No.

14-389
WILSON-EPES PRINTING CO., INC. (202) 789-0096 WASHINGTON, D. C. 20002
IN THE
Supreme Court of the United States

CORPORATION AND CLIENT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

BRIEF OF THE NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS
AS AMICUS CURIAE IN SUPPORT OF
PETITION FOR A WRIT OF CERTIORARI







MARA V. J. SENN
Counsel of Record
ARNOLD & PORTER LLP
555 12th Street, NW
Washington, DC 20004
(202) 942-5000
mara.senn@aporter.com
Counsel for NACDL
Amicus Curiae
[Additional Counsel Listed On Signature Page]
(i)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ iii
INTEREST OF AMICUS CURIAE ..................... 1
SUMMARY OF ARGUMENT ............................. 1
ARGUMENT ........................................................ 6
I. THE CIRCUIT SPLIT ON QUANTUM
OF PROOF CREATES DISPARATE
EVIDENTIARY STANDARDS FOR
DEFENDANTS FACING GRAND JURY
PROCEEDINGS ....................................... 6
A. The Probable Cause Standard Used
in the Second, Sixth, Eighth and DC
Circuits Is the Minimum Quantum of
Proof for Application of the Crime-
Fraud Exception to the Attorney-
Client Privilege. ................................... 6
B. The Various Lower Standards Used in
the Other Circuits for the Crime-
Fraud Exception Provide Little
Protection, Are too Amorphous, and
Lack Consistent Application. ............... 9
1. The reasonable cause and
reasonable basis to suspect
standards applied by the First,
Third, and Ninth Circuits
encompass too broad a range of
evidentiary thresholds to ensure
consistent application. ................... 9


ii

TABLE OF CONTENTSContinued
Page
2. The burden-shifting approach in
the Fourth, Fifth and Seventh
Circuits is too amorphous and
inappropriate for the grand jury
setting. ............................................ 11
3. The some foundation in fact
standard used in the Tenth and
Eleventh Circuits fails to provide
any guidance to District Courts
and subjects defendants to
inconsistent standards. .................. 14
II. THE PETITION PRESENTS A
QUESTION OF NATIONAL IMPOR-
TANCE ON THE SCOPE OF THE
CRIME-FRAUD EXCEPTION, THE
PRIMARY EXCEPTION TO THE
ATTORNEY-CLIENT PRIVILEGE. ......... 15
A. Issuing Subpoenas against Lawyers
Providing Clients Advice Undermines
the Attorney-Client Relationship ....... 16
B. The Use of the Crime-Fraud Excep-
tion To Challenge the Attorney-Client
Privilege Is a Growing Problem .......... 17
III. THE DECISION BELOW WAS WRONG
AND SETS A DANGEROUS
PRECEDENT ............................................ 18
CONCLUSION .................................................... 22
iii

TABLE OF AUTHORITIES
CASES Page(s)
Bourjaily v. United States,
483 U.S. 171 (1987) ................................... 7
Clark v. United States,
289 U.S. 1 (1993) ....................................... 3
In re Grand Jury,
705 F.3d 133 (3d Cir. 2012) ...................... 3, 10
In re Grand Jury Investigation,
842 F.2d 1223 (11th Cir. 1987) ................. 4, 14
In re Grand Jury Investigation,
445 F.3d 266 (3d Cir. 2006) ...................... 3-4
In re Grand Jury Matters,
751 F.2d 1223 (1st Cir. 1984) ................... 16
In re Grand Jury Proceedings,
674 F.2d 309 (4th Cir. 1982) ..................... 12
In re Grand Jury Proceedings,
87 F.3d 377 (9th Cir. 1996) ....................... 10
In re Grand Jury Proceedings #5 Empanelled
January 28, 2004,
401 F.3d 247 (4th Cir. 2005) ..................... 4, 11
In re Grand Jury Proceedings,
417 F.3d 18 (1st Cir. 2005) ..................... 4, 8, 10
In re Grand Jury Proceedings, G.S., F.S.,
609 F.3d 909 (8th Cir. 2010) ..................... 3
In re Grand Jury Proceedings in Matter
of Fine,
641 F.2d 199 (5th Cir. 1981) ..................... 12

iv

TABLE OF AUTHORITIESContinued
Page(s)
In re Grand Jury Subpoena,
419 F.3d 329 (5th Cir. 2005) ................. 4, 11, 12
In re Grand Jury Subpoena,
No. 10-127-02, 2013 WL 228115 (E.D.
Pa. Jan 18, 2013) ...................................... 4
In re Grand Jury Subpoena,
745 F.3d 681 (3d Cir. 2014) ...................... 10
In re Grand Jury Subpoenas,
144 F.3d 653 (10th Cir. 1998) ................... 4, 14
In re Grand Jury Subpoena Duces Tecum
Dated Sept. 15, 1983,
731 F.2d 1032 (2d Cir. 1984) ................... 7
In re Napster, Inc. Copyright Litigation,
479 F. 3d 1078 (9th Cir. 2007) .................. 4
In re Omnicom Grp., Inc. Sec. Litig.,
233 F.R.D. 400 (S.D.N.Y. 2006) ................ 5, 8
In re Sealed Case,
754 F.2d 395 (D.C. Cir. 1985) ................... 9, 19
In re Sealed Case,
107 F.3d 46 (D.C. Cir. 1997) ..................... 3
Mohawk Industries, Inc. v. Carpenter,
558 U.S. 100 (2009) ................................... 14
Trammel v. United States,
445 U.S. 40 (1980) ..................................... 2
United States v. Boender,
649 F.3d 650 (7th Cir. 2011) ................. 4, 11, 13

