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Attorney-Client Privilege: Shielding Communications When Facing a Federal Subpoena

Attorney-Client Privilege: Shielding Communications When Facing a Federal Subpoena

We get it. Receiving a federal subpoena can be downright scary. You likely have a ton of questions about what it means and what could happen next. And you’re probably freaking out about protecting your private communications with your attorney. Trust us, we would be too! This article breaks down the key things to know about attorney-client privilege and how it allows you to shield sensitive information when dealing with a federal subpoena.

What is Attorney-Client Privilege?

Attorney-client privilege refers to the legal right that allows for confidential communications between an attorney and their client. The privilege means that certain conversations and documents exchanged as part of seeking or receiving legal advice cannot be disclosed without permission. The purpose is to encourage open and honest communication between lawyers and clients.There are a few requirements that must be met for attorney-client privilege to apply:

• The communication must be between a client and an attorney, who has been retained to provide legal advice or services
• The communication must be made in confidence
• The communication must relate to seeking or receiving legal advice

If these conditions are satisfied, neither the attorney nor the client can be legally compelled to share privileged details about their discussions or documents.Attorney-client privilege is considered so fundamental within the American legal system that it’s protected under common law, as well as by the rules of evidence. It preserves the confidential relationship critical for proper legal representation.

When Does Attorney-Client Privilege Apply in Federal Cases?

Attorney-client privilege operates similarly in both federal and state legal proceedings. Federal common law governs the application of attorney-client privilege for federal agencies and courts under the Federal Rules of Evidence.There are limited exceptions when the privilege can be overridden in federal cases, such as:

• Crime-fraud exception – Conversations planning or covering up an ongoing crime or fraud are not protected
• Waiver – The client waives privilege by voluntarily disclosing communications
• In camera review – A judge privately reviews privileged information to determine if an exception applies

However, attorney-client privilege remains a central tenet of the judicial process and is not easily discarded. So if the communications meet the standard requirements, privilege should withstand federal scrutiny in most situations.

Using Privilege to Avoid Disclosing Information Under a Federal Subpoena

Given how vital confidentiality is for legal matters, attorney-client privilege enables clients to refuse disclosing related communications, advice, or documents when faced with a federal subpoena.

What is a Federal Subpoena?

A federal subpoena is a writ requiring a person to produce information, records, or testimony. They are used by federal courts and government agencies like the FBI, SEC, and IRS during investigations.If you receive a federal subpoena, you are legally obligated to provide the requested materials or appear at a deposition. But attorney-client privilege means you can object to disclosing confidential information exchanged with an attorney.

How to Claim Attorney-Client Privilege with a Federal Subpoena

To leverage attorney-client privilege when dealing with a federal subpoena:

• Notify your attorney – Have your lawyer review the subpoena scope and determine what aspects implicate privilege.
• Formally assert privilege – Your attorney can file a motion to quash or assert privilege to block disclosure.
• Log privileged docs – Create a privilege log detailing communications and records withheld to allow court evaluation.
• Follow court procedures – If a judge wants to review documents in-camera, cooperate fully with the process.

With evidence showing that subpoenaed materials contain privileged attorney-client communications, federal courts are very unlikely to compel their release.

What Happens If Attorney-Client Privilege is Breached?

Violating attorney-client privilege can have serious ramifications, including:

• Exclusion of evidence – Privileged information improperly gathered cannot be used at trial.
• Lawsuits – Breaches open up the possibility of civil lawsuits and bar complaints.
• Prosecution – Intentionally violating privilege may result in criminal prosecution.

Fortunately, federal courts are highly aware of privilege issues and usually act to prevent breaches during proceedings. But if violations do occur, there are legal remedies available to address the situation.

Working with a Lawyer to Claim Attorney-Client Privilege

The concepts around attorney-client privilege can be nuanced and complex when dealing with a federal subpoena. Given what’s at stake, it’s essential to have an experienced attorney guiding you through the process.A lawyer can carefully assess if communications and materials meet the requirements for privilege protections. They know how to appropriately file objections and follow court protocols to shield sensitive information related to your case. And they will fight to remedy any improper disclosures that could put you at risk.Attorney John Smith has successfully protected attorney-client privilege for numerous clients facing federal scrutiny. Connect with him today to discuss your situation and how he can help safeguard your rights.

Resources

Articles:

• Attorney-Client Privilege in the Federal System
• Responding to a Federal Subpoena
• How to Write a Privilege Log

Videos:

• Attorney-Client Privilege Explained
• Motions to Quash a Federal Subpoena

Example Privilege Case Law:

• Upjohn Co. v. United States
• Mohawk Industries v. Carpenter
• Jaffee v. Redmond