The U.S. Court of Appeals for the Ninth Circuit sounded ready
Thursday to order a San Francisco law firm to hand over a client's tax
records, despite the firm's protest that doing so would violate attorney-client privilege.
us producing the documents to the government, we are in effect
incriminating our client," Sideman & Bancroft partner Jay Weill
pleaded to the court in U.S. v. Sideman & Bancroft.
Ninth Circuit Judge Susan Graber suggested U.S. District Judge William
Alsup did not err in ordering production under an exception to the
privilege recognized by the U.S. Supreme Court. "Where's the clear
error?" she asked.
Two years ago the IRS
subpoenaed a laundry list of tax records from San Ramon family law
attorney Mary Nolan. It included check ledgers, client billings, credit
card statements and day planners that Nolan had supplied to her
accountant to prepare her tax return. When the IRS executed a search of
Nolan's home and office, the accountant gave the documents — contained
in four banker boxes and three accordion folders — to her civil tax
attorney, who in turn provided them to Sideman, which is representing
Nolan in the IRS' criminal investigation.
Weill, who was the
longtime chief of the Tax Division at the U.S. attorney's office in San
Francisco, acknowledged Thursday that the documents themselves aren't
privileged, but maintained that the act of culling through the boxes and
folders to produce them would be, absent a grant of use immunity.
"She's going to have to represent through me that these are the pieces
of paper" sought by the IRS, he said, adding that they can't otherwise