v

TABLE OF AUTHORITIESContinued
Page(s)
United States v. Chen,
99 F.3d 1495 (9th Cir. 1996) ..................... 4, 10
United States v. Clem,
No. 97-5507, 2000 WL 353508
(6th Cir. 2000) ........................................... 3
United States v. Edgar,
82 F.3d 499 (1st Cir. 1996) ................... 2, 16, 21
United States v. Graf,
610 F.3d 1148 (9th Cir. 2010) ................... 13
United States v. Jacobs,
117 F.3d 82 (2d Cir. 1997) ........................ 3
United States v. Klubock,
832 F.2d 649 (1st Cir.), affd en banc,
832 F.2d 664 (1st Cir. 1987) ..................... 17
United States v. McDonald,
No. 01-CR-1168JSWDW, 2002
WL 31956106 (E.D.N.Y. May 9, 2002) ..... 7, 8
United States v. Zolin,
491 U.S. 554 (1989) ............................. 2, 5, 9, 13
Upjohn Co. v. United States,
449 U.S. 383 (1981) ................................... 2, 21
Whitehouse v. U.S. District Court for Dist.
of Rhode Island,
53 F.3d 1349 (1st Cir. 1995) ..................... 18



vi

TABLE OF AUTHORITIESContinued
OTHER AUTHORITIES Page(s)
American Bar Association Standing
Committee on Ethics and Professional
Responsibility and Section of Criminal
Justice, Report to the House of Delegates,
1990 ........................................................... 15
Blacks Law Dictionary (4th ed. 1968) ......... 12
Fed. R. Evid. 104(a) ...................................... 7
Gardner, The Crime or Fraud Exception to
the Attorney-Client Privilege, 47 A.B.A.J.
708 (1961) .................................................. 5
Genego, Risky Business: The Hazards of
Being a Criminal Defense Lawyer, 2
Crim. Just. 40 (1986) ................................ 17
Paul R. Rice, Attorney-Client Privilege in
the United States, 8.6, at 44 (2d ed.
1999) ......................................................... 4
Rudolf & Mayer, Grand Jury Practice, 5
Crim. Just. 22 (1990) ................................ 17
Stuart Gerson and Jennifer E. Gladieux,
Advice of Counsel: Eroding Confidentiality
in Federal Health Care Law, 51 Ala. L.
163 (1999) .................................................. 18
Stern & Hoffman, Privileged Informers:
The Attorney Subpoena Problem and
Proposal for Reform, 136 U. Pa. L. Rev.
1783 (1988) ................................................ 17
INTEREST OF AMICUS CURIAE
1

The National Association of Criminal Defense
Lawyers (NACDL) is a non-profit corporation with
more than 11,500 affiliate members in 50 states,
including private criminal defense attorneys, public
defenders, and law professors. NACDL was founded
in 1958 to promote criminal law research, to advance
and disseminate knowledge in the area of criminal
practice, and to encourage integrity, independence,
and expertise among criminal defense counsel.
NACDL is particularly dedicated to advancing the
proper, efficient, and just administration of justice,
including issues involving the role and duties of
lawyers representing parties in administrative,
regulatory, and criminal investigations. In further-
ance of this and its other objectives, NACDL has
appeared hundreds of times as amicus curiae before
this Court, the federal courts of appeals, and the
highest courts of numerous states.
NACDL has a particular interest in this case
because the decision of the Court below could interfere
with the ability of NACDLs members to represent
their clients, subject NACDL members and their
clients to punishment for zealous advocacy, and
undermine the adversarial process essential to
fairness in the criminal justice system.
SUMMARY OF THE ARGUMENT
The decision below, which applies a reasonable
basis to suspect standard, deepens the existing circuit

