SWEIGERT, District Judge.
In this case the United States and Russell K. Ward, an Internal Revenue Service (IRS) Special Agent, petitioners below, appeal from portions of a district court order denying, upon Fifth Amendment grounds, enforcement of three IRS administrative summonses served on one Harvey J. Osborn, respondent below, an attorney who had formerly represented Ben Johnson, Sam Linder, and National Inventory Control Systems (NICS), intervenors below (hereinafter referred to as “clients”), in regard to certain documents.
Osborn and the clients cross-appeal from portions of the same order, granting enforcement of the three summonses in regard to certain documents and testimony, contending that- the testimony and documents demanded and ordered to be produced by the district court are protected by the clients’ attorney-client privilege.
THE FACTS
In 1974 the IRS commenced an investigation into income tax liabilities of the clients1 for the years 1969 through 1973. As part of the investigation Ward served three IRS administrative summonses on Osborn. The summonses demanded that Osborn give testimony regarding the tax liabilities of the clients and produce various papers, books, and records of the clients in his possession. Osborn appeared pursuant to the summonses, but refused to testify as to certain matters or to produce certain documents on the grounds that he had been instructed by his clients to assert their attorney-client privilege and also their Fifth Amendment privilege against self-incrimination 2 as to those subjects and documents.
Thereafter proceedings were commenced in district court, pursuant to 26 U.S.C. § 7402(b) and § 7604(a), to enforce compliance with the summonses. In those proceedings Osborn again asserted his clients’ attorney-client and Fifth Amendment privileges. The clients were permitted to intervene and personally asserted their attorney-client and Fifth Amendment privileges as to certain of the testimony and documents demanded by the summonses. At a hearing it was established that Osborn and his clients were asserting the clients’ attorney-client and Fifth Amendment privileges in regard to only eleven categories of items required by the summonses.3
[1337]*1337At the completion of the hearing, the district court concluded that it would undertake an in camera examination of all the materials-in Osborn’s files as to which either privilege was being asserted. Following this in camera examination, the district court filed an opinion, 409 F.Supp. 406 (D.Or.1975), in which it found (1) that Osborn had no files relating to item 4, but would have to testify regarding preparation of a will for Mrs. Johnson, the deceased wife of client Ben Johnson, since matters pertaining to the will were no longer protected by-the attorney-client privilege, (2) that none of the documents relating to item 5 were -protected by the attorney-client privilege, but some were protected by the Fifth Amendment privilege, (3) that some of the documents relating to item 6 were not protected by the attorney-client privilege, but some were protected by the Fifth Amendment privilege, and (4) that most of the documents relating to item 7 were not protected by the attorney-client privilege.
The district court ordered Osborn to testify regarding preparation of a will for Mrs. Johnson (item 4), and to produce certain documents.4
THE GOVERNMENT APPEAL
We take up first the government appeal from that portion of the district court’s order denying enforcement of the summonses in regard to certain documents in Osborn’s files found to be protected by his clients’ Fifth Amendment privilege.
The district court held that a client, by assertion of his Fifth Amendment privilege, can prevent disclosure by his attorney of documents in the attorney’s possession if the documents had been transferred to the attorney by the client for the purpose of obtaining legal advice, relying on United States v. Judson, 322 F.2d 460 (9th Cir. 1963) and United States v. Kasmir, 499 F.2d 444 (5th Cir. 1974) and rejecting the contrary holding of United States v. Fisher, 500 F.2d 683 (3d Cir. 1974) (en banc).5
After the district court filed its opinion, the Supreme Court decided Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), holding that a client can[1338]*1338not, by asserting his Fifth Amendment privilege, prevent disclosure by his attorney of the client’s documents in the attorney’s possession. Id. at 396-401, 96 S.Ct. 1569.6 The Court noted that the client should have relied not upon his Fifth Amendment privilege but upon the attorney-client privilege, as it applies to pre-existing documents.7 Id. at 402, 96 S.Ct. 1569. The Court held that such documents, transferred by the client to the attorney, are protected by the attorney-client privilege only if such documents (1) could not have been obtained from the client by court process when the documents were still in the client’s possession because of some privilege of the client, and (2) had been transferred to the attorney by the client for the purpose of obtaining legal advice. Id. at 403-05, 96 S.Ct. 1569 (citing United States v. Judson, supra, with approval).
