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United States v. Rowe - 96 F.3d 1294 (9th Cir. 1996)


Fact-finding which pertains to legal advice counts as "professional legal services."


After learning of possible irregularities in a lawyer's handling of client funds, defendant Charles E. Rowe, the senior partner at defendant Rowe and Associates, P.C., ("Firm"), asked two young associates to investigate that lawyer's conduct. Rowe also wrote to the State Bar, asking it to "take appropriate action" against the lawyer. When a federal grand jury investigating the matter for the State Bar attempted to question the associates about their conversations with Rowe, Rowe and the Firm argued that the conversations were protected by the attorney-client privilege. The Government argued that the privilege did not apply because the Firm was not a client consulting an attorney, and the associates' investigative work did not qualify as "professional legal services." The district court issued an order compelling the associates to testify after concluding that the attorney-client privilege was inapplicable to in-house investigative conduct. Rowe and the Firm appealed.


Did the district court err by compelling the associates to testify?




The district court's decision was reversed and remanded. The appellate court ruled that the in-house communications related to an investigatory matter clearly in anticipation of litigation. The court found no difference between the associates' in-house communications and communications with outside counsel later hired in anticipation of litigation. The court also refused to characterize the associates' actions as "fact-finding" as distinct from the privileged acts of lawyering. Case law made it clear that fact-finding related to legal advice counted as "professional legal services." The activities at issue thus met the requirements of the attorney-client privilege.

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