Posted On Wednesday, October 5, 2022
Takeaway: The Supreme Court is expected to clarify the question of whether attorney-client privilege applies in “dual-purpose” communications in situations where law firms provide clients with both legal and non-legal advice.
On Monday, October 3, 2022, the U.S. Supreme Court announced it would review a law firm’s challenge to production of client communications pursuant to grand jury subpoenas in the case of In re Grand Jury, case number 21-1397, in the U.S. Supreme Court.
The unnamed law firm requested the Supreme Court to clarify the law concerning attorney-client privilege and when this privilege protects communications that involve both legal and non-legal advice. The firm’s petition to the Supreme Court came after the Ninth Circuit ordered the firm to comply with subpoenas that sought communications and other materials related to preparing the tax returns of one of its clients.
In response to grand jury subpoenas, the firm produced over 20,000 pages of records but withheld some documentation considered “dual-purpose” records, asserting both attorney-client privilege and work-product doctrine. Some of the withheld communications between the firm and its client involved legal advice concerning taxes, while other communications were solely related to taxes. The firm claimed the communications that did not provide legal advice were for the purpose of preparing the client’s tax returns and therefore protected by attorney-client privilege.
The Ninth Circuit held that, although some communications were indeed attorney-client privileged, other communications whose primary purpose was tax-related and not legal in nature were not. Appellate courts among the Ninth, Seventh, and D.C. Circuits were split in their analyses and conclusions of this issue, which necessitated the intervention of the Supreme Court.
The Supreme Court’s ultimate decision on this issue will provide critical guidance to law firms when responding to grand jury subpoenas and clarify an as-yet undecided issue that has heretofore lacked uniformity: the impact of attorney-client privilege on communications that involve both legal and non-legal substance. Attorneys and law firms would be well-served to watch for the Supreme Court’s decision on this matter in the future.
Read the petition here.
The attorneys at Pietragallo Gordon Alfano Bosick & Raspanti, LLP are skilled at assisting corporations, firms, and individuals in responding to government inquiries and grand jury subpoenas. We assist clients in all 50 states, the District of Columbia, and abroad.
Posted On Thursday, September 22, 2022
Takeaway: The Biden administration underscored its promise to uncover and prosecute pandemic-related fraud this week, issuing indictments in its largest fraud case yet.
On September 20, 2022, the Department of Justice commenced its largest pandemic fraud prosecution to date, issuing indictments against 47 people for conspiring to steal $250 million from a government program meant to provide meals to children in need. This is the first major prosecution of this size under the Biden administration, which has promised to investigate pandemic fraud and bring those responsible to justice.
During the pandemic, the U.S. Department of Agriculture made exceptions to who could participate in its Federal Child Nutrition Program. This allowed restaurants and other providers to assist children in picking up meals outside of schools. According to the indictments, the nonprofit organization Feeding Our Future exploited this exception, setting up nutrition program sites in Minnesota and fraudulently claiming to serve thousands of meals a day.
Feeding Our Future is alleged to have created shell companies to register with the nutrition program and launder the money it received, which totaled over $200 million in federal funding and over $18 million in administrative fees. The organization is alleged to have created fake meal count sheets and fake attendance rosters at the fraudulent meal distribution sites. The money received by the co-conspirators was allegedly spent on luxury vehicles, travel, and real estate.
Prosecutors allege that Feeding Our Future operated a “pay-to-play scheme,” wherein people who operated fake food distribution sites were required to pay a kickback to the organization.
The scheme came to light when the Minnesota Department of Education began inquiring into the food distribution sites. Feeding Our Future allegedly gave false assurances that the sites were legitimate and were being monitored. However, when the Department continued to investigate, the organization’s founder brought a lawsuit against the Department alleging discrimination and violation of Minnesota’s Human Rights Act.
In a statement addressing the unprecedented sweeping indictments, Attorney General Merrick Garland vowed to continue investigating aggressively pandemic fraud schemes, stating that the indictments “underscore the Department of Justice’s sustained commitment to combating pandemic fraud and holding accountable those who perpetrate it.” Garland further stated, “the Justice Department will continue to bring to justice those who have exploited the pandemic for personal gain and stolen from American taxpayers.”
Read the Department of Justice’s press release here.