Clearly, under Fisher, the clients herein cannot prevent disclosure of their documents in their attorney’s possession by assertion of their Fifth Amendment privilege. Whether, under Fisher, the documents are protected by the attorney-client privilege depends upon whether the documents would have been privileged while still in the clients’ possession and were transferred by the clients to their attorney for the purpose of obtaining legal advice.
The district court in the present case found that the documents in question had been delivered to the attorney for his use in performing legal services. 409 F.Supp. at 413. That finding has not been challenged. We, therefore, turn to the question whether the documents could not have been obtained from the clients, because of some privilege of the clients, while the documents were still in their possession.
The only privilege asserted by the clients that could bar production of the documents, if still in their possession, was their Fifth Amendment privilege. However, in Fisher, the Court, adopting a new approach to the Fifth Amendment as it applies to the production of the documents, held that to. be protected by the Fifth Amendment the documents must be such that their production would involve compulsion of incriminatory evidence of a testimonial nature. Fisher v. United States, 425 U.S. at 405-14, 96 S.Ct. 1569; Id. at 414-30, 96 S.Ct. 1569 (Brennan, J., concurring in the judgment); Id. at 430-34, 96 S.Ct. 1569 (Marshall, J., concurring in the judgment).
Free access — add to your briefcase to read the full text and ask questions with AI
SWEIGERT, District Judge.
In this case the United States and Russell K. Ward, an Internal Revenue Service (IRS) Special Agent, petitioners below, appeal from portions of a district court order denying, upon Fifth Amendment grounds, enforcement of three IRS administrative summonses served on one Harvey J. Osborn, respondent below, an attorney who had formerly represented Ben Johnson, Sam Linder, and National Inventory Control Systems (NICS), intervenors below (hereinafter referred to as “clients”), in regard to certain documents.
Osborn and the clients cross-appeal from portions of the same order, granting enforcement of the three summonses in regard to certain documents and testimony, contending that- the testimony and documents demanded and ordered to be produced by the district court are protected by the clients’ attorney-client privilege.
THE FACTS
In 1974 the IRS commenced an investigation into income tax liabilities of the clients1 for the years 1969 through 1973. As part of the investigation Ward served three IRS administrative summonses on Osborn. The summonses demanded that Osborn give testimony regarding the tax liabilities of the clients and produce various papers, books, and records of the clients in his possession. Osborn appeared pursuant to the summonses, but refused to testify as to certain matters or to produce certain documents on the grounds that he had been instructed by his clients to assert their attorney-client privilege and also their Fifth Amendment privilege against self-incrimination 2 as to those subjects and documents.
Thereafter proceedings were commenced in district court, pursuant to 26 U.S.C. § 7402(b) and § 7604(a), to enforce compliance with the summonses. In those proceedings Osborn again asserted his clients’ attorney-client and Fifth Amendment privileges. The clients were permitted to intervene and personally asserted their attorney-client and Fifth Amendment privileges as to certain of the testimony and documents demanded by the summonses. At a hearing it was established that Osborn and his clients were asserting the clients’ attorney-client and Fifth Amendment privileges in regard to only eleven categories of items required by the summonses.3
[1337]*1337At the completion of the hearing, the district court concluded that it would undertake an in camera examination of all the materials-in Osborn’s files as to which either privilege was being asserted. Following this in camera examination, the district court filed an opinion, 409 F.Supp. 406 (D.Or.1975), in which it found (1) that Osborn had no files relating to item 4, but would have to testify regarding preparation of a will for Mrs. Johnson, the deceased wife of client Ben Johnson, since matters pertaining to the will were no longer protected by-the attorney-client privilege, (2) that none of the documents relating to item 5 were -protected by the attorney-client privilege, but some were protected by the Fifth Amendment privilege, (3) that some of the documents relating to item 6 were not protected by the attorney-client privilege, but some were protected by the Fifth Amendment privilege, and (4) that most of the documents relating to item 7 were not protected by the attorney-client privilege.
