United States v. Stein

MEMORANDUM OPINION

Defendant Carol Warley was a partner in KPMG LLP (“KPMG”), one of the *460 world’s largest accounting firms. She was questioned in the course of an IRS investigation by attorneys hired by KPMG. When that investigation gave way to a threatened indictment of KPMG, the firm, in an effort to curry favor with prosecutors and avoid prosecution, waived its attorney-client privilege and gave the government documents embodying the substance of the attorneys’ communications with Ms. War-ley. Warley contends that the attorneys were representing her as well as KPMG, that her attorney-client privilege was compromised by the actions of the government and KPMG, and that the evidence should be suppressed. She thus raises a troublesome question that arises whenever an employee 1 of a business organization consults with counsel retained by the entity about matters involving both the employee and the entity — when does the lawyer represent the employee as well as the entity?

This problem could be avoided if counsel in these situations routinely made clear to employees that they represent the employer alone and that the employee has no attorney-client privilege with respect to his or her communications with employer-retained counsel. Indeed, the Second Circuit advised that they do so years before the communications here in question. 2 But there is no evidence that the attorneys who spoke to Ms. Warley followed that course.

Facts

Ms. Warley was a partner of KPMG at all relevant times. In 2003, the IRS was investigating KPMG’s tax shelter activities, including some in which clients of Warley had participated. In the course of the investigation, Warley communicated with KPMG’s in-house counsel and with two law firms retained by KPMG, Kronish Lieb Weiner & Heilman LLP (“Kronish”) and King & Spalding LLP (“King & Spald-ing”). Warley does not recall having been told that the attorneys represented only KPMG or that any privilege belonged solely to the firm and could be waived by the firm without her consent. 3

In September 2004, in circumstances that have been discussed elsewhere, 4 KPMG waived its attorney-client privilege for communications relating to the IRS summons. 5 It gave the government documents relating to these communications, and the government apparently intends to use them in prosecuting Warley and others. The government argues that KPMG’s waiver was sufficient to allow it to obtain the documents and disputes Warley’s claim of privilege. 6

Warley identifies two sets of allegedly privileged communications relating to which the government has documents. 7 First, Warley was interviewed by attorneys from Kronish and King & Spalding on two occasions in August 2003. The government is in possession of a memoran *461 dum of these interviews prepared by a Kronish attorney as well as his handwritten notes. In addition, it has listed as a trial witness one of the Kronish attorneys present at these interviews.

The second allegedly privileged communication is an email exchange in January and February of 2003 between Warley and Steven Gremminger, an in-house attorney for KPMG, relating to the tax strategies under investigation. The government has a copy of this email string.

Both parties point to the substance of the communications to support their respective claims that privilege did or did not attach. Warley further relies upon KPMG’s 2003 partnership agreement, which provided that “[t]he General Counsel shall act on behalf of all Members, except where a dispute arises between an individual Member and the Firm.” 8 Finally, Warley alleges that counsel retained by KPMG jointly represented KPMG and her personally in two lawsuits prior to the events at issue here. 9

Discussion

A. Scope of Privilege

The question whether employee communications with counsel retained by the employer about matters relating to the employment are privileged vis-a-vis the employee — in other words, whether the employee has a personal attorney-client privilege that only the employee may waive — is troublesome because competing interests are at play.

On the one hand, an employee, like any other agent, owes the employer a duty to disclose to the employer any information pertinent to the employment. 10 This includes an obligation “to assist [the] employer’s counsel in the investigation and defense of matters pertaining to the employer’s business.” 11 Moreover, an employer has a substantial interest in retaining freedom of action to respond to investigations and other legal threats, an interest borne of the desire to remain in business and of duties to other constituents of the entity. Allowing individual *462 employees to assert personal attorney-client privilege over communications with the employer’s counsel could frustrate an employer’s ability to act in its own self interest, perhaps to the detriment of other employees, stockholders, or partners. 12

Nevertheless, there are weighty considerations on the other side of the scale. Once a government investigation begins, the interests of employees and of the entity may diverge. Indeed, that may be true in other circumstances in which employees communicate with employer counsel. Employees often are unaware of the potential personal consequences of cooperating with lawyers hired by their employers. Even more troublesome, they may cooperate with employer-retained counsel in the belief that their communications are protected by a personal privilege, sometimes as a result of a misapprehension of the law and occasionally perhaps as a result of deception, inadvertent or otherwise.

Courts have wrestled with this problem for some time now. In the absence of evidence that the employee was deceived by the employer as to the existence of a personal attorney-client relationship or as to a personal right to control the disclosure of privileged materials, 13 circuits have employed different standards to determine when personal privilege attaches. Some have looked at whether the individual reasonably believed that there was a personal attorney-client relationship, 14 although the Second Circuit has rejected this approach. 15 Others have focused on whether the individual expressly requested person *463 al advice or representation. 16 In In re Bevill, Bresler & Schulman Asset Management Corp., the Third Circuit enunciated a five-part test that has been adopted by at least two other circuits:

“First, [the individual claiming personal privilege] must show they approached [counsel] for the purpose of seeking legal advice. Second, they must demonstrate that when they approached [counsel] they made it clear that they were seeking legal advice in their individual rather than in their representative capacities. Third, they must demonstrate that the [counsel] saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise. Fourth, they must prove that their conversations with [counsel] were confidential. And, fifth, they must show that the substance of their conversations with [counsel] did not concern matters within the company or the general affairs of the company.” 17

