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UNITED STATES v. FISHER

June 29, 1988

UNITED STATES OF AMERICA
v.
HERBERT K. FISHER, HERMAN BLOOM


Marvin Katz, United States District Judge.


The opinion of the court was delivered by: KATZ

MARVIN KATZ, UNITED STATES DISTRICT JUDGE

 AND NOW, this 29th day of June, 1988, after a hearing and upon consideration of defendants Herman Bloom and Herbert K. Fisher's Motion and Renewed Motion to Suppress Certain Tape Recorded Conversations and the government's responses thereto, it is hereby ORDERED that defendants' motions are DENIED. *fn1" The government may introduce into evidence those portions of the tape recordings of the October 16, 1985, November 21, 1985, December 3, 1985, December 17, 1985, December 30, 1985 and January 27, 1986 conversations which they have not previously agreed to exclude. *fn2"

 Defendants seek to suppress seven conversations intercepted by the government on the grounds that the tape recorded conversations involve confidential attorney-client communications protected by the attorney-client privilege, and that the interception of these privileged communications reflects a failure on the part of the government to minimize electronic surveillance in accordance with 18 U.S.C. § 2510, et seq.

 DISCUSSION

 The attorney-client privilege "exists to foster disclosure and communication between the attorney and the client." In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979). The privilege does, however, stand in derogation of the search for truth and must therefore be "strictly confined within the narrowest possible limits consistent with the logic of its principle." In Re Grand Jury Investigation at 1235 (quoting 8 Wigmore on Evidence § 2291 at 545 (McNaughten rev. 1961)); see also In The Matter of Walsh, 623 F.2d 489, 493 (7th Cir. 1980), cert. denied, 449 U.S. 994, 66 L. Ed. 2d 291, 101 S. Ct. 531 (1980) (citing United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974)). Indeed, the party asserting the privilege bears the burden of proving the existence of each element of the privilege. In the Matter of Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986); United States v. Calabria, 614 F. Supp. 187, 192 (E.D. Pa. 1985). The attorney-client privilege applies when:

 
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

 United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). Essentially, the privilege exists if a client makes a communication in confidence to his attorney for the purpose of securing legal advice. Fisher v. United States, 425 U.S. 391, 403, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976).

 The Intercepted Conversations

 The seven conversations at issue took place on October 16, 1985 (2 conversations), November 21, 1985, December 3, 1985, December 17, 1985, December 30, 1985 and January 27, 1986. I will address each of the conversations in turn.

 October 16, 1985

 On October 16, 1985 defendant Fisher, Robert Crosley, and Mark Osborn were recorded in Roofers Union headquarters. At that time four subjects were discussed: (1) charges against Robert Medina and an insurance claim for the "stolen" Medina automobile; (2) the possibility of disqualification from union office of individuals convicted of certain crimes; (3) a criminal case pending against Robert Crosley's nephew; and (4) motor vehicle accident cases in general.

 No part of this October 16, 1985 conversation will be suppressed on the grounds of attorney-client privilege. Critical to any assertion of the privilege is, of course, the existence of an attorney-client relationship. Barr Marine Products Co., Inc. v. Borg-Warner Corp., 84 F.R.D. 631 (E.D.Pa. 1979). There was at the time of this conversation no attorney-client relationship in existence between defendant Fisher and either Robert Crosley or Mark Osborn. Though an attorney-client relationship may exist between an attorney for an unincorporated association and the association and each of its members, Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1318 (7th Cir. 1978), cert. denied, 439 U.S. 955, 58 L. Ed. 2d 346, 99 S. Ct. 353 (1978); Skloff v. Bickley, 85-5555, slip op. (E.D.Pa. 1986) (Broderick, J.) (available on LEXIS), defendant Fisher was not the attorney for the Roofers Union, an unincorporated association of which Mr. Crosley and Mr. Osborn were members, but was instead merely an attorney for whose services Mr. Crosley and Mr. Osborn were eligible to avail themselves as union members through a prepaid legal services fund. As Mr. Winning's affidavit asserts: "[Both] individuals were members of the Prepaid Legal Services Fund and eligible to receive advice and assistance from the law firm of Bloom, Ocks and Fisher." May 12, 1987 Affidavit of William J. Winning, Esq. at para. 7. An attorney-client relationship is not necessarily dependent upon the payment of fees or upon the execution of a formal contract. Westinghouse Electric, 580 F.2d at 1317. Indeed, the fact that a third-party pays the fee for the lawyer's services does not necessarily mean that there is no attorney-client relationship. See Fort Meyers Seafood Packers, Inc. v. Steptoe and Johnson, 127 U.S. App. D.C. 93, 381 F.2d 261, 262 (D.C. Cir. 1967), cert. denied, 390 U.S. 946, 19 L. Ed. 2d 1135, 88 S. Ct. 1033 (1968). In this case, however, it is neither the absence of a retainer nor the payment of legal fees by the union that negates the presence of an attorney-client relationship. Rather, it is the difference between two individuals who hypothetically may someday be able to employ defendant Fisher as their attorney and the existence of an attorney-client relationship on the date in question. While the privilege protects a prospective client's preliminary consultation with an attorney regarding the possibility of representation, it stretches the rationale of the attorney-client privilege too far to assert that merely because at some time in the future Mr. Crosley or Mr. Osborn may call upon defendant Fisher for legal services, an attorney-client relationship exists perpetually. See Bevill, Bresill & Schulman, 805 F.2d at 124 n.1. The conclusory affidavits of counsel are unpersuasive and the defendants have simply not met their burden of establishing such a relationship.

 Even if Mr. Crosley and Mr. Osborn, as eligible members of the prepaid legal fund, were clients of defendant Fisher on October 16, 1985, the nature of the communications at issue do not warrant the protection of the privilege. Defendant Fisher concedes, and I agree, that points (3) and (4) are not privileged communications. In addition, the government has, by agreement with the defendants, agreed to exclude point (1) (a discussion of Robert Medina's arrest). I must decide, therefore, only whether point (2) (a discussion of the ramifications of a conviction with respect to holding union office) is in fact privileged. See July 17, 1987 Affidavit of William J. Winning, Esq. at 4. At the heart of the attorney-client privilege is the requirement that the primary purpose of the communication at issue be to secure some legal advice or the provision of some legal services. Barr Marine, 84 F.R.D. at 635. In order for the attorney-client privilege to apply, the communication must be made by the client to an attorney who is acting as an attorney and not, for example, as a friend or business advisor. Barr Marine, 84 F.R.D. at 634; Walsh, 623 F.2d at 494. The discussion between Messrs. Crosley and Osborn and defendant Fisher involved no rendering of legal advice by Mr. Fisher. Instead, defendant Fisher was acting merely as a friend or acquaintance rather than as a lawyer. This communication, consisting of general information about union policies, is not the sort of legal communication ...


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