1
Letters of consent have been filed with the Clerk. Pursuant
to Rule 37.6, amicus states that no counsel for a party authored
any part of the brief, and no person or entity other than amicus
and its counsel made a monetary contribution to the preparation
or submission of this brief.
2
split regarding the quantum of proof necessary to
establish the applicability of the crime-fraud exception
to the attorney-client privilege. The crime-fraud
exception prevents clients from asserting the attorney-
client privilege when the clients intent at the time
they seek an attorneys advice is to initiate, continue
or further fraudulent or criminal activity.
The attorney-client privilege is the oldest of the
privileges for confidential communications known to
the common law. Upjohn Co. v. United States, 449
U.S. 383, 389 (1981). The privilege rests on the
need for the advocate and counselor to know all
that relates to the clients reasons for seeking
representation if the professional mission is to be
carried out. Trammel v. United States, 445 U.S. 40,
51 (1980). While exceptions to this privilege exist
the most common of which is the crime-fraud
exceptionpiercing this seal of secrecy may critically
harm the privileges purpose of encouraging full and
frank communication between attorneys and their
clients, which promotes broader public interests in
the observance of law and administration of justice.
United States v. Zolin, 491 U.S. 554, 562 (1989).
Attorneys have an obligation under this privilege not
to reveal client confidences and to assert this privilege
on behalf of a client. United States v. Edgar, 82 F.3d
499, 508 (1st Cir. 1996) (citations omitted).
In Zolin, this Court defined the threshold
evidentiary showing required to hold in camera
review of allegedly privileged communications. 491
U.S. at 563-64. This Court, however, explicitly stated
that it need not decide the quantum of proof necessary
ultimately to establish the applicability of the crime-
fraud exception. Id. at 564 (emphasis added). As a
result of the gap left by Zolin, federal circuits have
3
been forced to rely on minimal guidance: a prima facie
showing is required to vitiate the attorney-client
privilege. Clark v. United States, 289 U.S. 1, 14-15
(1933) (referring alternately to a showing of a prima
facie case sufficient to satisfy the judge or prima
facie evidence that [the charge] has some foundation
in fact). However, the prima facie standard is among
the most rubbery of all legal phrases and usually
means little more than a showing of whatever is
required to permit some inferential leap sufficient to
reach a particular outcome. In re Grand Jury, 705
F.3d 133, 152 (3d Cir. 2012) (emphasis added).
Unsurprisingly, federal courts have struggled to
apply consistently the rubbery prima facie standard.
What has emerged from the question left open in Zolin
are widely differing formulations for the quantum of
proof required for the applicability of the crime-fraud
exception to the attorney-client privilege. The Second,
Sixth, Eighth, and D.C. Circuits require probable
cause. See United States v. Jacobs, 117 F.3d 82, 87 (2d
Cir. 1997), abrogated on other grounds by Loughrin v.
United States, 134 S. Ct. 2384 (2014); United States v.
Clem, No. 97-5507, 2000 WL 353508, at *3 (6th Cir.
2000); In re Grand Jury Proceedings, G.S., F.S., 609
F.3d 909, 913 (8th Cir. 2010); In re Sealed Case, 107
F.3d 46, 50 (D.C. Cir. 1997).
2
The First, Third, and
Ninth Circuits require reasonable cause or reasonable
basis to suspect, which appears to be a lower standard
than probable cause. See In re Grand Jury

2
The D.C. Circuit requires evidence that if believed by the
trier of fact, would establish the elements of an ongoing or
imminent crime or fraud, but the D.C. Circuit has stated
that there is little practical difference between this standard
and that of the Second Circuits requirement of probable cause.
In re Sealed Case, 107 F.3d at 50.
4
Investigation, 445 F.3d 266, 275 (3d Cir. 2006); In re
Grand Jury Proceedings, 417 F.3d 18, 23 (1st Cir.
2005); United States v. Chen, 99 F.3d 1495, 1503 (9th
Cir. 1996).
3
The Fourth, Fifth, and Seventh Circuits
employ a method akin to a burden-shifting test. See
In re Grand Jury Proceedings #5 Empanelled January
28, 2004, 401 F.3d 247, 251 (4th Cir. 2005); In re
Grand Jury Subpoena, 419 F.3d 329, 336 (5th Cir.
2005); United States v. Boender, 649 F.3d 650, 655-56
(7th Cir. 2011). The Tenth and Eleventh Circuits have
not articulated a standard, but merely require there
be some foundation in fact, arguably an even lower
standard than reasonable basis to suspect. See In re
Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir.
1998); In re Grand Jury Investigation, 842 F.2d 1223,
1226, 1228 (11th Cir. 1987).
For years, courts and commentators have acknowl-
edged the existence of the disparate evidentiary stand-
ards and the confusion it has produced among the
circuits. See, e.g., In re Grand Jury Subpoenas, 144
F.3d at 660 (listing the differing standards among the
circuits); Paul R. Rice, Attorney-Client Privilege in the
United States, 8.6, at 44 (2d ed. 1999) (The prima
facie standard has always been poorly defined, incon-
sistently interpreted and generally misunderstood).