Our circuit addressed the issue in United States v. International Brotherhood of Teamsters. 18 The Teamsters court first noted that courts typically have said that the attorney-client privilege for an employee’s communication with corporate counsel about corporate matters belongs to the corporation, not the individual employee. Nevertheless, it said, courts have found a personal privilege where the individual met “certain requirements.” 19 It quoted the Third Circuit’s Bevill test as one such example and noted that other courts have required the employee “make it clear to corporate counsel that he seeks legal advice on personal matters.” 20 Drawing upon all of these sources, the Circuit concluded that the individual before it lacked any personal privilege with respect to the communications at issue because he “neither sought nor received legal advice from [his employer’s counsel] on personal matters.” 21

Teamsters’ holding thus rests on the scope of “personal matters.” 22 But the *464 meaning of that phrase has not been developed. Do “personal matters” involve solely the individual, with no impact on the entity’s interests whatsoever? Or may they encompass matters that implicate both the individual and the entity? Although the facts of Teamsters suggest that the Circuit might have contemplated the former view, it did not expressly address the question.

Some guidance may be gained from circuits that have addressed this issue in the context of the fifth Bevill factor, which requires that the communication “not concern matters within the company or the general affairs of the company.” 23 The Tenth Circuit concluded that this factor

“only precludes an officer from asserting an individual attorney client privilege when the communication concerns the corporation’s rights and responsibilities. However, if the communication between a corporate officer and corporate counsel specifically focuses upon the individual officer’s personal rights and liabilities, then the fifth prong of [Bevill] can be satisfied even though the general subject matter of the conversation pertains to matters within the general affairs of the company. For example, a corporate officer’s discussion with his corporation’s counsel may still be protected by a personal, individual attorney-client privilege when the conversation specifically concerns the officer’s personal liability for jail time based on conduct interrelated with corporate affairs.” 24

The First Circuit adopted the Tenth Circuit’s interpretation and discussed its application where communications involving the individual’s liabilities “do not appear to be distinguishable” from those concerning the entity’s interests. 25 Acknowledging that both the employee and the entity could have an attorney-client relationship with the attorney with respect to such a communication, but noting also the fiduciary duty owed by a corporate officer to the corporation, the First Circuit concluded that “a corporation may unilaterally waive the attorney-client privilege with respect to any communications made by a corporate officer in his corporate capacity, notwithstanding the existence of an individual *465 attorney-client relationship between him and the corporation’s counsel.” 26 Thus, under the First Circuit formulation, individual privilege may be asserted successfully only when “communications regarding^ individual acts and liabilities are segregable from discussions about the corporation.” 27 To hold otherwise, the court reasoned, “would open the door to a claim of jointly held privilege in virtually every corporate communication with counsel.” 28

The Tenth and First Circuits thus have argued persuasively that communications implicating personal liability for acts within the scope of an individual’s employment 29 may be protected by individual attorney-client privilege, at least in some circumstances. It is an open question whether such communications involve “personal matters” within the meaning of Teamsters. But it is unnecessary to resolve that issue here. As discussed below, and particularly in light of the fact that the burden of proof lies with the party asserting privilege, 30 Warley fails to meet any standard.

B. Warley’s Claims

To begin with, there is no evidence that Warley was deceived by KPMG or its attorneys about the nature of her relationship with counsel. Although she claims to have “understood that ... [counsel] were representing [her] personally as a partner in the firm,” 31 her subjective belief alone does not support a conclusion that KPMG’s acts were responsible for that belief. Accordingly, the analysis of her claims rests on whether the communications involved “personal matters.”

Warley’s communications with counsel were about events and conduct within the scope of her work as a partner at KPMG, 32 thus clearly implicating KPMG’s interest in responding to the IRS investigation. The events and conduct, however, also implicated Warley’s personal interests and liabilities, as is amply evidenced by her status as a defendant in this case. Warley’s communications thus present the difficult circumstance where both the individual’s and the entity’s interests are involved.

As discussed above, the scope of “personal matters” under Teamsters is unclear. Under a narrow reading, the fact that the communications implicated KPMG’s interests alone would require that Warley’s claim of privilege be rejected. Even under the approach adopted by the First and Tenth Circuits, however, Warley could not prevail on a privilege claim absent a showing that communications implicated her interests alone and were segregable from those involving KPMG’s interests. Nothing in the allegedly privileged documents or the affidavits submitted with this motion indicates that the communications fo *466 cused on her personal interests alone. The Court therefore need not determine the parameters of “personal matters,” as Warley’s disclosures would not come within even a broad view of the term.

Warley nevertheless argues that her communications were privileged vis-a-vis herself because (1) the KPMG partnership agreement provides that “[t]he General Counsel shall act on behalf of all Members, except where a dispute arises between an individual Member and the Firm,” and (2) counsel retained by KPMG represented both Warley and the firm in litigation on two occasions prior to the communications here at issue. But these contentions are not persuasive.

To begin with, the occasions on which Warley and KPMG were jointly represented occurred in circumstances in which Warley was a witness, not a party, to the litigation. The Court is not persuaded that representation of an employee by employer-retained counsel where the employee’s role is that of a witness in a lawsuit against the employer could give rise to a reasonable expectation on the part of the employee that all communications she might have with employer-retained counsel, even a long time thereafter, were made in the context of an individual attorney-client relationship.

Nor has Warley offered any evidence that she in fact subjectively relied either upon the language in the partnership agreement or the previous litigation experience in concluding that Kronish, King & Spalding, or Gremminger was representing her individually. 33

Conclusion

In the end, Warley’s showings amount merely to a claim of her subjective belief which, without more, is insufficient to meet her burden of proving privilege. For the foregoing reasons, Warley’s motion for relief from the government’s alleged violation of her attorney-client privilege [docket item 682] is denied.

SO ORDERED.