In the Matter of Elaine B. Fischel, Contemner-Appellant. United States of America v. Harry Margolis

Appellant Elaine B. Fischel was a witness in the criminal trial of Harry Margolis, Ronald H. Adolphson, Quentin L. Breen and Banco Popular Antilliano, N.V. During the course of her testimony the district court ordered her to produce certain documents known as “system accountings.” After consultation with counsel, appellant refused to furnish the majority 1 of these system accountings on the grounds that they were protected by the attorney-client and the work product privileges. She also asserted the Fifth Amendment on behalf of her clients with respect to these documents. The district court adjudged her guilty of contempt for this refusal under 28 U.S.C. § 1826 (a), and appellant appeals therefrom. We affirm.

I.

Factual Background.

Appellant is an attorney who was associated in differing capacities with defendant Harry Margolis, also an attorney, from 1964 to 1971. During this association, she performed tax planning services for her clients with the help of Margolis. These services included designing business transactions for her clients which it was hoped would reduce their taxes.

These business transactions were conducted with a group of business entities which Margolis used…

concurring and dissenting:

The majority is on solid ground in ruling that the so-called “summaries” do not constitute privileged “work-product,” and that appellant may not invoke vicariously a Fifth Amendment right of her clients. Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947), and Fisher v. United States, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976), are dispositive of those assignments.

I do entertain some doubt concerning this court’s refusal on a supposed jurisdictional ground to review the district court’s order refusing to strike the two inadvertently produced summaries. The nature of this proceeding, collateral as it is to the trial of Margolis, would seem to me to remove that order from the category of a step “towards final judgment in which [it] will merge” *214 (Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225 , 93 L.Ed. 1528 (1949)), and to bring it within the purview of 28 U.S.C. § 1291 .

However, that small difference aside, I wholly disagree with the majority’s conclusion that on this record the attorney-client privilege does not operate to shield the summaries from production and disclosure.

The…

557 F.2d 209 2 Fed. R. Evid. Serv. 363 In the Matter of Elaine B. FISCHEL, Contemner-Appellant. UNITED STATES of America, Plaintiff, v. Harry MARGOLIS et al., Defendants. No. 77-2278. United States Court of Appeals, Ninth Circuit. July 13, 1977. Sandra Terzian-Feliz, San Francisco, Cal., argued, for defendants. Martin A. Schainbaum, Gary K. Shelton, argued, Asst. U. S. Attys., San Francisco, Cal., for plaintiff. Appeal from the United States District Court for the Nothern District of California. Before KOELSCH, TRASK and SNEED, Circuit Judges. SNEED, Circuit Judge: 1 Appellant Elaine B. Fischel was a witness in the criminal trial of Harry Margolis, Ronald H. Adolphson, Quentin L. Breen and Banco Popular Antilliano, N.V. During the course of her testimony the district court ordered her to produce certain documents known as "system accountings." After consultation with counsel, appellant refused to furnish the majority 1 of these system accountings on the grounds that they were protected by the attorney-client and the work product privileges. She also asserted the Fifth Amendment on behalf of her clients with respect to these documents. The district court adjudged her guilty of…