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Lawyers as Witnesses? Special Counsel Investigation Compels Attorney to Testify Before Grand Jury

Lawyers as Witnesses? Special Counsel Investigation Compels Attorney to Testify Before Grand Jury
November 6, 2017
Amidst the news of an indictment and a guilty plea in Robert Mueller’s investigation, there is a story that has been largely overlooked. It is a story of extraordinary importance to lawyers, because it could affect the way attorneys represent their clients in government investigations. 
The Story: In conducting its investigation into potential Russian interference in the 2016 presidential election, the Special Counsel’s Office compelled one of Paul Manafort and Rick Gates’ attorneys to testify before the grand jury about her interactions with her clients.
Information conveyed by clients to their attorneys is typically protected by the attorney-client privilege, a fundamental principle of U.S. legal practice that requires lawyers to keep confidential information they learn from their clients. Information obtained during the course of an attorney’s representation is also often protected by the work-product privilege. As the district court noted in its opinion compelling the lawyer’s testimony, together, these “privileges play vital roles in the American legal system, by encouraging persons to consult freely and candidly with counsel, and counsel to advocate vigorously on their clients’ behalves, without fear that doing so may expose a client to embarrassment or further legal jeopardy.” 
However, these principles are not impenetrable, particularly in the face of a valid grand jury subpoena. For example, when a privileged relationship is used by a client to further a crime, fraud, or misconduct, the privilege can be shattered by what is known as the “crime-fraud exception.” Similarly, a client can waive the privilege either explicitly or through an implied waiver by, for example, voluntarily providing the information to a governmental agency as part of an ongoing investigation. Finally, the work-product privilege, which is typically cited to protect material obtained or prepared by counsel in the course of his or her legal duties, can also be penetrated when the information sought is related to facts and not to an attorney’s opinion.
Here, the district court found sufficient evidence to compel the attorney’s testimony on each of these three grounds. Specifically, the court found that the crime fraud exception applies; that Manafort, Gates, and DMP International, LLC (a company associated with both men) had waived privilege as to the information sought by the Special Counsel’s Office, because the information was provided to counsel in order for counsel to supply that information to a third party; and that the information sought from the lawyer was fact based information rather than opinion, thus overcoming the argument it was protected by the work-product doctrine.
The district court’s ruling signals a willingness by courts to allow invasion into areas largely considered sacrosanct by members of the bar—the attorney-client and work product privileges. The decision could also support similar aggressive tactics by the Department of Justice when prosecuting large-scale, significant white collar investigations in the future. Thus, going forward, attorneys representing clients in government investigations, both criminal and civil, should be mindful of these developments and take steps to protect their clients’ confidentiality.
For additional information on these developments, contact Ice Miller’s White Collar Defense & Investigations team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 

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