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Tornay v. United States - 840 F.2d 1424 (9th Cir. 1988)

Rule:

The purpose of the attorney-client privilege is to encourage full disclosure to attorneys so they are able to render effective legal assistance. Because the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. Accordingly, it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.

Facts:

Appellant taxpayers sought to quash an Internal Revenue Service (IRS) summons to their attorney seeking information regarding fees paid to him. The court affirmed the denial of the petition. The court held that fee arrangements were generally not privileged information and that appellants did not show that the information would reveal a confidential communication.

Issue:

Is an IRS summons to an attorney for information regarding fees paid by his clients protected by the attorney-client privilege?

Answer:

No.

Conclusion:

The court rejected appellants' argument that knowing that their attorney might be compelled to testify inhibited them from disclosing information needed for effective legal representation. Such disclosure also was held to not violate the right to counsel. Appellants' U.S. Const. amend. VI argument presumed too much and was premature. No judicial proceeding had been initiated, nor did any ethical canon require an attorney to withdraw from representing a client for complying with an IRS summons. There was nothing on the record to suggest the IRS had improperly used the summons to effect appellants' right to counsel. The IRS was not required to show need to issue the summons, and there was no evidence of an abuse of power.

The court affirmed the denial of appellant taxpayers' motion to quash the summons to their attorney, holding that the information sought by the Internal Revenue Service was not protected by the attorney-client privilege. Enforcement of the summons did not violate the Sixth Amendment right to counsel because that right had not attached and did not result in deprivation of due process.

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