Ask Ms. Ps & Qs

By Professor Nancy Rapoport

Dear Readers:

The ConsiderChapter13.org staff has, once again, raised an important ethics issue: how far does the attorney-client privilege go? In Taylor Lohmeyer Law Firm v. United States,1 the Fifth Circuit had to wrestle with that issue after the law firm (Taylor Lohmeyer) claimed a blanket attorney-client privilege for all documents that were subject to the IRS’s “John Doe” subpoena. In October 2018, the IRS requested documents from “John Doe” taxpayers

who, at any time during the years ended December 31, 1995[,] through December 31, 2017, used the services of [the Firm] . . . to acquire, establish, maintain, operate, or control (1) any foreign financial account or other asset; (2) any foreign corporation, company, trust, foundation or other legal entity; or (3) any foreign or domestic financial account or other asset in the name of such foreign entity.2

Moreover, the IRS

[sought] records that may reveal the identity and international activities of certain clients of [the Firm], from January 1, 1995, through December 31, 2017. This information may be relevant to the underlying IRS investigation into the identity and correct federal income tax liability of U.S. persons who employed [the Firm] to conceal unreported taxable income in foreign countries. In particular, the IRS is seeking information on U.S. taxpayers for whom [the Firm] created and maintained foreign bank accounts and foreign entities that may not be properly disclosed on tax returns.3

The law firm, in seeking to quash the subpoena, argued that the document request triggered the exception to the general rule that client names are discoverable—that, in some rare instances, even providing the client’s name is protected. The firm argued that revealing its clients’ identities “would result in the disclosure of a confidential communication.”4

Here’s what the law firm did that so triggered the Court’s ire:

  • It failed to produce the privilege log.
  • It failed to go question-by-question through the documents that the IRS was requesting.

In addition to the usual warnings about failing to comply with a court order, this case reinforced the general principle that client names are not privileged under most circumstances. The test for the narrow exception to the rule—a rule that normally doesn’t protect client identities when complying with a subpoena—is whether “the identity of a client may be privileged in the rare circumstance when so much of an actual confidential communication has been disclosed already that merely identifying the client will effectively disclose that communication.”5 The Fifth Circuit concluded that the narrow exception didn’t apply in this case because “the Firm’s clients’ identities are not ‘connected inextricably with a privileged communication[’, ] and, therefore, the ‘narrow exception’ to the general rule that client identities are not protected by the attorney-client privilege is inapplicable.”6

What does this mean for you? First, if you really, really believe that your case fits within the narrow exception, think about producing the documents in camera, so that the court can determine if your attempt to protect client identities makes sense. Second, go document by document in your privilege log to indicate why a particular document needs this special protection. Here’s an example of what is protected with the exception to the general rule: if an anonymous third party is paying a client’s legal fees in part because that third party is seeking joint representation with the client, and when the third party is seeking advice confidentially so that the mere mention of the client’s name exposes other protected information, that’s a pretty strong link between identity and advice, and it’s protected.7 If the name of your client would give too much information away, tread cautiously, and be specific in your motion to quash. “I’m not telling ya’ nuttin’” is not your best option.

_________________________

[1] Taylor Lohmeyer Law Firm v. United States (Fifth Circuit 2020) (Case: 19-50506; Document: 00515394156).

[2] Opinion at 1-2.

[3] Id. at 3-4.

[4] Id at 4.

[5] Id. at 12-13.

[6] Id. at 13 (citing In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1431 (5th Cir. 1991)(citations omitted)(italics in original).

[7] Id. at 9.

_________________________

rapoportNancy B. Rapoport is the Garman Turner Gordon Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas, and an Affiliate Professor of Business Law and Ethics in the Lee Business School at UNLV. After receiving her B.A., summa cum laude, from Rice University in 1982 and her J.D. from Stanford Law School in 1985, she clerked for the Honorable Joseph T. Sneed III on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco from 1986-1991. She started her academic career at The* Ohio State University College of Law in 1991, and she moved from Assistant Professor to Associate Professor with tenure in 1995 to Associate Dean for Student Affairs (1996) and Professor (1998) (just as she left Ohio State to become Dean and Professor of Law at the University of Nebraska College of Law). She served as Dean of the University of Nebraska College of Law from 1998-2000. She then served as Dean and Professor of Law at the University of Houston Law Center from July 2000-May 2006 and as Professor of Law from June 2006-June 2007, when she left to join the faculty at Boyd. She served as Interim Dean of Boyd from 2012-2013, as Senior Advisor to the President of UNLV from 2014-2015, as Acting Executive Vice President & Provost from 2015-2016, as Acting Senior Vice President for Finance and Business (for July and August 2017), and as Special Counsel to the President from May 2016-June 2018.

Her specialties are bankruptcy ethics, ethics in governance, law firm behavior, and the depiction of lawyers in popular culture. Among her published works are ENRON AND OTHER CORPORATE FIASCOS: THE CORPORATE SCANDAL READER 2D (Nancy B. Rapoport, Jeffrey D. Van Niel & Bala G. Dharan, eds.), which addresses the question of why we never seem to learn from prior corporate scandals, LAW SCHOOL SURVIVAL MANUAL: FROM LSAT TO BAR EXAM, co-authored with Jeffrey D. Van Niel (Aspen Publishers 2010), and LAW FIRM JOB SURVIVAL MANUAL: FROM FIRST INTERVIEW TO PARTNERSHIP, also co-authored with Jeffrey D. Van Niel (Wolters Kluwer 2014). She is admitted to the bars of the states of California, Ohio, Nebraska, Texas, and Nevada and of the United States Supreme Court. In 2001, she was elected to membership in the American Law Institute, and in 2002, she received a Distinguished Alumna Award from Rice University. In 2017, she was inducted into Phi Kappa Phi (Chapter 100). She is the Secretary of the Board of Directors of the National Museum of Organized Crime and Law Enforcement (the Mob Museum). She is also a Fellow of the American Bar Foundation and a Fellow of the American College of Bankruptcy. In 2009, the Association of Media and Entertainment Counsel presented her with the Public Service Counsel Award at the 4th Annual Counsel of the Year Awards. In 2017, she received the Commercial Law League of America’s Lawrence P. King Award for Excellence in Bankruptcy, and in 2018, she was one of the recipients of the NAACP Legacy Builder Awards (Las Vegas Branch #1111). Her most recent fee examiner work has been as the fee examiner in In re Toys “R” Us, Inc., United States Bankruptcy Court for the Eastern District of Virginia, Case No. 17-34665 (KLP) (2018-present).

She has also appeared in the Academy Award®-nominated movie, Enron: The Smartest Guys in the Room (Magnolia Pictures 2005) (as herself). Although the movie garnered her a listing in www.imdb.com, she still hasn’t been able to join the Screen Actors Guild. In her spare time, she competes, pro-am, in American Rhythm and American Smooth ballroom dancing with her teacher, Sergei Shapoval. In 2014, she won the national U.S. Open Pro/Am Rising Star American Smooth Competition B Division, and in 2017, she came in 2nd in the “C” Open to the World Pro/Am American Style 9-Dance Championship. The most interesting thing about her is that she is married to a former Marine Scout-Sniper. The best way to reach her is to call her on her cell phone.

Nancy B. Rapoport
Garman Turner Gordon Professor of Law, William S. Boyd School of Law
Affiliate Professor of Business Law and Ethics in the Lee Business School
nancy.rapoport@unlv.edu
(c) 713-202-1881
SSRN author page: http://ssrn.com/author=260022
IMDB.com page: http://imdb.com/name/nm1904564/
Blog: https://nancyrapoports.blog/

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