Law School Case Brief
Under Seal v. United States (In re Grand Jury Subpoena: Under Seal) - 415 F.3d 333 (4th Cir. 2005)
A person seeking to invoke the attorney-client privilege must prove that he is a client or that he affirmatively sought to become a client. The professional relationship hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice. An individual's subjective belief that he is represented is not alone sufficient to create an attorney-client relationship. No individual attorney-client relationship can be inferred without some finding that the potential client's subjective belief is minimally reasonable.
In March of 2001, AOL Time Warner ("AOL") began an internal investigation into its relationship with PurchasePro, Inc. AOL retained the law firm of Wilmer, Cutler & Pickering ("Wilmer Cutler") to assist in the investigation. Over the next several months, AOL's general counsel and counsel from Wilmer Cutler interviewed appellants Kent Wakeford, John Doe 1, and John Doe 2, who were AOL employees (collectively, "Employees"). Thereafter, the Securities and Exchange Commission ("SEC) began to investigate AOL's relationship with PurchasePro. Subsequent to that, Wakeford and AOL entered into a common interest agreement. Later, the Employees became targets of a grand jury investigation; ultimately, Wakeford was indicted. The grand jury issued a subpoena to the corporate counsel for the documents relevant to the internal investigation. The Employees filed a motion to quash the subpoena, arguing that they each had an individual attorney-client relationship with the investigating attorneys, that the interviews were individually privileged, and that they had not waived the privilege. Ultimately, the district court found no individual attorney-client privilege attached to the Employees' communications with the corporate attorneys, and it denied the motion to quash. The Employees appealed.
Did an individual attorney-client privilege attach to the Employees' communications with the corporate attorneys?
The court of appeals affirmed the district court's judgment. The court geld that no individual attorney-client privilege attached to the Employees' communications with the corporate attorneys. The court averred that a person seeking to invoke the attorney-client privilege was required to prove that he was a client or that he affirmatively sought to become a client. In the case at bar, there was no showing that the attorneys told the Employees that they represented them, nor was there evidence that the Employees asked the investigating attorneys to represent them. As such, the Employees could not have reasonably believed that the investigating attorneys represented them personally during the time frame covered by the subpoena. In addition, as to Wakeford, the court ruled that the district court was not clearly erroneous in its finding that no common interest agreement existed at the time of some of the interviews covered by the subpoena.
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