3
The Ninth Circuit, although claiming that reasonable cause
is analogous to probable cause, has admitted that these
standards, and the differences between them, are not entirely
free from confusion. In re Napster, Inc. Copyright Litigation,
479 F.3d 1078, 1094 (9th Cir. 2007), abrogated on other grounds
by Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).
Also, at least one district court has observed that the reasonable
basis standard is relatively low. See, e.g., In re Grand Jury
Subpoena, No. 1012702, 2013 WL 228115, at *4 (E.D. Pa. Jan.
18, 2013).
5
In Zolin, this Court acknowledged that its use of the
phrase prima facie case in Clark to describe the
showing needed to defeat the privilege has caused
some confusion and [t]he quantum of proof needed to
establish admissibility was then, and remains, subject
to question. 491 U.S. 563, n7. More than a quarter
of a century later, the question remains open as the
circuit courts have not addressed in meaningful detail
the actual burden that the movant carries in seeking
to pierce the privilege on the basis of the crime-fraud
exception. In re Omnicom Grp., Inc. Sec. Litig., 233
F.R.D. 400, 406 (S.D.N.Y. 2006).
And this uncertainty has had a growing practical
impact. Once used rarely, the crime-fraud exception
is steadily becoming the norm. This has led to an
erosion of the privilege due to the increased tendency
by courts to find that the crime-fraud exception
applies. In the past three decades, prosecutors have
increasingly subpoenaed attorneys to testify in front
of grand juries in criminal cases, with little to no
resistance from courts. In far too many instances, the
Governments weapon to overcome the attorney-client
privilege is the crime-fraud exception.
Legal rights must depend upon valid principles of
evidence. Gardner, The Crime or Fraud Exception to
the AttorneyClient Privilege, 47 A.B.A.J. 708, 710
(1961). Unfortunately, the circuit split regarding
the quantum of proof for the applicability of the
crime-fraud exception to attorney-client privilege
breeds wild inconsistency. Moreover, district courts
are left to decide crime-fraud exception cases with
little guidance from circuit courts in applying the gov-
erning standard. Given the Governments increased
attempts to pierce the attorney-client privilege, the
lack of uniformity in the circuits creates an
6
unacceptable risk to lawyers and defendants. This
case presents a clean vehicle to resolve the existing
circuit split.
ARGUMENT
I. THE CIRCUIT SPLIT ON QUANTUM OF
PROOF CREATES DISPARATE EVIDEN-
TIARY STANDARDS FOR DEFENDANTS
FACING GRAND JURY PROCEEDINGS
Many courts have long struggled with the eviden-
tiary standards required under the crime-fraud excep-
tion. In general, current rules allow prosecutors to
obtain an in camera review based on unsubstantiated
information that they may have collected through an
unlawful intrusion into the privilege, without giving
defendants an opportunity to challenge the reliability
or validity of that evidence. Adding further confusion
and uncertainty to a tool that is already plagued with
ambiguity and fraught with prosecutorial abuse will
only harm the criminal justice system. The issuance
of subpoenas in grand jury and other criminal
proceedings to attorneys should be limited to those
situations in which there is a genuine need to
intrude into the attorney-client relationship, and the
prosecutor has already pursued alternative avenues to
get the information, rather than going on a fishing
expedition with legal counsel.
A. The Probable Cause Standard Used
in the Second, Sixth, Eighth and DC
Circuits Is the Minimum Quantum of
Proof for Application of the Crime-
Fraud Exception to the Attorney-Client
Privilege.
The probable cause standard to defeat the attorney-
client privilege with the crime-fraud exception
7
articulated by the Second, Sixth, Eighth, and D.C.
Circuits should be the minimum standard. This
standard strikes an appropriate balance between
the competing interests of the Government and
defendants.
4
While not too demanding, the probable
cause standard prevents the Government from relying
on mere allegations or speculative evidence to pierce
the attorney-client privilege. It is also a well-defined
standard that is relatively easy to administer.
Anything less than the probable cause standard would
result in the crime-fraud exception swallowing the
general rule of the attorney-client privilege.
A finding of probable cause requires that the
perpetration of a crime or fraud is more probable
than not. United States v. McDonald, No. 01-CR-
1168JSWDW, 2002 WL 31956106, at *5 (E.D.N.Y.
May 9, 2002) (internal citations and quotations
omitted).
5
In other words, the party invoking the

4
This is not to suggest that a higher burden should not be
considered by the Court. There is support in this Courts
jurisprudence that the applicability of the crime-fraud exception
should be subject to the standard of preponderance of the
evidence, as required by Fed. R. Evid. 104(a). See Bourjaily v.
United States, 483 U.S. 171, 175-76 (1987) (requiring the use of a
preponderance of proof standard when resolving preliminary
factual issues as a predicate to admitting evidence); see also
Zolin, 491 U.S. at 568 (acknowledging that preliminary questions
concerning privileges must be addressed under Rule 104(a).)
5
The Second Circuit contends that there is little difference
between the probable cause standard and the reasonable basis
standard employed by some other circuits. In re Grand Jury
Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1039
(2d Cir. 1984). However, its articulation of the quantum of proof
required to apply the crime-fraud exception is distinct. Compare,
e.g., McDonald, 2002 WL 31956106, at *5 (With a strong
emphasis on intent, the crime-fraud exception applies only when
there is probable cause to believe that the communications with
8
crime-fraud exception must establish that it is more
likely than not that defendants engaged in a scheme
to defraud and that the communications were in
furtherance of the fraud. Id. Moreover, under this
standard, the Government need not prove the actual
existence of crime or fraud and [a] finding of probable
cause is not negated by an innocent explanation which
may be consistent with the facts alleged. Id. (internal
citations and quotations omitted).
The invocation of the probable cause standard, a
somewhat stringent test, as explained by a district
court in the Second Circuit, serves important policy
interests:
First, this approach would enhance the relia-
bility of the courts ruling. If it is important to
preserve the vitality of the privilege, it is
important to make sure that decisions that
strip parties of privilege protections that
otherwise would attach are reliably made.
Second, this concern is particularly acute
when the fraud allegation is based on
technically dense or esoteric evidence (matters
well beyond the common experience of
generalist judges).
In re Omnicom Grp., Inc. Sec. Litig., 233 F.R.D. at 408
(internal citations and quotations omitted).

