exception the attorney client privilege we think the district court judge got it wrong in terms of the procedure both the both the appellant's and the government in the lower court suggested that that they that both parties so the government is in the position of our going forward position which he did not argue put below to defend the district court judge and actually decided to handle it when i started to appear put today i'm in the on and legal position of the government's next party submission i don't have the government interviews an attorney i'm not there for the interview the government does a transcript the interview i don't have the transcript of the interview and i'm trying to argue that the crime for exception does not apply it seems that even in the grand jury setting the has to be moved balance when you start with the court's most recent case in seven zero five the third in re green jury that all you need is a reasonable basis to suspect and and that's all that's required to breach the privilege in the crime for and setting the circuit that the defense has to be the in this case their targets but the fence has to be given some opportunity to have some information in order to respond it's too easy to simply say stick to your client ask him what he what he knows about the transaction because this is the the problem we have here is that it's a grand jury you're not in the grand jury room and grand jury proceedings are supposedly secret i that there's got be a balance here in effect is is not the attorney telling the judge something that would be said in the grand jury room yes except we never have understood based on this court's precedents that we cited like questions and they had phrased the questions that were substantially the same oh we don't know their questions are we know what our questions were our questions were what happened there were six questions which basically asked what happened if you consult with the client on this understood it witness is preexisting knowledge to be greentree information under any of the precedents and therefore we did not understand the court's ruling in this regard that we were previewing granger a test more than especially in light of the questions which were pos now with the court put in different questions pinion said there was a combination of the government's and the and our question the balance questions they actually put the judge put in different question than maybe there's an impact to some green jury information but it could have been redacted but to s the appellant's in this case to react and to argue against klein for it we ended up giving the hypothetic was the court knows and that may not have been a correct hypothetical but based on the fact that we don't have you're talking historical information from five years ago you're talking about a proceeding where we're the appellants have no information so we didn't see his range or information as a lot we don't see it as a preview because preexisting information isn't within will succeed we never understood it as a preview we always viewed it as preexisting information and we didn't understand where the court came from in that you know in that regard saying you have to protect the injury secrecy second based on historical as serious a resurgent here there was a lesson need for green teresa could see the government admitted that there is a historical perceiving that was something going on offshore and you didn't have the same need for a green jury sequences so we couple that  have historical knowledge we don't think the secret of all you have less a lesser need for grand jury secrecy you have the seven circuit case that we cited which we grant is in a post indictment context where the circuit court in th case said it would be an unusual proceeding to lower the what are you suggesting should have been done you're are you initially did you oppose in camera review is that correct yes that's correct something which is critical which takes me to my other critical point which is the in furtherance problem the court did not really do well for you before you get in further it was your kaminski your argument in your briefing although you haven't yet mentioned it  today heavily emphasizes the verbal aspect of the testimony and distinguishes it from the documentary evidence why should we not extend the zola standard to verbal communications i i'm not sure i appreciate as much as you would like me to the distinction between the documentary communications and the verbal look the the courts have over the years is there is you know just start from a different angle have distinguished between and commented upon the dangers of eyewitness testimony and how people forget and remember different things over time which you have here is a five year gap between whenever this interaction was and when the testimony has been solicited by the district court in camera so what is different than a document and in a document the appellants could react to a document can look at the document is it privileged what you know what you're fighting against for due process purposes for live testimony you don't what would be the consequences of of suggesting that there is a more stringent standard for oral change the court adopted a heightened standard to recognize the difference between written documents and hold as to money well the recollection can change over time well look people testified trials regulation recollections change over time but it seems to me we're on a slippery slope if we start saying that oral testimony is to be given a more stringent standard than what is currently in place with regard to respond to something that has close content and you and when you're fighting on forward and trying to argue the point what exception doesn't apply you have something you can argue about or against if you're siri we're always going to know what the documents aren't some of these documents going to be reviewed in camera by the court with force but they're going to be our documents were clearly privilege so it's our documents which always go to the court so we know what the documents are well who that's the royal our i mean your it might be the lawyers