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[Black Unicorn <unicorn@schloss.li>]

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On Tue, 7 May 1996, E. ALLEN SMITH wrote:

> From:	IN%"unicorn@schloss.li"  "Black Unicorn" 29-APR-1996 02:21:48.23
> 
> >On Sun, 28 Apr 1996, E. ALLEN SMITH wrote:
> 
> >> 	Given discussions as to attorneys holding passphrases, et al, perhaps
> >> a tutorial from the lawyers on the list (yourself and others, since
> >> disagreements among J.D.'s have been known to happen) on what attorney-client
> >> confidentiality does cover?
> 
> >Proposed FRE 503 probably has the best codification of the prevailing
> >common law on the subject.  I reproduce it in part below.  Typos are mine.
> 
> 	Thank you.

Sure.

> >The identity of the client and the existance of the attorney client
> >relationship are not confidential.  There are some exceptions.
> 
> 	What are the exceptions?


When a client wishes to make anonymous restitution.  Baird v. Koerner, 279
F.2d 623 (9th Cir. 1960) (Wherein attorney was retained to organize
anonymous payment of delinquent taxes and IRS demmanded identification of
clients by attorney).

The so called "missing link" exception, where where disclosure of the
identity of client, in conjunction with already available information,
would have the effective result of disclosing a privileged communication
or violating the privilege against self incrimination.  In re Grand Jury
Proceedings, 517 F.2d 666 (5th Cir. 1975); C.f., U.S. v Pape, 144 F.2d 778
(2nd Cir. 1944) (Holding that client's identity was not so protected,
but which may or may not still be good law); See Generally, Cleary et al,
McCormick on Evidence (3rd edition 1984).

> >Stolen property may be held by an attorney for a reasonable time for
> >inspection purposes, but must be returned to the rightful owner or the
> >attorney will be a receiver of stolen goods and participating in an
> >ongoing crime.  Privilege will thus not apply.  In re Ryder, 263 F.Supp.
> >360 (E.D.Va 1967).  (Some courts will permit the attorney to refuse to
> >disclose the source from which he obtained the property, however).
> >Consider this in the context of trade secrets.
> 
> 	A good point... although if it hasn't been proven whether something is
> stolen (e.g., an encrypted piece of data sent to the attorney), I would hope
> that privilege would still obtain. Of course, there would be the question
> (also important for First Amendment issues) of whether information that the
> recipient can't understand is communication.

Generally speaking, if the attorney believes or should reasonably know
that the item was stolen, privilege will not apply.

> >All states have laws against destroying or concealing evidence.  The
> >attorney who advises his client to destroy evidence is a co-consiprator.
> >Privilege does not apply.  Clark v. State, 261 S.W.2d 339 (Crim. App Tex.
> >1953).  (Interesting to wonder if advising a client to encrypt evidence is
> >'concealing' it).
> 
> 	A good question. Of course, again there's the point of what if the
> attorney has investigated the matter and decided that no crime is being
> committed, but that the material should be destroyed because it could be
> embarrasing, lead to other problems (e.g., civil lawsuits), etcetera. If a
> court later decides that the attorney was wrong, would privilege still obtain,
> and would the attorney be a co-conspirator? I would hope the answers would be
> yes and no.

First question, I can think of few attornies who would actually advise a
client to destroy something that might even one day possibly be evidence.
Well, let me rephrase that.  I can think of few attornies who would
actually advise a client to destroy something that might even one day
possibly be evidence if they thought they might be caught.

Second question, If the court thinks it was a crime and evidence was
destroyed it doesn't much matter what the attorney thought at the time.
I'll have to check, but this is probably a "reasonably forseeable"
question.

On Confidentiality:

See Generally, Fred Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev.
351 (1989); Fred Zacharias, Rethinking Confidentiality II, 75 Iowa L. Rev.
601 (1990); Geoffrey Hazard, A Historical Perspective on the Attorney
Client Privilege, 66 Calif. L. Rev. 1061 (1978); Developments in the Law:
Privileged Communications, 98 Harv. L. Rev. 1450 (1985).

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