The district court ordered Osborn to testify regarding preparation of a will for Mrs. Johnson (item 4), and to produce certain documents.4
THE GOVERNMENT APPEAL
We take up first the government appeal from that portion of the district court’s order denying enforcement of the summonses in regard to certain documents in Osborn’s files found to be protected by his clients’ Fifth Amendment privilege.
The district court held that a client, by assertion of his Fifth Amendment privilege, can prevent disclosure by his attorney of documents in the attorney’s possession if the documents had been transferred to the attorney by the client for the purpose of obtaining legal advice, relying on United States v. Judson, 322 F.2d 460 (9th Cir. 1963) and United States v. Kasmir, 499 F.2d 444 (5th Cir. 1974) and rejecting the contrary holding of United States v. Fisher, 500 F.2d 683 (3d Cir. 1974) (en banc).5
After the district court filed its opinion, the Supreme Court decided Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), holding that a client can[1338]*1338not, by asserting his Fifth Amendment privilege, prevent disclosure by his attorney of the client’s documents in the attorney’s possession. Id. at 396-401, 96 S.Ct. 1569.6 The Court noted that the client should have relied not upon his Fifth Amendment privilege but upon the attorney-client privilege, as it applies to pre-existing documents.7 Id. at 402, 96 S.Ct. 1569. The Court held that such documents, transferred by the client to the attorney, are protected by the attorney-client privilege only if such documents (1) could not have been obtained from the client by court process when the documents were still in the client’s possession because of some privilege of the client, and (2) had been transferred to the attorney by the client for the purpose of obtaining legal advice. Id. at 403-05, 96 S.Ct. 1569 (citing United States v. Judson, supra, with approval).
Clearly, under Fisher, the clients herein cannot prevent disclosure of their documents in their attorney’s possession by assertion of their Fifth Amendment privilege. Whether, under Fisher, the documents are protected by the attorney-client privilege depends upon whether the documents would have been privileged while still in the clients’ possession and were transferred by the clients to their attorney for the purpose of obtaining legal advice.
The district court in the present case found that the documents in question had been delivered to the attorney for his use in performing legal services. 409 F.Supp. at 413. That finding has not been challenged. We, therefore, turn to the question whether the documents could not have been obtained from the clients, because of some privilege of the clients, while the documents were still in their possession.
The only privilege asserted by the clients that could bar production of the documents, if still in their possession, was their Fifth Amendment privilege. However, in Fisher, the Court, adopting a new approach to the Fifth Amendment as it applies to the production of the documents, held that to. be protected by the Fifth Amendment the documents must be such that their production would involve compulsion of incriminatory evidence of a testimonial nature. Fisher v. United States, 425 U.S. at 405-14, 96 S.Ct. 1569; Id. at 414-30, 96 S.Ct. 1569 (Brennan, J., concurring in the judgment); Id. at 430-34, 96 S.Ct. 1569 (Marshall, J., concurring in the judgment).
The documents herein have been transmitted to this court under seal.8 We have examined them in camera. The documents — corporate financial statements, an agreement for sale, telephone records, billing records, and a few business letters — are [1339]*1339business documents analogous to the accountant’s workpapers in Fisher. These documents, like those in Fisher, were not prepared by the clients, nor do they contain any testimonial declarations by the clients. So far as the record shows, the documents were voluntarily prepared. See Fisher v. United States, 425 U.S. at 409, 96 S.Ct. 1569. The production of these documents, business documents, involves no testimonial self-incrimination. Any possible tacit concessions made by the act of producing the documents, e. g., that such documents exist and are possessed or controlled by the client and that the client believes they are the documents described by the subpoena, do not rise, under circumstances shown in this record, to the level of “testimony” within the protection of the Fifth Amendment. Id. at 410-13, 96 S.Ct. 1569; see Matter of Fischel, 557 F.2d 209 (9th Cir. 1977); Matter of Witness Before the Grand Jury, 546 F.2d 825 (9th Cir. 1976); Matter of Fred R. Witte Center Glass No. 3, 544 F.2d 1026 (9th Cir. 1976).
