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A lawyer whose advice is sought on how best to conceal illegal activity the client plans to undertake is fair game for a prosecutor’s subpoena, even if the lawyer is innocent of wrongdoing, the 3rd U.S. Circuit Court of Appeals has ruled. A three-court panel held in U.S. v. John Doe, No. 04-4136, decided on Nov. 23 that since the conversations involved the putative client’s alleged continuation of a crime, the crime-fraud exception to the attorney-client privilege applies. U.S. Circuit Judge Max Rosenn, while paying lip service to the attorney-client privilege’s time-honored pedigree, cautioned that “the privilege does not allow a client to shield evidence of an intent to use an attorney’s advice to further a criminal purpose” and that “the client’s intention controls and the privilege may be denied even if the lawyer is altogether innocent.” Rosenn was joined by Judges Dolores Sloviter and D. Michael Fisher. “The privilege is not lost if a client proposes a course of conduct which he is advised by counsel is illegal, but is extinguished when a client seeks legal advice to further a continuing or future crime,” wrote Rosenn. The judges found that U.S. District Judge John Bissell in Newark, N.J., in quashing the government’s subpoena, had used the wrong standard for the crime-fraud exception and had made no findings of fact about the intent of the client — who was the target of an investigation — or of a confidential government witness present at the consultation. “The Court … stated this was not a situation ‘where advice was sought for and presumably utilized for [an illegal] purpose.’ An examination of the entire oral opinion, however, leads us to conclude that the Court improperly relied on whether the consultation assisted or furthered the crime,” wrote Rosenn. The details of the four-year old investigation were submitted to Bissell under seal through an ex parte affidavit of Peter Zeidenberg, a trial attorney of the Criminal Division of the Public Integrity Section of the United States Department of Justice, so the identities of the target, the witness and the lawyer are undivulged. According to Rosenn, the target of the probe was an FBI agent involved in a investment deal with the unnamed witness, in violation of federal statutes that prohibit most federal employees from engaging in outside business interests. 18 U.S.C. ��208 and 209. The target, who purportedly was receiving between $1,000 and $2,000 a week as a result of the investment, asked the attorney’s advice in 1999 about how such an investment could be made and whether the investment should be made in his wife’s name to conceal his involvement. “The record is reasonably clear as to the criminal intent of Target,” Rosenn wrote. “It shows that Target was an experienced federal law enforcement officer, having served in that capacity for seven years. Witness’ business was at the center of an investigation in which Target was responsible for coordinating Witness’ activities as an informant.” The panel did not, however, find the attorney-client privilege destroyed by the presence of the third-party witness. “The common interest privilege allows for two clients to discuss their affairs with a lawyer, protected by the attorney-client privilege, so long as they have an ‘identical (or nearly identical) legal interest as opposed to a merely similar interest,’” Rosenn wrote. “The District Court found that Target and Witness shared a common interest, and therefore, the presence of Witness did not vitiate the attorney-client privilege. The Government has not challenged this finding of common interest on appeal and so we do not reach this issue.” The subpoenaed attorney’s lawyer, Jeffrey Smith, of Teaneck’s DeCotiis, Fitzpatrick, Cole & Wisler, declines to identify his client or the other parties involved. He does say that his client no longer lives in New Jersey and does not now represent the target, the latter of whom Smith says has been suspended pending the outcome of the investigation. But as the appeals court remarked, the privilege belongs to the former client, leaving the lawyer in limbo. “He’s a witness caught in the middle,” says Smith. “He hasn’t done anything wrong. His client refused to waive the privilege, so he believes he is not in a position to testify. It’s not 100 percent clear what we will do next. We will comply with the law.” The two Assistant U.S. Attorneys handling the case — Zeidenberg and Nicholas Marsh — did not return telephone messages left for them with the U.S. Department of Justice.

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