. 74-611 and a few weeks later in No. 74-18 the taxpayers transferred the documents to their lawyers respondent Kasmir and petitioner Fisher, respectively each of whom was retained to assist the taxpayer in connection with the investigation. Upon learning of the whereabouts of the documents, the Internal Revenue Service served summonses on the attorneys directing them to produce documents listed therein. In No. 74-611, the documents were described as "the following records of Tannebaum Bindler & Lewis (the accounting firm).

"1. Accountant's workpapers pertaining to Dr. E. J. Mason's books and records of 1969, 1970 and 1971.²

"2. Retained copies of E. J. Mason's income tax returns for 1969, 1970 and 1971.

"3. Retained copies of reports and other correspondence between Tannebaum Bindler & Lewis and Dr. E. J. Mason during 1969, 1970 and 1971."

In No. 74-18, the documents demanded were analyses by the accountant of the taxpayers' income and expenses which had been copied by the accountant from the taxpayers' canceled checks and deposit receipts.³ In No 74-611, summons was also served on the accountant directing him to appear and testify concerning the documents to be produced by the lawyer. In each case, the lawyer declined to comply with the summons directing production of the documents, and enforcement actions were commenced by the Government under 26 U.S.C. §§ 7402(b) and 7604(a). In No. 74-611, the attorney raised in defense of the enforcement action the taxpayer's accountant-client privilege, his attorney-client privilege, and his Fourth and Fifth Amendment rights. In No. 74-18, the attorney claimed that enforcement would involve compulsory self-incrimination of the taxpayers in violation of their Fifth Amendment privilege, would involve a seizure of the papers without necessary compliance with the Fourth Amendment, and would violate the taxpayers' right to communicate in confidence with their attorney. In No. 74-18 the taxpayers intervened and made similar claims.

In each case the summons was ordered enforced by the District Court and its order was stayed pending appeal. In No. 74-18, 500 F.2d 683 (CA3 1974), petitioners' appeal raised, in terms, only their Fifth Amendment claim, but they argued in connection with that claim that enforcement of the summons would involve a violation of the taxpayers' reasonable expectation of privacy and particularly so in light of the confidential relationship of attorney to client. The Court of Appeals for the Third Circuit after reargument en banc affirmed the enforcement order, holding that the taxpayers had never acquired a possessory interest in the documents and that the papers were not immune in the hands of the attorney. In No. 74-611, a divided panel of the Court of Appeals for the Fifth Circuit reversed the enforcement order, 499 F.2d 444 (1974). The court reasoned that by virtue of the Fifth Amendment the documents would have been privileged from production pursuant to summons directed to the taxpayer had he retained possession and, in light of the confidential nature of the attorney-client relationship, the taxpayer retained, after the transfer to his attorney, "a legitimate expectation of privacy with regard to the materials he placed in his attorney's custody, that he retained constructive possession of the evidence, and thus . . . retained Fifth Amendment protection." ⁴ Id., at 453. We granted certiorari to resolve the conflict created. 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975). Because in our view the documents were not privileged either in the hands of the lawyers or of their clients, we affirm the judgment of the Third Circuit in No. 74-18 and reverse the judgment of the Fifth Circuit in No. 74-611.

II

All of the parties in these cases and the Court of Appeals for the Fifth Circuit have concurred in the proposition that if the Fifth Amendment would have excused a Taxpayer from turning over the accountant's papers had he possessed them, the Attorney to whom they are delivered for the purpose of obtaining legal advice should also be immune from subpoena. Although we agree with this proposition for the reasons set forth in Part III, Infra, we are convinced that, under our decision in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), it is not the taxpayer's Fifth Amendment privilege that would excuse the Attorney from production.

...