Fifth Circuit Rejects Rehearing En Banc in Controversial Client Identification Privilege Case (12/23/20)

I have actually formerly reported on the Fifth Circuit’s denial of the client-identity privilege (a subset of the attorney-client privilege) in Fifth Circuit Turns Down Attorney-Client Identification Opportunity for Law Practice Files (Federal Tax Obligation Crimes Blog Site 4/26/20), here. See Taylor Lohmeyer Law Practice P.L.L.C. v. USA, 957 F. 3d 505 (5th Cir. 2020), here.

On December 4, 2020, the Fifth Circuit refuted rehearing en banc. The vote was 9 to 8. Six of the judges dissenting to denial of rehearing en banc submitted a dissenting opinion. The denial and dissenting point of view are here.

The panel viewpoint was questionable. Amicus briefs on request rehearing en banc were submitted by the National Organization of Offender Defense Attorney, here, and by the American College of Tax Obligation Counsel, right here.

I am unsure what the dissenting opinion truly contributes to the panel choice aside from recommending a possible interpretation of Fifth Circuit regulation untouched by the initial panel viewpoint. Maybe it will certainly supply some basis for continuing the fight on remand as well as in various other instances. Possibly not.

A passage from the dissenting viewpoint (footnote left out):

The amici elevated crucial worries regarding how to translate the opinion in this instance. Nevertheless, the viewpoint guarantees us, in its citations to Jones and Reyes-Requena II, that it does not deviate from our settled precedent. Taylor Lohmeyer Law Company P.L.L.C. v. USA, 957 F. 3d 505, 510– 11 (5th Cir. 2020). I take the opinion at its word. Whenever revealing a client’s identification would expose the confidential purpose for which the customer consulted the lawyer, attorney-client opportunity uses. This protection might obtain even if the government does not understand the particular, substantive lawful suggestions that was provided to the client.

In the district court, the enforcement order is presently remained and the instance has been administratively shut to promote our evaluation of the enforcement order. Once our required problems, it may be that the case is reopened as well as the keep raised. If so, the May 15, 2019 enforcement order supplies that the Lohmeyer law company will certainly have the chance to produce an advantage log, insisting advantage on specific receptive papers. If the law practice does so, the district court might choose then to conduct an in camera review of those papers. I am certain that any kind of such evaluation will certainly be assisted by the following:” [i] f the disclosure of the customer’s identification will also expose the personal function for which he spoke with an attorney, we protect both the confidential communication and the customer’s identification as fortunate.” Lohmeyer, 957 F. 3d at 511 (quoting Reyes-Requena II, 926 F. 2d at 1431).

Published at Wed, 23 Dec 2020 18:02:00 +0000

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