your point with the same position from your client as what the we were saying this special when the lawyer is remembering something one from five years ago to this december the court did not that by the way in the court and also with my view needs to be further differentiate between the first steps on analysis and the second step but a reasonable basis to suspect the u s government is already take the position in the  samael instead of the advice is correct mccoy doesn't listen to what the advice is incorrect and the client follows under the government's theory as we see it that matter what the boy was consulted for no matter what advice is good whether the advice is white case on the mind circuit case all say that that has not been for the ones you have to use the advice to concoct the client if you like more the lawyers advice the lawyer had given advice that you came to direct or indirect payments and the government's decision is you can do  i'm sorry i think what you just said is hard to reconcile with our decision and in re grand jury from zero six because didn't didn't we say in that case that if the client intends to gain meaningful information that the client may used to skirt the law which i think goes to judge fisher's hypothetical the quite sought and gained meaningful information and used that to skirt the law you remember the facts of that case of all the leading needles like those the lawyer decision and because it was i don't see that as a legal advice opinion that was that was it was not information about the laws as i read that opinion it was simply that the court the lawyer said this is a pin outstanding and then the client when it destroy i don't see that is dealing with them for the months is dealing with this problem of the inference at all because you don't have legal blood being given you didn't it the way the opinion reads that opinion read it doesn't say you can't destroy documents you have to keep documents you should preserve documents none of examination of the attorney and it's a government's position that there is no distinction between examining documents versus examining an attorney this was standard operating procedure and perfectly ordinary  is the government's view that if we were to follow the appellant's position that would in fact insulate verbal communications between an attorney and a client but the court here was treat these verbal communications just as a court would treat documents the government provided questions to guide the court in its examination and the appellant's provided questions to guide the court in its examination but let's let's go to the  second argument that mr commits and that's the in furtherance argument and let's run through a series of hypotheticals start with the one where the and deliberately does not do that and what happens there the client the test is really client centric so in that case the client is intending to commit a crime and the client acts in furtherance of the crime after receiving advice from the attorney so that's the same situation that this court had in the in the two thousand and six plus for two thousand and six as were somebody they were trying to find you think that's in furtherance of and yet that's a case where the ninth circuit said it is not in furtherance of i believe that if we look at this court's precedent in two thousand and six and the fifth circuit precedent in two thousand  five what we end up with is really that whether the attorney provides advice suggesting go commit a crime whether the attorney provides advice do not go commit a crime or whether the attorney's advice is neutral as it was with  consequences of that because it seems to me that there are significant impediments to people consulting with their attorneys if we follow the route you're suggesting the first hypothetical i gave you was from  the second is that the campaign finance law you go and you ask what can be done with regard to campaign finance laws the attorney give you the information and says you can do this you can't do that and you go out and you commit a crime that in front of if the client is using that information to inform his actions then he's acting further it's a crime d c circuit disagreed with you on that and raise your case i understand that and so it is there what's what circuit support your your extension of the in further to what you're suggesting i believe this circuit supports it i believe the fifth circuit supports it in that instance the defendant was charged with a gun crime and he suggested to his lawyer how about if i pretend that my girlfriend had this gun in the lawyer said no you shouldn't do that and withdrew his representation the court held that the crime fraud exception applied and the two thousand and six case in this circuit the attorney told the client something neutral we've got a as i recall and i was on is ok tell me which documents they're looking for what you tell me which documents they're looking for i'm going to get rid of them there was actually no indication in that case i believe your honor that the attorney knew that the client was intending to get rid of the documents or directed that the client get rid of the documents but what's the limiting principle don't they have a point where they say any time you consult a lawyer that's it crime fraud is triggered but that would be a very dangerous precedent i don't agree with that charge and the reason is what's the you've got it you've got to tell us what the limiting principle is that the limit is that first of all sometimes the client will not have the intent to commit a crime when the client consults with the attorney sometimes the client will consult with the attorney but not need the attorney's advice in furtherance of the crime sometimes the client won't go commit the crime so there are a number of scenarios in which a client could consult with attorney and not use that advice in france of a crime but it decision a decision has to be made on all three of those aspects that you just mentioned that and my concern is if the decision is made post hoc then you've exposed a lawyer in every one of those scenarios this is there is there a way the decision can