counsel were intended in some way to facilitate or conceal the
criminal activity and it is the clients objective in carrying out the
fraud that is controlling.) with In re Grand Jury Proceedings,
417 F.3d at 23 (merely stating it is enough to overcome the
privilege that there is a reasonable basis to believe that the
lawyers services were used by the client to foster a crime or
fraud).
9
In sum, the Sixth Amendment and the underlying
policies of the common law privilege require
heightened protection of confidential communications
between lawyer and client when the lawyer is
defending the client against criminal charges. In re
Sealed Case, 754 F.2d 395, 403 (D.C. Cir. 1985, Mikva,
J., concurring). It must be remembered that the
crime-fraud exception is based on the recognition
that the attorney-client privilege will protect the
confidences of wrongdoers. Zolin, 491 U.S. at 562.
But this cost is accepted as necessary in promoting the
broader public interests in the observance of law and
the administration of justice by encouraging possible
wrongdoers to seek legal guidance. Id. Consequently,
the more probable than not quantum of proof should
be the minimum showing to allow piercing the
privilege.
B. The Various Lower Standards Used in
the Other Circuits for the Crime-Fraud
Exception Provide Little Protection,
Are too Amorphous, and Lack Consistent
Application
1. The reasonable cause and reasonable
basis to suspect standards applied
by the First, Third, and Ninth
Circuits encompass too broad a
range of evidentiary thresholds to
ensure consistent application.
The reasonable cause or reasonable basis to suspect
tests, adopted by the First, Third, and Ninth Circuits,
to defeat the attorney-client privilege with the crime-
fraud exception are too broad to be clear or effective.
These circuits maintain that the standard is
intended to be reasonably demanding, stressing that
10
speculative and distant evidence is insufficient. In re
Grand Jury, 705 F.3d at 153; In re Grand Jury
Proceedings, 417 F.3d at 23. However, these circuits
have failed to elucidate with precision what this
means, other than that the standard is lower than
beyond a reasonable doubt but higher than a
sneaking suspicion. In re Grand Jury Proceedings,
87 F.3d 377, 381 (9th Cir. 1996). The First Circuit, for
example, provides little guidance other than it is
enough to overcome the privilege that there is a
reasonable basis to believe that the lawyers services
were used by the client to foster a crime or fraud. In
re Grand Jury Proceedings, 417 F.3d at 23. Likewise,
the Ninth Circuit has only explained that mere
allegations or suspicion by the Government are
insufficient. But proof beyond a reasonable doubt is
not necessary to justify application of the crime-fraud
exception. United States v. Chen, 99 F.3d at 1503.
Until recently, the Third Circuit struggled to express
with precision the standard to apply. See In re Grand
Jury, 705 F.3d at 152 (Our own statement of the proof
necessary to apply the crime-fraud exception is not
particularly helpful . . . . This begs the quantum-of-
proof question because it does not quantify what
evidence is sufficient.).
This uncertainty regarding the standard is
especially problematic in a close case such as this
one. In re Grand Jury Subpoena, 745 F.3d 681, 691
(3d Cir. 2014). The lack of clarity and guidance on this
important issue, in addition to the circuit split, is
sufficient to warrant review.



