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Over-Assertion of Attorney-Client Privilege

By Douglas M. Tween and James D. Bailey
January 26, 2006

Buried deep within the 69-page superseding indictment in the KPMG tax fraud case lies a development with the potential to chill the assertion of the attorney-client privilege by defense attorneys in criminal conspiracy cases. In the conspiracy count in United States v. Stein et al., S1 05 Cr. 888 (LAK) (S.D.N.Y., Oct. 19, 2005), the wrongful assertion of the attorney-client privilege has been charged as a central aspect of the crime itself, both as part of the means and methods of the conspiracy and as an overt act in furtherance. This aggressive charging decision may cause some members of the defense bar to think twice about asserting the privilege in close cases — even where it is being asserted legitimately — for fear that their claim of privilege may overreach, thus inadvertently implicating them in the underlying conspiracy.

There is no dispute that the attorney-client privilege is one of the pillars of the U.S. legal system. The benefit of the privilege is that it encourages “full and frank communications between attorneys and their clients,” Upjohn Co. v. United States, 449 U.S. 383 (1981), enabling lawyers to counsel their clients better and promoting compliance with the law through such counseling. In the criminal context, the privilege allows clients to speak to their attorneys with confidence that their words will not later be disclosed to prosecutors and used against them.

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