be made propter h that so that the lawyer there's not this intrusion into the lawyers confidential communications that necessarily has to occur before the trial judge makes one of those three findings that you just are sorry there's nothing here i should have allowed this intrusion into your confidential communication as it stands now the lawyers communications are always fair game there is an attorney client privilege but there is  grounded exception to that privilege that if the client intends to commit a crime and uses the advice in furtherance of the crime he doesn't get the privilege anymore right but precisely but i what i'm what i'm challenging you on this morning is that it would seem to me to be important that that decision be made as a threshold matter before there's a general fishing expedition for lack of a better phrase into the confidential communications between  decision is already made by the standard itself and every attorney who practices is aware of what the standard is to accept their communications from attorney client privilege ok first of all who's privileges and it's the client's priority it's not the there are instances in which the client will not use the advice in furtherance there are instances in which the client doesn't need the advice because the client's got information from other sources in making a determination as to whether to commit the crime there are instances in which the client will not commit the crime ok they take that last instance out because if you don't have a crime you know crime fraud exception i mean correct but i'm trying to get a handle on what possible communication with a counsel would be left if you had somebody that committed a crime seems to me if you committed a crime then any attorney that person talked to beforehand you could subpoena that attorney grasping the question it is is it part of the client's calculus and the client decides on a course of action how does a court looking at the communication in the very way or amend that in the very way the court did in this case purpose of the clients is it was all he can do is relate what the conversation was that's correct and the court applied the correct standard in this case in determining that there was a reasonable basis to conclude that the crime fraud exception apart it's important to remember that we're at the investigative states here we're not at trial we're not in an adversarial position but so you're saying that if the stand if you if you use the right standard and are using and the opposition council doesn't want to see two thousand and twelve standard but for purposes this question if we use a two thousand and twelve standard if you apply the right standard you get to the right answer correct so i come to you and i say i want to go as close to the line as possible legally out i want to be legal for right now but i want to goes close as possible i want you tell me what i can do what i can't do what the gray areas are what i have to do to make the gray areas legal and when they're not legal and you give you look at it you do the research and you give me the advice and i walk out and i say you know morgan gave me the advice and it wasn't quite what i thought it would be and screw it i'm just going to go ahead and go across the line which i had intended to do before just right now is that in furtherance of yes that isn't for there it's have become why then why then do i ever want to consult with an attorney i mean you're basically saying the minute you consult with an attorney back to judge vicious court and you go out and commit a crime that's it it's over it's not protected and that really seems to go against a whole lot of precedent and law in the american system for over two hundred some years well certainly it's part of our american system that we should not be encouraging people to consolidate tourney s that they can figure out the best way to commit a crime i'm not trying to figure out the best way my example was i when i was even trying to commit a crime i said i want to go to close the widest possible and then after i get what you are vice which wasn't quite what i was hoping for i any time i don't violate the law as judge fisher said don't have to worry about it because there will be that much of an investigation any time i do violate the law there is no attorney client privilege that can't be the limiting princip because even worse than that because you could be investigating and seeking an indictment in the grand jury chooses not to indict record and i guess the concern it's not my sense for you only for myself is your argument is sort of a heads we win tails you lose argument that as long as we can pin bad intent on the client place which is and has been applied for quite some time and effectively applied just as it's been applied to documents it can be applied to attorneys all right so i think that might be helpful clarification to your point is look this is just giving that the trial court the opportunity to take a look and then the trial court has to make the determination as to whether the investigation the communication ongoing representation by an attorney over a period of years and we have a transaction occurring soon thereafter that was a complex transaction involving multimillions of dollars and so certainly even though there was a slight delay on the time of the advice until the transaction was temple our proximity and that is one of the factors that the court the grand jury judge should consider but one of several factors and here the judge who was examining this issue had the ex parte affidavit from the government which set forth a great deal in front of information gleaned from grand jury investigation not available to honor the issue is did the client intend to commit a crime i didn't a year and a half ago i think i understand the distinction that the court is making the issue is what is the kinds intent at the time of the communication with and so i'm just going to violate i make a decision now the second example is i intended when i walked out of your office year and a half ago to give to do the right thing not to violate the law to follow the advice that you gave me your