11
2. The burden-shifting approach in the
Fourth, Fifth and Seventh Circuits is
too amorphous and inappropriate
for the grand jury setting.
The crime-fraud standard used by the Fourth and
Fifth Circuits requires a showing of evidence that,
if believed by a trier of fact, would establish the
elements of a crime. In re Grand Jury Proceedings #5
Empanelled January 28, 2004, 401 F.3d at 251
(requiring 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 and noting that 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) (internal quotation marks omitted); In re
Grand Jury Subpoena, 419 F.3d at 336 (To make the
necessary prima facie showing for the application of
the crime-fraud exception here, the Government must
produce evidence such as will suffice until
contradicted and overcome by other evidence [] A
case . . . has proceeded upon sufficient proof to that
stage where it will support a finding if evidence to the
contrary is disregarded) (internal quotation marks
and brackets omitted).
Similarly, under the Seventh Circuits approach, a
prima facie showing is established by such evidence
that allows the district court to require the defendant
to come forward with an explanation for the evidence
offered against the privilege. United States v.
Boender, 649 F.3d at 655. The problems with these
amorphous approaches are significant. In addition to
being in conflict with other circuits, none of these three
circuits have clearly defined with precision the
requisite quantum of proof for the applicability of the
12
crime-fraud exception to the attorney-client privilege.
For instance, the Fifth Circuits precedent relies on the
definition of prima facie from Blacks Law Dictionary
(4th ed. 1968): (s)uch as will suffice until contradicted
and overcome by other evidence . . . . (a) case which
has proceeded upon sufficient proof to that stage
where it will support a finding if evidence to contrary
is disregarded. See In re Grand Jury Subpoena, 419
F.3d at 336 (citing In re Grand Jury Proceedings in
Matter of Fine, 641 F.2d 199, 203 (5th Cir. 1981)).
Although the Fifth Circuit admitted that the term
[prima facie] could be defined in a variety of ways, it,
nonetheless, found this definition adequate. In re
Grand Jury Proceedings in Matter of Fine, 641 F.2d at
203. Moreover, the Fifth Circuit precedent on the
requisite quantum of proof, or lack thereof, for the
applicability of the crime-fraud exception predates the
Courts decision in Zolin in 1989. See In re Grand Jury
Subpoena, 419 F.3d at 336 (relying on Fifth Circuit
cases from 1981 and 1982). The Fourth Circuits
approach also misses the mark on providing any
clarity or guidance. See, e.g., In re Grand Jury
Proceedings, 674 F.2d 309, 310 (4th Cir. 1982) (stating
only that it is clear that the attorney was hired to
further the criminal activity. . . the Government has
made out a prima facie case that the crime/fraud
exception is applicable).
Further, the prima facie burden-shifting approach
is problematic in a grand-jury setting. This approach
is often used in civil litigation, particularly discrimi-
nation cases, where a party is given an opportunity to
refute the claims against it in open court. However, in
the context of a grand jury setting, where the
Government seeks to apply the crime-fraud exception
to the attorney-client privilege, a judge usually
examines evidence from the Government during an ex
13
parte hearing and in camera inspection. In essence,
this burden-shifting approach is used to dispel the
privilege altogether without affording the client an
opportunity to rebut the prima facie showing. The
problematic nature of the burden-shifting approach is
illuminated in the Seventh Circuits approach where
district courts have the option of holding an
adversarial proceeding to assess whether the crime-
fraud exception applies. See United States v. Boender,
649 F.3d at 655-57.
Finally, in adopting a burden-shifting approach,
these circuits have added an additional layer to
what is already a burden-shifting approach with
the attorney-client privilege. Initially, [a] party
asserting the attorney-client privilege has the burden
of establishing the existence of an attorney-
client relationship and the privileged nature of the
communication, United States v. Graf, 610 F.3d 1148,
1156 (9th Cir. 2010) (internal quotations and citations
omitted); then the burden shifts to the party opposing
the privilege to invoke the crime-fraud exception, and
to make a prima facie showing that the exception
applies. See Zolin, 491 U.S. at 560. Following
that, the party asserting the privilege would have
an opportunity for rebuttal. Such an adversarial
procedure requires district courts to engage in several
steps beyond what is necessary to hold in camera
proceedings in the first place. Given that in camera
proceedings are already burdensome, see Zolin,
491 U.S. at 571, this extra step makes the process
unnecessarily arduous for district courts. Once
stripped of the privilege, it is unlikely a defendant
would regain attorney-client privilege on appeal
because district court orders are unlikely to be
reversed on appeal, particularly when they rest on
factual determinations, such as the piercing of
14
attorney-client privilege, for which appellate
deference is the norm. Carpenter, 558 U.S. at 110. In
sum, the burden-shifting approach fails to provide any
additional protection for attorney-client privilege.
3. The some foundation in fact
standard used in the Tenth and
Eleventh Circuits fails to provide
any guidance to District Courts and
subjects defendants to inconsistent
standards.
Unlike the other circuits, the Tenth Circuit has
not articulated a requisite quantum of proof for a
prima facie showing, other than the allegation of
attorney participation in the crime or fraud has some
foundation in fact. In re Grand Jury Subpoenas, 144
F.3d at 660 (Although the exact quantum of proof
necessary to meet the prima facie standard has not
been decided by the Supreme Court . . . . [w]e need not
articulate the exact quantum of proof here because
under any of these announced standards, the
Government has made a prima facie showing).
Likewise, the Eleventh Circuit uses the some
foundation in fact standard, with the only guidance
being that mere allegations of criminality are
insufficient to warrant application of the exception.
In re Grand Jury Investigation, 842 F.2d at 1226,
1228. As a result, the question on the quantum of
proof for the applicability of the crime-fraud exception
to the attorney-client privilege remains an open
questions in these circuits.
Aside from being in conflict with the other circuits,
the some foundation in fact standard leaves district
courts to develop their own standards and exposes
defendants to inconsistent standards for application of
the crime-fraud exception in the Tenth and Eleventh
15
Circuits. District courts should not be subjected to a
guessing game when the attorney-client privilege is at
stake.
II. THE PETITION PRESENTS A QUESTION
OF NATIONAL IMPORTANCE ON THE
SCOPE OF THE CRIME-FRAUD EXCEP-
TION, THE PRIMARY EXCEPTION TO
THE ATTORNEY-CLIENT PRIVILEGE.
The existing disparate standards have led to
different outcomes on crime-fraud issues depending on
the happenstance of where the grand jury proceedings
are taking place. This should not be the case for a
federal privilege standard. The decision below
encourages the Government to continue to expand its
use of subpoenas against attorneys under the guise of
the crime-fraud exception. If left standing, the
decision below will have detrimental effects on
individuals seeking advice, as well as increased
confusion, fear, and harm to criminal defense lawyers
and the legal profession. In fact, the potential reach
of the decision below likely would result in an
unnecessary and overbroad use of subpoenas, which
would threaten both the integrity of the criminal
justice system and the ability of large classes of
defendants to obtain representation. American
Bar Association Standing Committee on Ethics and
Professional Responsibility and Section of Criminal
Justice, Report to the House of Delegates, 1990
(citation omitted).



