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United States v. Bay State Ambulance & Hosp. Rental Serv. - 874 F.2d 20 (1st Cir. 1989)


A district court's determination regarding the existence of a privilege is factual in nature. Thus, the district court's finding of no privilege can be overturned only if clearly erroneous. In order to assert the attorney-client privilege with respect to a document provided by an attorney, the person asserting the privilege is required to make four showings: (1) that he was or sought to be a client of the attorney; (2) that the attorney in connection with the document acted as a lawyer; (3) that the document relates to facts communicated for the purpose of securing a legal opinion, legal services or assistance in a legal proceeding; and (4) that the privilege has not been waived. The burden of proving the existence of the privilege is on the party asserting the privilege.


In 1981, after competitive bids were submitted, the City of Quincy awarded a contract for ambulance service to defendant Bay State Ambulance and Hospital Rental Service, Inc. ("Bay State"). Defendant Michael G. Kotzen was Bay State's president. Defendant John L. Felci was an official at the Quincy City Hospital and was responsible for overseeing the 1981 contract. By 1983, Felci was working as a consultant for Bay State. In 1984, the contract came up for renewal, and after bidding, it was awarded to Bay State. Felci was a member of the committee that voted on the contract bids. That same year, the FBI began investigating Bay State and various payments made by it to Felci. The FBI asked Bay State for documentation substantiating its claim that it paid Felci only for actual work done for Bay State. At the request of Robert Shuman, Bay State's in-house counsel, Felci prepared and gave Shuman a list of all the times he worked on Bay State projects ("List"). At that time, Felci was represented by another attorney. Ultimately, the Government indicted defendants of, inter alia, conspiring to commit Medicare fraud. At trial in federal district court, the Government used the List as evidence, over Felci's objection. A jury found defendants guilty, and defendants appealed.


Did the Government's use of the List as evidence at trial violate the attorney-client privilege?




The court of appeals affirmed the defendants' convictions. The court noted that Felci bore the burden of proving that he was Shuman's client. The court ruled that the evidence amply supported the district court's finding that no attorney-client relationship existed between Felci and Shuman, in that Felci: (1) had retained separate counsel; (2) had contacted the FBI through his separate counsel; (3) never paid Shuman for his services, and; (4) never asked Shuman to take any action on his behalf. Likewise, the court ruled, Felci failed to meet his burden to show that the List was prepared as part of a joint defense. The facts that Felci provided the List to Shuman without first consulting his own attorney and failed to inform his attorney of what he had done for several months raised the inference that the List was not intended to be used for Felci's own defense, much less a joint defense. Moreover, the joint-defense theory failed because there was no reasonable basis upon which to believe the List would be kept confidential.

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