United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on two motions filed by the United States of America ("the Government") seeking to invoke the crime-fraud exception to the attorney-client and work product privileges and requesting that the Court determine whether defense counsel should be disqualified from further representation as a result of his unwitting involvement in post-arrest obstruction of justice allegedly committed by criminal defendant Daniel Harris ("Defendant"). ECF Nos. 22, 33. As discussed below, the Court GRANTS the Government's motion, filed at ECF No. 33, seeking to recharacterize the Government's prior motion (ECF No. 22) as a motion seeking a determination of whether the crime-fraud exception applies, and if so, seeking a further ruling on whether defense counsel should be disqualified. The Court GRANTS, in part, the Government's recharacterized motion, ECF No. 22, as the Court finds that the crime-fraud exception is applicable, and certain work product documents and attorney-client communications are therefore no longer privileged. The Court WITHHOLDS ruling as to the Government's request that defense counsel be disqualified. ECF No. 22.
As set forth below, and consistent with defense counsel's request at the in camera hearing, the Court will not rule on the propriety of defense counsel's disqualification until further argument is considered. The Government will first be afforded the opportunity to review the materials falling within the crime-fraud exception, and will then be required to either supplement its disqualification motion, or to withdraw such motion in light of what, at this stage, appears to be defense counsel's limited knowledge of, and/or involvement in, the obstruction of justice alleged by the Government.
I. Factual and Procedural Background
On May 21, 2014, a federal grand jury returned an indictment charging Defendant with seven counts of Production of Child Pornography, in violation of 18 U.S.C. § 2251, five counts of Enticement of a Minor, in violation of 18 U.S.C. § 2422(b), two counts of Receipt of Child Pornography, in violation of 18 U.S.C § 2252 (a) (2), one count of Transportation of Child Pornography, in violation of 18 U.S.C. § 2252(a)(1), two counts of Possession of Child Pornography, in violation 18 U.S.C. § 2252(a)(4)(B), and one count of Obstruction of Justice, in violation of 18 U.S.C. 1512(c)(2). Such federal indictment was returned after Defendant was first investigated by state authorities on similar child pornography related charges, and the federal Obstruction of Justice charge (Count Eighteen) alleges that Defendant committed obstruction of justice from jail during the course of the state investigation.
On May 22, 2014, the Government filed the instant motion to disqualify defense counsel on the basis that counsel, who represented Defendant when this matter was still being investigated by state authorities, was unwittingly involved in the obstruction of justice charged in Count Eighteen of the original indictment and will therefore be a necessary witness for the Government at trial. ECF No. 22. On June 12, 2014, defense counsel filed a brief in opposition to the motion to disqualify, ECF No. 30, and the Government subsequently filed a reply brief, ECF No. 31. A hearing was scheduled on the pending motion, and prior to the hearing date, the Government filed a "Motion to Recharacterize" ECF No. 22 as a motion first seeking a determination of whether the crime-fraud exception applies and then seeking a ruling on whether defense counsel should be disqualified from further representation. ECF No. 33.
On July 17, 2014, this Court conducted a hearing on the pending motions, which included the presentation of evidence through live witnesses. On August 15, 2014, this Court issued a Memorandum Order outlining the legal tests applicable to both the crime-fraud exception and the Government's request for disqualification of defense counsel. ECF No. 51. The Court concluded therein that, although the Government had arguably already presented sufficient evidence to invoke the crime-fraud exception, prior to formally making such finding, the Court would conduct an in camera hearing with defense counsel "in order to probe the extent of the communications and/or documents, if any, to which the attorney-client or fact work product privileges have been waived due to the apparent applicability of the crime-fraud exception." Id. at 10. The Government was instructed to submit questions to the Court that would be posed to defense counsel during the in camera hearing.
On September 12, 2014, after receiving the Government's proposed questions, the Court conducted an in camera hearing with only defense counsel and the defendant present. Because the Government was excluded from such hearing, the Court did not hear any argument from the defense, but instead limited the hearing to inquiring into the existence and extent of attorney-client communications, and fact work product, associated with the Government's allegations that, during defense counsel's representation of Defendant on the child pornography related offenses, Defendant engaged in two ongoing schemes to obstruct justice through falsely placing blame on a fictitious third-party. The Court's recollection of such hearing is that defense counsel was forthright with the Court and answered all questions posed by the Court without any evasiveness or objection.
II. Discussion - Crime Fraud Exception
"[I]t is settled under modern authority that the [attorney-client] privilege does not extend to communications between attorney and client where the client's purpose is the furtherance of a future intended crime or fraud." 1 McCormick on Evidence § 95 (7th ed.); see In re Grand Jury Proceedings #5 Empanelled January 28, 2004, 401 F.3d 247, 251 (4th Cir. 2005) ("Both the attorney-client and work product privileges may be lost.. when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud."). Although various circuits have formulated different tests governing the application of the crime-fraud exception, the Fourth Circuit requires that "(t)he party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception." In re Grand Jury Proceedings #5 , 401 F.3d at 251. Providing further context for such requirement, the Fourth Circuit has explained as follows:
In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required. Rather, the proof must be such as to subject the opposing party to the risk of non-persuasion if the evidence as to the disputed fact is left unrebutted. Further, (w)hile such a showing may justify a finding in favor of the offering party, it does not necessarily compel such a finding.
Specifically, we have held that the party invoking the crime-fraud exception must make a prima facie showing that (1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud. Prong one of this test is satisfied by a prima facie showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed. Prong two may be satisfied with a showing of a close relationship between the attorney-client communications and the possible criminal or fraudulent activity.
Id. (internal quotation marks, citations, and footnote omitted) (alteration in original) (emphasis added).
In determining whether the crime-fraud exception to the attorney-client privilege applies in a given case, "it is the client's knowledge and intentions that are of paramount concern, " and the exception can apply even if the attorney is unaware of the client's ongoing crime or fraud. Id . The operative question, therefore, is whether "the communication furthered, or was intended by the client to further'" the client's fraudulent or illegal purpose. Id . (quoting In re Grand Jury Proceedings , 102 F.3d 748, 751 (4th Cir. 1996)); see United States v. Lentz , 419 F.Supp.2d 820, 830 n.21 (E.D. Va. 2005) ("A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." (quoting Clark v. United States , 289 U.S. 1, 15 (1933))). The same standard applies to "fact work product, " which is discoverable even if counsel was unaware ...