16
A. Issuing Subpoenas against Lawyers
Providing Clients Advice Undermines
the Attorney-Client Relationship
The issuance of subpoenas to attorneys in the
context of the crime-fraud exception significantly
harms the attorney-client relationship in a number of
ways. First, subpoenas issued to attorneys create an
immediate conflict of interest between the lawyer and
his client because the lawyers legal and practical
interests as a witness diverge from those of his client.
The lawyers interest lies in avoiding potential
contempt sanctions by complying with the subpoenas,
or at least by expending the fewest possible resources
in resisting them, whereas, the clients interest in
lessening the likelihood of indictment on additional
charges would require the lawyer to do his utmost,
including incurring contempt citations, to resist the
subpoena. In Re Grand Jury Matters, 751 F.2d 13, 19
(1st Cir. 1984). This conflict drives a chilling wedge
between the attorney/witness and his client, and
creates a chilling effect for clients that may cause them
not to seek advice at all, or to withhold information
from an attorney that is necessary for the attorney to
provide advice for fear that the attorney may later be
compelled to disclose such information. Edgar, 82
F.3d at 507. Thus, expansion of the crime-
raud exception will result in less full and frank
communication between attorneys and their clients,
which may actually lead to more criminal activity or
legal or regulatory violations that could have been
prevented if proper advice from counsel had been
sought.
Second, subpoenas issued to attorneys make it
extremely difficult for a lawyer to dedicate their full
time and attention to their clients case and issues at
17
hand. Once an attorney is subpoenaed, the attorney
must divert valuable time and resources to address the
subpoena, which further creates a conflict of interest
that may not favor the clients best interest.
Third, subpoenas issued to attorneys may convert a
clients attorney into an adverse witness against their
client, with the possibility that the lawyer will be
required to resign as attorney for his client or be
disqualified, which has due process implications under
the Fifth and Sixth Amendments, because prosecutors
can effectively deny criminal defendants their counsel
of choice. United States v. Klubock, 832 F.2d 649, 654
(1st Cir.), affd en banc, 832 F.2d 664 (1st Cir. 1987).
B. The Use of the Crime-Fraud Exception
To Challenge the Attorney-Client
Privilege Is a Growing Problem
Beginning in the mid-1980s, the Government began
increasing the issuance of subpoenas to attorneys un-
der the crime-fraud exception. For example, a
national survey of over 1,500 practicing criminal
defense lawyers found that attorneys were subpoe-
naed infrequently prior to 1980, but documented a
dramatic increase between 1983 and 1985.
See Genego, Risky Business: The Hazards of Being a
Criminal Defense Lawyer, 2 Crim. Just. 40 (1986). In
addition, between 1985 and 1986, the Department of
Justice approved 400 requests to issue grand jury
subpoenas to attorneys. Stern & Hoffman, Privileged
Informers: The Attorney Subpoena Problem and
Proposal for Reform, 136 U. Pa. L. Rev. 1783, 1787-89
(1988) (citing statistics released by the Department of
Justice that indicate an explosion of subpoenas to
lawyers); see also Rudolf & Mayer, Grand Jury
Practice, 5 Crim. Just. 22, 24 (1990) (analyzing Justice
18
Department attorney subpoena statistics for the
period from 1985 to 1989).
The 1990s saw a further increase in the assertion of
the crime-fraud exception. In federal grand jury cases,
from 1995 to 1998, the crime-fraud exception was
invoked in 11.80% of cases, but in 1998, the
percentage rose to 38%. Stuart M. Gerson and
Jennifer E. Gladieux, Advice of Counsel: Eroding
Confidentiality in Federal Health Care Law, 51 Ala. L.
163, 198 (1999). As one court observed, despite the
United States Department of Justice issuing
guidelines for federal prosecutors seeking to subpoena
an attorney, and the American Bar Association
creating an ethical prohibition against subpoenaing
an attorney, [t]he instances of federal prosecutors
subpoenaing attorneys to compel evidence regarding
their clients ha[s], nevertheless, continued to
increase. Whitehouse v. U.S. Dist. Court for Dist. of
Rhode Island, 53 F.3d 1349, 1352 (1st Cir. 1995).
III. THE DECISION BELOW WAS WRONG
AND SETS A DANGEROUS PRECEDENT
The decision below illustrates the dangers of the
application of the lower and amorphous reasonable
basis to suspect standard. It underscores both the
need forat a minimumthe higher probable cause
standard, and the arbitrariness that can result when
different standards are applied in different circuits.
The decision below affirmed the district courts
decision in this close case. Had there been a higher
standard of proof, the outcome may well have been
different. The standard of proof applies to both
elements of the crime-fraud exceptions: (1) that the
defendant intended to commit the crime before
consulting the attorney; and (2) that the legal advice
19
was used in furtherance of the crime. In re Sealed
Case, 754 F.2d at 399. The district court inferred that
