Horn, In re, 91-15577

Decision Date25 November 1992
Docket NumberNo. 91-15577,91-15577
Parties, 36 Fed. R. Evid. Serv. 1224 In re Grand Jury Subpoena Issued to Gerson S. HORN. UNITED STATES of America, Plaintiff-Appellee, v. Gerson S. HORN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David A. Nickerson, Mazer & Nickerson, San Francisco, Cal., for defendant-appellant.

William T. McGivern, Jr., U.S. Atty., Rory K. Little, Harry P. Litman and Catharine M. Goodwin, Asst. U.S. Attys., San Jose, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: FERGUSON, REINHARDT, and KOZINSKI, Circuit Judges.

REINHARDT, Circuit Judge:

Gerson Horn, an attorney, appeals from an order holding him in contempt for refusal to comply with a subpoena duces tecum after his motion to quash the subpoena was denied. Because the subpoena issued to Horn is so sweeping that it unquestionably covers a great deal of material that is protected by the attorney-client privilege, because the subpoena contains the impermissible request that Horn provide the grand jury with a description of all documents for which the privilege is claimed and an explanation as to his reasons for claiming the privilege, and because the government has not made a prima facie showing that the crime-fraud exception to the privilege applies, we conclude that Horn was not required to submit any of the documents for in camera inspection by the district court. Accordingly, we reverse.

I

Horn is a criminal defense attorney who practices in Beverly Hills, California. The dispute before us arises out of a federal investigation of certain financial transactions involving one of Horn's clients, Doe, as well as a number of other individuals who may or may not be Horn's clients.

On May 15, 1990, a federal grand jury issued a subpoena duces tecum to Horn naming fourteen individuals and two corporations. The subpoena sought production of "[a]ny and all records, papers and/or documents pertaining to financial transactions by, with, between or on behalf of [the named individuals and corporations], and/or any and all businesses associated with the above-named persons or entities, for the period of January 1, 1984, through the present...." The subpoena also specifically requested Horn to produce documents relating to fee arrangements between himself and any of the named individuals or corporations, and documents "relating to any funds or anything of value held in any trust account(s)" for any of the named individuals or corporations. The subpoena stated that it did not intend to request privileged documents, and that if Horn thought that privileged documents were called for he should describe those documents and his reasons for believing they were privileged to the grand jury. 1

Horn moved to quash the subpoena on the grounds that the subpoena was overbroad and unreasonable in violation of Federal Rule of Criminal Procedure 17, that compliance with the subpoena would violate the attorney-client privilege, and that the subpoena violated his fifth amendment privilege against self-incrimination. The district court denied the motion to quash and ordered Horn to produce for in camera inspection any documents that he claimed were protected either by attorney-client privilege or by his fifth amendment privilege.

The denial of a motion to quash a subpoena is immediately appealable only if the party served with the subpoena refuses to comply and is held in contempt. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581, 29 L.Ed.2d 85 (1971); In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 853 (9th Cir.1991). Accordingly, Horn notified the government and the court of his refusal to comply with the subpoena and requested that a contempt order issue. The government stipulated that Horn was in contempt of the district court order to produce the documents. The district court issued the requested contempt order, but stayed its execution pending our final decision on appeal. This timely appeal followed. On appeal, Horn does not raise his fifth amendment privilege against self-incrimination argument, but only the overbreadth and attorney-client privilege arguments.

II

Horn argues that compliance with the request for production of all documents relating to fee arrangements and trust accounts would violate the attorney-client privilege for two reasons. First, he argues, it would require him to identify which of the individuals named in the subpoena are his clients, thereby incriminating those individuals. He admits without naming any names that, in addition to Doe, five of the fourteen individuals listed in the subpoena are his clients. Second, he contends that compliance with the subpoena would result in the disclosure of confidential attorney-client communication. We address each argument in turn.

"The purpose of the attorney-client privilege is to protect every person's right to confide in counsel free from apprehension of disclosure of confidential communications." In re Grand Jury Subpoena (Osterhoudt), 722 F.2d 591, 593 (9th Cir.1983) (citing United States v. Sherman, 627 F.2d 189, 192 (9th Cir.1980); Baird v. Koerner, 279 F.2d 623, 629-30 (9th Cir.1960)); see also Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). Information regarding the amount paid for legal services or the form of payment ordinarily does not disclose the subject matter of the professional consultation. Similarly, the identity of a client usually does not indicate the purpose for which legal advice was sought or reveal any subsequent confidential communications made during the course of the attorney-client relationship. Accordingly, the attorney-client privilege ordinarily protects neither a client's identity nor information regarding the fee arrangements reached with that client. Osterhoudt, 722 F.2d at 593; Sherman, 627 F.2d at 191-92.

The general rule described in Osterhoudt and Sherman contains an obvious exception, however. An attorney may invoke the privilege to protect the identity of a client or information regarding a client's fee arrangements if disclosure would "convey[ ] information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client." Baird v. Koerner, 279 F.2d 623, 632 (9th Cir.1960). Thus, for example, the identity of a client is privileged information if revelation of that identity would constitute an acknowledgement of guilt of the offense that led the client to seek legal assistance. Id. at 633. Fee information may be privileged if it would "provide the 'last link' in the chain of evidence incriminating the client." In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 365 (9th Cir.1982) (quoting In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982) (en banc)).

Horn argues that the identities and fee arrangements of his five unnamed clients are privileged under Baird and Lahodny because disclosure of the information would incriminate them in the offense under investigation. In light of our prior opinions regarding the scope of the Baird exception, we must reject Horn's argument. As we explained in Osterhoudt and Sherman, the Baird exception is an extremely narrow one. Otherwise unprotected information does not become privileged merely because that information might provide evidence of a client's wrongdoing. Osterhoudt, 722 F.2d at 593; Sherman, 627 F.2d at 192. The terms "confidential" and "incriminating" are not synonymous. In order to qualify for the protection afforded by the attorney-client privilege, information regarding client identity or legal fees must be "in substance a disclosure of the confidential communication in the professional relationship between the client and the attorney." Osterhoudt, 722 F.2d at 593. Neither the identities of Horn's five clients nor the bare financial details of their fee arrangements with Horn satisfy that standard. Because the government's request for information was not confined to those items, however, that conclusion does not end our inquiry.

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