Fisher v. United States

425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39, 1976 U.S. LEXIS 98, 37 A.F.T.R.2d (RIA) 1244
CourtSupreme Court of the United States
DecidedApril 21, 1976
Docket74-18
StatusPublished
Cited by2,021 cases

This text of 425 U.S. 391 (Fisher v. United States) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39, 1976 U.S. LEXIS 98, 37 A.F.T.R.2d (RIA) 1244 (1976).

Opinions

Mr. Justice White

delivered the opinion of the Court.

In these two cases we are called upon to decide whether a summons directing an attorney to produce documents delivered to him by his client in connection with the attorney-client relationship is enforceable over claims that the documents were constitutionally immune from summons in the hands of the client and retained that immunity in the hands of the attorney.

I

In each case, an Internal Revenue agent visited the taxpayer or taxpayers1 and interviewed them in con[394]*394nection with an investigation of possible civil or criminal liability under the federal income tax laws. Shortly after the interviews — one day later in No. 74-611 and a week or two later in No. 74-18 — the taxpayers obtained from their respective accountants certain documents relating to the preparation by the accountants of their tax returns. Shortly after obtaining the documents — later the same day in No. 74-611 and a few weeks later in No. 74-18 — the taxpayers transferred the documents to their lawyers — respondent Kasmir and petitioner Fisher, respectively — each of whom was retained to assist the taxpayer in connection with the investigation. Upon learning of the whereabouts of the documents, the Internal Revenue Service served summonses on the attorneys directing them to produce documents listed therein. In No. 74r-6U, the documents were described as "the following records of Tannebaum Bindler & Lewis [the accounting firm].

"1. Accountant's work papers pertaining to Dr. E. J. Mason's books and records of 1969, 1970 and 1971.[2]
“2. Retained copies of E. J. Mason’s income tax returns for 1969, 1970 and 1971.
“3. Retained copies of reports and other correspondence between Tannebaum Bindler & Lewis and Dr. E. J. Mason during 1969, 1970 and 1971.”

In No. 74-18, the documents demanded were analyses by the accountant of the taxpayers’ income and expenses which had been copied by the accountant from the taxpayers’ canceled checks and deposit receipts.3 In No. [395]*39574-611, a summons was also served on the accountant directing him to appear and testify concerning the documents to be produced by the lawyer. In each case, the lawyer declined to comply with the summons directing production of the documents, and enforcement actions were commenced by the Government under 26 U. S. C. §§ 7402 (b) and 7604 (a). In No. 74-611, the attorney raised in defense of the enforcement action the taxpayer’s accountant-client privilege, his attorney-client privilege, and his Fourth and Fifth Amendment rights. In No. 74-18, the attorney claimed that enforcement would involve compulsory self-incrimination of the taxpayers in violation of their Fifth Amendment privilege, would involve a seizure of the papers without necessary compliance with the Fourth Amendment, and would violate the taxpayers’ right to communicate in confidence with their attorney. In No. 74-18 the taxpayers intervened and made similar claims.

In each case the summons was ordered enforced by the District Court and its order was stayed pending appeal. In No. 74-18, 500 F. 2d 683 (CA3 1974), petitioners’ appeal raised, in terms, only their Fifth Amendment claim, but they argued in connection with that claim that enforcement of the summons would involve a violation of the taxpayers’ reasonable expectation of privacy and particularly so in light of the confidential relationship of attorney to client. The Court of Appeals for the Third Circuit after reargument en banc affirmed the enforcement order, holding that the taxpayers had never acquired a possessory interest in the documents and that the papers were not immune in the hands of the attorney. In No. 74-611, a divided panel of the Court of Appeals for the Fifth Circuit reversed the enforcement order, 499 F. 2d 444 (1974). The court reasoned that by virtue of the Fifth Amendment the documents would have been privileged [396]*396from production pursuant to summons directed to the taxpayer had he retained possession and, in light of the confidential nature of the attorney-client relationship, the taxpayer retained, after the transfer to his attorney, “a legitimate expectation of privacy with regard to the materials he placed in his attorney's custody, that he retained constructive possession of the evidence, and thus . . . retained Fifth Amendment protection.” 4 Id,., at 453. We granted certiorari to resolve the conflict created. 420 U. S. 906 (1975). Because in our view the documents were not privileged either in the hands of the lawyers or of their clients, we affirm the judgment of the Third Circuit in No. 74-18 and reverse the judgment of the Fifth Circuit in No. 74N511.

II

All of the parties in these cases and the Court of Appeals for the Fifth Circuit have concurred in the proposition that if the Fifth Amendment would have excused a taxpayer from turning over the accountant’s papers had he possessed them, the attorney to whom they are delivered for the purpose of obtaining legal advice should also be immune from subpoena. Although we agree with this proposition for the reasons set forth in Part III, infra, we are convinced that, under our decision in Couch v. United States, 409 U. S. 322 (1973), it is not the taxpayer’s Fifth Amendment privilege that would excuse the attorney from production.

The relevant part of that Amendment provides:

“No person . .,. shall be compelled in any criminal case to be a witness against himself.” (Emphasis added.)

[397]*397The taxpayer’s privilege under this Amendment is not violated by enforcement of the summonses involved in these cases because enforcement against a taxpayer’s lawyer would not “compel” the taxpayer to do anything — and certainly would not compel him to be a “witness” against himself. The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of “physical or moral compulsion” exerted on the person asserting the privilege, Perlman v. United States, 247 U. S. 7, 15 (1918); Johnson v. United States, 228 U. S. 457, 458 (1913); Couch v. United States, supra, at 328, 336. See also Holt v. United States, 218 U. S. 245, 252-253 (1910); United States v. Dionisio, 410 U. S. 1 (1973); Schmerber v. California, 384 U. S. 757, 765 (1966); Burdeau v. McDowell, 256 U. S. 465, 476 (1921); California Bankers Assn. v. Shultz, 416 U. S. 21, 55 (1974). In Couch v. United States, supra, we recently ruled that the Fifth Amendment rights of a taxpayer were not violated by the enforcement of a documentary summons directed to her accountant and requiring production of the taxpayer’s own records in the possession of the accountant.

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Bluebook (online)
425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39, 1976 U.S. LEXIS 98, 37 A.F.T.R.2d (RIA) 1244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-united-states-scotus-1976.