the intent to commit a crime existed before seeking an
attorneys advice because of actions that the defendant
took after he had consulted with the attorney. This
included making a payment a month after discussing
the Foreign Corrupt Practices Act (FCPA) issue with
the attorney. Under the Third Circuits minimal
standard of a reasonable basis to suspect, a client
asking his or her attorney about a statute and then
later allegedly violating said statute apparently
demonstrates the requisite intent element of the crime
fraud exception. The Third Circuits standard gives
too much weight to the post hoc determination that
since a client consulted a lawyer on a particular law
and the client then allegedly violates the law later,
then that must retrospectively mean that the client
had the intent before consulting the attorney. This
defies logic and common sense. Furthermore, the
lawyer in the case gave minimal advice, merely
identifying the existence of the FCPA and explaining
its elements. In a case like the one before the Court,
the ordinary scenario of simply asking a lawyer about
the law does not mean that the advice was used in
furtherance of a illegal act simply because a crime
was allegedly committed at a later date. If the
Government need only prove the ambiguous yet low
threshold of reasonable basis to suspect a defendant
used an attorneys service to commit a crime to pierce
attorney-client privilege, then the protection afforded
under the privilege ceases to exist and is rendered
meaningless. The attorney-client privilege warrants
better treatment than this.
This application may create tremendous
uncertainty for companies and individuals that do
business or conduct other regulated activities
20
throughout the country. For example, clients doing
business in the Third Circuit may be reluctant to seek
counsels advice within the applicable geographic
territory for fear that such communications may
be revealed through attorney subpoenas. Thus, a
business or individuals activities may comply with
applicable laws and regulations in the rest of the
country because the business or individual sought
advice of counsel, whereas the same activities may
violate laws in the Third Circuit because they chose
not to seek advice of counsel for fear of their attorney-
client privilege being pierced. The result could
be inconsistent or conflicting company policies
and procedures, inconsistent training of employees,
and inconsistent expectations of customers. As
importantly, it will incentivize prosecutors to seek to
apply the crime-fraud exception in more cases that
have borderline facts.
Applying at least a probable cause standard will
shift the outcome towards a stronger protection of
the attorney-client privilege, while still not unduly
burdening the Government with a high standard of
proof. Expanding the use of the crime-fraud exception,
as has been continuing to happen over the years, will
have a detrimental effect on the criminal justice
system and will discourage attorneys from providing
representation in controversial criminal cases. This is
particularly true if prosecutors in the Third Circuit
will have the ability to subpoena attorneys for
potentially privileged information based solely on
the fact that the attorneys client eventually
committed a crime. The exception is supposed to
apply to communications that take place before an
intended crime or fraud is committed. While federal
prosecutors frequently attempt to apply it to
communications after the crime has occurred,
21
appellate courts have reversed and limited the lower
courts orders to evidence of communications before
the crime occurred. See Edgar, 82 F.3d at 508. The
Third Circuits reliance on the clients ultimate
commission of the crime, therefore, is problematic and
in need of correction.
The magnitude of piercing the attorney-client
privilege is tremendous. It is the oldest of the
privileges for confidential communications known to
the common law, designed to encourage full and
frank communication between attorneys and their
clients and thereby promote broader public interests
in the observance of law and administration of justice.
Upjohn Co., 449 U.S. at 389. Given the disparate
standards currently existing among federal courts, the
Supreme Courts review is necessary to finally resolve
the confusion and bring uniformity to this crucial
question.

22
CONCLUSION
For the foregoing reasons, amicus curiae, NACDL,
respectfully urges this Court to accept certiorari
review of the aforesaid pending matter. This Courts
direction is desperately needed to preserve the
integrity of attorney-client privilege and limit the
ever-expanding crime-fraud exception.
Respectfully submitted,
JEFFREY T. GREEN
Co-Chair, Amicus
Committee
NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE
LAWYERS
1501 K. Street, N.W.
Washington, DC 20005
(202) 736-8291
MARA V. J. SENN
Counsel of Record
ABRAHAM GITTERMAN
DOUG QUZACK
ARNOLD & PORTER LLP
555 12th Street, NW
Washington, DC 20004
(202) 942-5000
mara.senn@aporter.com

CSABA M. RUSZNAK
ARNOLD & PORTER LLP
Three Embarcadero Center
10th Floor
San Francisco, CA 94111-4024
(415) 471-3100
Counsel for NACDL Amicus Curiae
October 28, 2014