half later things change and i decided the heck with it i'm going take my believe that it does y anything else thank you thank you recognizing that the lawyer is on record as saying that the crime fraud exception may may apply that that was a that was a major issue at the beginning of the matter the district we think absolutely not we think that in effect should not even be undertaken absent some showing of in furtherance etc and what i'm asking you is why shouldn't the trial judge in evaluating whether an examination should occur consider that the lawyers shells you're saying the trial judge should pretend that that's not of record that's in fact that the district court judge did hear the district or tried said she did not realize we think i was the correct ruling i was the correct result this record judge can't rely on someone so that you can't rely on the privileged information to decide whether you're going to have an income what would you do after you i want other evidence then you can listen to the lawyer in camera look at the documents and camera to determine whether the privilege is going to be breached but you can't use the privilege information in the first instance  determine whether the new camera examination should occur i think that's pretty clear from zal if i can respond to the fist circuit case doesn't control here at all i can and if this are case you couldn't tell from the facts but it looked like this was a case where a gun case with a client the the girlfriend change her testimony and it looked like when you're ready that they went to the lawyer the lawyer told the witness about perjury what could be considered perjury and the lawyer dre if they had an affidavit for the client for the witness to change her testimony to be committed perjury in the affidavit so we don't see that as close to the situation here and then enter judge ambrose when the determination is when the client consult a lawyer not a year and a half later not six months later did he have the intent or she had the intent when the lawyer was consulted not that something the more the client thought of later when he's up against it used to impose a hypothetical and how can the judge the grand jury judge decide answer that question without examining the documents  examining the well the we think we're not saying you can't have an examination we're saying that have a different standard procedural safeguards so you have to have a higher standard on our view and somebody else has to be there i e that the  lawyer for the target of the work for the target so that if the right questions aren't being a yes you want to meet while we understand no many trials but the white questions are open yes i e did you talk about indirect as opposed to direct payments did you cover the waterfront so that you can determine whether the voice was using for the rights that that kind of thing can be picked up but on this kind of a record you don't you know there's no way to respond and if you have this information gets released it goes to the green jury it's used to justify an indictment and as we know one of the supreme court precedent once investment comes down it's almost impossible to dismiss for green jury abuse once the indictment is issued it's very difficult so they the place cards the safeguards have to be put in now not no i go to ms morgan and i say i was real happy with the answer you gave me so i go to another turning miss morgan and she says i give her the same facts and she says yes i my communication with you described products option apply to that if i follow the advice that she gives and is the crime fraud exception applied to my communication with her very very tiny percentage of the bar but there are some that are that's why you have to have some safeguards to protect the majority against minorities you don't have quantum ford in every case and you're undercutting the privilege of course the board and interest of as i understand the court's question i go to mr kaminski and i say can i do x y z he says no i go to you and i give you the same facts you analyze it and you come up with the answer yes i follow your advice and now i'm under investigation that the crime fraud exception applied to my conversation with mr commiserate as my arm for this our products option apply with regard to my conversation with you ask to have additional time to research that issue and then we could submit its short letter to the court but within ten days if that's acceptable i don't you know at this point we're just trying to sort it out i don't know my colleague over here is saying no let's just try to resolve it now because in that situation i have followed the advice of a good attorney and now i'm under investigation and you know i get to the fact that you're having difficulty answering it which is which i think i would too is supports mr  godfather that's not what this is about well certainly it's a balancing we we want clients to consult with their attorneys but we don't want to advocate a position in our law that you do figure out how to commit a crime or what's the best way to commit a crime the problem with that is anytime a lawyer an ethical lawyer gives good advice and intelligent client knows how to commit a crime right because the good lawyer says here are the parameters of the law and the intelligent criminal says that you now that i know the premise of the law i know where and how i'm committing the crime yes but it's so do we do we drag a lawyer into that that's the difficult to mean you know clearly your office can and should pursue the criminality zealously but where do we draw the line is the when to drag lawyers and this is the same issue has been continually existant with respect to documents for example if the same communication were reduced to documents the same issue would be before the court in the same standard would apply and they and their court look really just why you want us to applies all into verbal communication correct they have any other courts than that i believe the second circuit has done that in the john doe his court referred to that opinion with approval in its most recent opinion and it looked at both sides want to respond to