SW Legal studies in Business

Once Evidence Shared with Prosecutors, Attorney-Client Privilege for the Evidence Lost

Appeals court held that when a doctor allowed his attorney to share his patient records with prosecutors, a later claim of attorney-client privilege to protect the documents was invalid. Once the evidence was voluntarily shared, it cannot be pulled back.

Topic Court Procedure
Key Words

Attorney-Client Privilege; Subpoena

C A S E   S U M M A R Y

A grand jury was investigating a doctor who may have billed Medicaid for services he did not provide. In an effort to help his client, the doctor’s attorney turned over patient records to the government, which made copies of the records and returned the originals. Later, the government served a subpoena to the doctor’s attorney to get the original records again so ink analysis could be done to see if the records may have been written at a later date than claimed as part of a scam. The doctor and his attorney moved to quash the subpoena, claiming the records were protected by attorney-client privilege. The district court denied that motion. The attorney and doctor appealed.


Affirmed. When the patient records were shared with the government initially, whatever attorney-client privilege might have attached to them was lost for good. There would be no Fifth Amendment claim against compelled self-incrimination since the attorney was the one who originally provided the records to the government and who had them in his possession. Attorney-client privilege applies to a document a client transfers to his attorney for the purpose of obtaining legal advice. That was not the case here as the doctor initially gave the attorneys permission to share the records with the government to try to establish his innocence. Once the records were shared, any claim of protection was lost.


In re Grand Jury (Attorney-Client Privilege), 527 F.3d 200 (D.C. Cir., 2008)

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