Home › Case briefs › Criminal Procedure

Fisher v. United States

Supreme Court of the United States · 1976 · Criminal Procedure

Criminal ProcedureFifth AmendmentAttorney-Client PrivilegeIRS SummonsesFifth Amendmentself-incriminationact of productionattorney-client privilege

Facts

In each case, IRS agents were investigating possible civil or criminal tax liability and interviewed the taxpayers. Shortly afterward, the taxpayers obtained documents from their accountants relating to tax return preparation and transferred those documents to attorneys retained to assist with the investigations. The IRS then served summonses on the attorneys directing them to produce the documents, which included accountant workpapers, retained copies of returns, correspondence, and analyses of income and expenses copied from the taxpayers' financial records. The attorneys refused, claiming constitutional and privilege-based protections, and the government brought enforcement actions.

Issue

Whether an IRS summons directed to an attorney to produce documents delivered by a client is unenforceable because the documents were allegedly protected by the client's Fifth Amendment privilege and retained that protection after transfer to counsel. Also, whether the attorney-client privilege bars production when the transferred documents would have been unobtainable from the client himself.

Rule

Enforcing a summons against a taxpayer's attorney to produce documents does not violate the taxpayer's Fifth Amendment privilege because the taxpayer is not personally compelled to do anything; the Fifth Amendment protects against compelled testimonial self-incrimination, not against the disclosure of private information generally. When documents are transferred to an attorney for the purpose of obtaining legal advice, the attorney-client privilege protects them in the attorney's hands only if the client himself could have resisted production; pre-existing documents obtainable from the client remain obtainable from the attorney. A compelled act of producing documents may have testimonial aspects, but where the existence, possession, and identification of the documents are a foregone conclusion and production adds little or nothing to the government's information, production is not protected testimonial self-incrimination.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

IRS investigators in Phoenix began examining Nora Patel's tax filings. After meeting with the agents, Nora obtained spreadsheets and reconciliation notes prepared by her outside accountant and delivered them to her attorney, Elise Moreno, for legal advice; the IRS then served Elise with a summons for those materials.

Nora argues enforcement of the summons against Elise violates Nora's Fifth Amendment privilege because the documents were originally in Nora's possession and may be incriminating. What is the best answer?

Explanation. The majority held that the Fifth Amendment is personal and protects against compelled testimonial self-incrimination of the person asserting it. A summons directed to the attorney does not compel the client to do anything, so the client's Fifth Amendment privilege is not violated by enforcement against counsel. The mere fact that the documents may be incriminating or were formerly in the client's possession does not change that result.