Jeremy Temkin Application of the Attorney-Client Privilege to Client Identities
Earlier this Term, the Supreme Court declined to review a Fifth Circuit decision upholding a John Doe summons requiring a law firm to disclose the identities of clients to the IRS. In this edition of his Tax Litigation Issues column, Jeremy H. Temkin addresses the Fifth Circuit's opinion, and writes: By declining to take up the issue, the Supreme Court has, for the moment, left it to the lower courts to establish the appropriate limits of John Doe summonses in this context, and 'Taylor Lohmeyer' provides instructive guideposts to practitioners litigating application of the privilege to such circumstances.
January 19, 2022 at 12:30 PM
9 minute read
It is a well-known maxim that the attorney-client privilege "extends only to communications and not to facts." Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). It is similarly well established that while the identity of a client typically is not protected from disclosure, the privilege can be invoked to bar revealing a client's identity when doing so will necessarily disclose the substance of a privileged communication. See United States v. Liebman, 742 F.2d 807, 809 (3d Cir. 1984). These principles frame the conundrum presented when the Government seeks to compel lawyers to disclose their clients' identities.
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