In many white-collar criminal investigations in New York the defendant is subpoenaed by the federal or New York State government to produce business records that may potentially led legal officials to proof of intent and knowledge of the crime. And for many of these cases, the client may refuse to produce these records based on the Fifth Amendment privilege. Specifically, for cases that involve the investigation of the defendant and his/her attorney, records are generally protected from federal subpoenas based on the Attorney-Client privilege.
Is the Attorney-Client privilege absolute?
No. Not all attorneys’ records of client awards and fee arrangements are protected by the Attorney-Client privilege. Instead, for many kickback cases, investigations usually begin with federal subpoenas to the defendant’s business lawyer. Courts have consistently ruled that doing so does not violate the Fifth Amendment as long as the procedure falls under the required records exception.
For example, within New York State, the required record exception rule requires business and civil lawyers to keep and file retainer agreements and closing statements in contingent fee cases with the New York Office of Court Administration, which opens the agreement to the government, and allows the government the right to subpoena for these records.
There are right ways to respond to a federal subpoena and there are wrong ways to respond to a federal subpoena, which potentially make subject the defendant to self- incrimination. Finding the right criminal defense attorney who understands the criminal procedures of federal subpoenas should be the right way for an attorney to handle his/her case.
If you have been served with a federal subpoena by the U.S. Attorney, the IRS or any other federal agency in New York, then call our office at (212) 577-6677 to get professional legal assistance.
