United States v. Charles E. Rowe, Individually Rowe and Associates, a Professional Corporation

After learning of possible irregularities in attorney W. Lee McElravy’s handling of client funds, the senior partner at his San Diego law firm, Charles E. Rowe, asked two young associates to investigate McElravy’s conduct. Rowe also wrote to the State Bar, asking it to “take appropriate action” against McElravy. A grand jury investigating McElravy later subpoenaed the associates; the government hoped to question them about their conversations with Rowe. Appellants argued that the conversations were protected by the attorney-client privilege.

The attorney-client privilege can exist only after a client consults an attorney, 24 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5473, at 105-08 (1986), “for the purpose of facilitating the rendition of professional legal services.” Id. at 110.

The district judge, although expressing considerable unease about her ruling, held that appellants had not shown these requirements were met. According to the judge, who had spoken to the associates in camera, “Basically, they were trusted young associates [who] were asked to do some leg work and come up with information.... [TJhey were ... helping out.” The…