We hold that the documents would not have been protected by the clients’ Fifth Amendment privilege when still in their possession,9 and, therefore, that these documents are not protected by the attorney-client privilege.
Accordingly, we reverse that portion of the district court’s order finding certain documents to be protected by the clients’ Fifth Amendment privilege and denying enforcement of the three summonses concerning those documents.
THE CROSS-APPEAL
A. Production of Documents
We now take up the appeal of the clients and Osborn from that portion of the district court’s order rejecting the assertion of the attorney-client privilege and requiring production of certain documents in Osborn’s files regarding items 5, 6,10 and 7.
Since the effect of the assertion of the attorney-client privilege is to withhold relevant information from the finder of fact, the privilege is to be applied only when necessary to achieve its purpose of encouraging clients to make full disclosure to their attorneys. Fisher v. United States, 425 U.S. at 403, 96 S.Ct. 1569; Baird v. Koerner, 279 F.2d 623, 631-32 (9th Cir. 1960).
The burden of establishing the existence of the attorney-client privilege, and of presenting the underlying facts demonstrating the existence of the privilege rests on the claimant of the privilege. United States v. Palmer, 536 F.2d 1278, 1281 (9th Cir. 1976); United States v. Gurtner, 474 F.2d 297, 298-99 (9th Cir. 1973).
This court has made its own in camera examination of the sealed documents reviewed by the district court and found by that court not to be protected by the attorney-client privilege. As to the documents relating to items 5, 6, and 7, which the district court ordered to be produced, we find that cross-appellants have failed to meet their burden of establishing the existence of the attorney-client relationship and of presenting the underlying facts demonstrating the existence of the privilege. The cross-appellants merely submitted the documents to the district court with only a short cover letter generally describing the types of documents submitted, without any affidavit or other testimony setting forth the circumstances under which the documents were made and were transferred to Osborn. There is, therefore, no foundation shown for the application of the attorney-client privilege to these documents.
B. Testimony Regarding Preparation of the Will
We finally take up the clients’ and Osborn’s appeal from that portion of the dis[1340]*1340trict court’s order requiring Osborn to testify about preparation of a will for Mrs. Johnson, the deceased wife of client Johnson. Appellants contend that such testimony is protected by the attorney-client privilege.
The district court ordered Osborn to testify concerning the will, holding that the attorney-client privilege was no longer applicable after Mrs. Johnson’s death. However, the general rule with respect to confidential communications between attorney and client for the purpose of preparing the client’s will is that such communications are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs, legatees, devisees, or other parties, all of whom claim under the deceased client. 97 C.J.S. Witnesses § 288 (1957); 81 Am.Jur.2d, Witnesses § 201 (1976); Annot., 64 A.L.R. 184 (1929), supplemented by 66 A.L.R.2d 1302 (1959); see Baldwin v. Commissioner of Internal Revenue, 125 F.2d 812, 815 (9th Cir. 1942); 8 Wigmore § 2314 & n.2; McCormick § 94.11
The present case involves no such contest over the validity or construction of Mrs. Johnson’s will. Therefore, the attorney-client privilege may apply, depending upon the circumstances under which the communications between Mrs. Johnson and her attorney were made. Since the district court incorrectly found the privilege could never be applicable, it did not examine into the circumstances under which the communications were made. In the absence of a factual record showing the circumstances under which the communications were made, such an examination and determination of the applicability of the privilege should be made, in the first instance, by the district court. See United States v. Kleifgen, 557 F.2d 1293 (9th Cir. 1977).
Therefore, as to the cross-appeal, we affirm that portion of the district court’s order concerning items 5, 6, and 7, requiring production of certain documents found not to be protected by the attorney-client privilege; we vacate that portion of the district court’s order requiring Osborn to testify regarding conversations with Mrs. Johnson pertaining to preparation of her will, and remand that portion of the case to the district court for an examination into the circumstances surrounding the making of such communications and for a determination of whether such communications are protected by the attorney-client privilege.
AFFIRMED in part; REVERSED in part; VACATED AND REMANDED in part.