2317

Subpoenas Issued to Attorneys to Obtain Fee Information

The Department requires that any grand jury or trial subpoenas to an attorney for information relating to the representation of a client must be authorized by the Assistant Attorney General, Criminal Division. See USAM 9-13.410. Information concerning the amount, source and method of payment of a fee paid to an attorney is information "concerning the representation of a client." Consequently, before a subpoena may be issued for such information, each of the requirements of that policy must be met. Most of these requirements should be easily met when issuing a subpoena to an attorney for fee information. The requirements that the information be non-privileged and relevant can be satisfied when the subpoena calls for fee information. Generally, courts have held that fee information is not privileged. See, e.g., Vingelli v. U.S., Drug Enforcement Agency, 992 F.2d 449, 452-54 (2d Cir. 1993); In re Shargel , 742 F.2d 61 (2d Cir. 1984); In re Ousterhoudt, 722 F.2d 591 (9th Cir. 1985); In re Special Grand Jury (Harvey), 676 F.2d 1005 (4th Cir.), vacated and withdrawn, 697 F.2d 112 (1982) (en banc); In re Grand Jury Subpoena (Slaughter), 694 F.2d 1258 (11th Cir. 1982); In re Grand Jury Proceedings, United States v. Jones, 517 F.2d 666 (5th Cir.), cert. denied, 449 U.S. 1083 (1981); United States v. Strahl, 590 F.2d 10 (1st Cir. 1978), cert. denied, 440 U.S. 918 (1979); United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), cert. denied, 425 U.S. 974 (1976). They also have recognized that fee information may be relevant to a criminal case or investigation. It may prove unexplained wealth which is relevant to show that a defendant obtained substantial income from his/her illegal activities. It may show that the fee for one or more alleged conspirators was paid by another co-conspirator which is relevant to prove "association in fact" or may lead to the discovery of other co-conspirators. Finally, it may show the disposition of forfeitable assets or lead to the discovery of forfeitable assets which have been hidden by a defendant. The requirement that reasonable attempts to obtain the information from alternative sources must be exhausted will have to be considered on the facts of each case, but it should pose no special problem. The remaining two requirements, however, do involve some special considerations. The requirement that there be "reasonable grounds to believe that the information sought is reasonably needed" is straight-forward when the fee information is sought to prove association in fact or unexplained income. But where the purpose of a subpoena is solely or principally to obtain evidence relevant to a forfeiture count, this requirement translates into reasonable grounds to believe that the fee information is evidence of or will lead to evidence either of the disposition of forfeitable assets or the existence of hidden assets. This means that there must be a basis to conclude that there are assets subject to forfeiture which have not been identified or located. This may exist, for example, if there is evidence that a defendant either had no legitimate income or derived all of his/her income from an illegitimate source at the time the fee was paid. It may also exist if there is evidence that a defendant derived a certain and substantial amount of income from his/her illegal activity, the disposition or whereabouts of which are unknown, and he/she had no substantial legitimate income at the time the fee was paid. The final requirement is that the need for the information must outweigh the potential adverse effects on the attorney-client relationship. If the fee information is sought solely or principally to obtain evidence concerning a forfeiture count, the availability of post-judgment discovery may mean that the need to subpoena the information, particularly at trial, does not outweigh the potential for disqualification. See this Manual at 2318. [updated August 1999] [cited in Criminal Resource Manual 2316; USAM 9-119.202]