Over-Assertion of Attorney-Client Privilege

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 <i>United States v. Stein et al.<i>, 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.

20 minute read January 26, 2006 at 10:26 AM

By

Douglas M. Tween And James D. Bailey