Fisher v. United States
425 U.S. 391 (1976)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The Fifth Amendment privilege against self-incrimination does not protect against the compelled production of pre-existing documents when the act of production is not sufficiently testimonial or incriminating. However, if documents would be protected by the Fifth Amendment in a client's possession, that protection extends to the documents when they are transferred to an attorney for the purpose of obtaining legal advice under the attorney-client privilege.
Facts:
- In two separate cases, taxpayers were investigated by the Internal Revenue Service (IRS) for potential civil or criminal tax liability.
- Following interviews with IRS agents, the taxpayers obtained various documents from their accountants.
- These documents included accountant workpapers, retained copies of tax returns, and analyses of the taxpayers' income and expenses prepared by the accountants.
- Shortly after receiving the documents, the taxpayers transferred them to their respective attorneys, Fisher and Kasmir, to obtain legal assistance regarding the IRS investigation.
- The IRS, upon learning the documents were with the attorneys, served summonses on the attorneys demanding production of the accountants' documents.
Procedural Posture:
- The Internal Revenue Service (IRS) served summonses on attorneys Kasmir and Fisher to produce documents related to their taxpayer clients.
- The attorneys refused to comply, and the government initiated enforcement actions in separate U.S. District Courts.
- In one case (No. 74-611), the U.S. District Court ordered the summons enforced, but the U.S. Court of Appeals for the Fifth Circuit, an intermediate appellate court, reversed that order.
- In the other case (No. 74-18), the U.S. District Court also ordered the summons enforced, and the U.S. Court of Appeals for the Third Circuit, an intermediate appellate court, affirmed that order.
- The U.S. Supreme Court granted certiorari to resolve the conflict between the two intermediate appellate courts.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Fifth Amendment's privilege against self-incrimination prevent the compelled production of an accountant's workpapers, which were transferred from a taxpayer to their attorney for legal advice, via a summons served on the attorney?
Opinions:
Majority - Justice White
No. The Fifth Amendment does not prevent the compelled production of the accountant's workpapers from the attorney. The Fifth Amendment privilege is a personal one that protects against compelling an individual to be a witness against themself. A summons served on a taxpayer's attorney does not compel the taxpayer to do anything, and thus does not violate the taxpayer's personal privilege. However, the attorney-client privilege applies, meaning that if the documents would have been privileged under the Fifth Amendment in the client's hands, they remain privileged in the attorney's hands. Here, the documents would not have been privileged in the client's hands. The Fifth Amendment protects against compelled 'testimonial' communication, not the contents of pre-existing documents created voluntarily. The act of producing the accountant's workpapers is the only compelled act, and it is not sufficiently testimonial or incriminating. The existence and location of such papers are a 'foregone conclusion,' and the taxpayer's act of production adds little to the government's information and does not authenticate the contents of papers he did not create. Therefore, because the Fifth Amendment would not have excused the taxpayer from producing the documents, the attorney-client privilege does not protect them, and the summons is enforceable.
Concurring - Justice Brennan
No. While I concur in the judgment that the summons is enforceable, I strongly disagree with the majority's reasoning. The judgment is correct only because the papers were business-related and previously disclosed to accountants, meaning the taxpayers lacked a legitimate expectation of privacy in them. The majority's new 'act of production' doctrine is a serious and dangerous departure from the historical understanding of the Fifth Amendment, established in cases like Boyd v. United States, which protects a broad 'zone of privacy' including an individual's private books and papers. By shifting the focus away from the incriminating contents of documents, the Court is severely crippling the privilege and laying the groundwork for future intrusions into personal privacy.
Concurring - Justice Marshall
No. I concur in the judgment. The Court's 'act of production' doctrine is a wholly new approach, departing from the historical focus on a document's contents. While I have reservations, this new theory, if properly applied, may provide substantially the same protection as the old rule. The theory's innovation is its recognition that production can testify to the very existence and possession of documents. For truly private papers like a diary, whose existence is not a foregone conclusion, compelling production would be highly testimonial and incriminating. Therefore, this new framework provides a more coherent basis for protecting our most private papers while distinguishing them from business or corporate records whose existence is often assumed.
Analysis:
This case established the 'act of production' doctrine, fundamentally shifting Fifth Amendment analysis for documents from their content to the communicative aspects of the act of producing them. It narrowed the broad protection for 'private papers' articulated in Boyd v. United States, making it more difficult to assert the privilege over pre-existing documents, especially those created by third parties. The decision clarifies that while the Fifth Amendment privilege itself is personal and does not transfer to an attorney, the attorney-client privilege can protect documents that were Fifth Amendment-privileged in the client's hands. This framework forces courts to conduct a two-step inquiry: first, whether the documents would be protected in the client's possession, and second, if so, whether they were transferred for the purpose of legal advice.
Unlock the full brief for Fisher v. United States