In Re Grand Jury Proceedings. Appeal of the Corporation

We must decide whether communications between an attorney and client can be “in furtherance of’ criminal activity, as they must be to fall within the crime-fraud exception to the attorney-client privilege, even if the attorney is unaware of the crimes and takes no affirmative step that actually furthers them.

Corporation appeals the district court’s order requiring its two former corporate counsel, Mary Roe and John Doe, to appear before a federal grand jury to answer questions about confidential communications they had with corporate personnel regarding the employment status and form of compensation of an employee of Corporation. The district court found that the communications were in furtherance of and related to the targets’ ongoing immigration and tax crimes and were therefore within the crime-fraud exception to the attorney-client privilege.

We hold that otherwise privileged communications can be “in furtherance of’ criminal activity, and therefore within the crime-fraud exception, even though the attorney is unaware of the crime and takes no affirmative step that actually furthers it. As we agree with the district court that the government made a prima facie showing that…