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Re: Counsel's recorded interview with client remains privileged



Thank you for sharing this. My research yielded similar results. Whether release is required in the court's analysis hinged on when a statement was made. If the government would have been entitled to obtain it through a proper search or subpoena of the accused, then being in the possession of the attorney does not give it greater protection but if it is created at the behest of the attorney or after ACR forms it gets fifth Amendment protections as well as A-C privilege protection. I think being in a middle of a trial caused me to miss these cases. 

Haytham Faraj 
Sent from my iPhone

On Mar 31, 2011, at 2:19 AM, DHSULLIVAN@aol.com wrote:

The more I thought about what we discussed, the more I realized that Jones' ruling in the previous case was insane.  OF COURSE the recording is privileged.  And here's a case that confirms that:
 
United States v. Spector, 793 F.2d 932 (8th Cir. 1986)
 
During the course of Adams' cross-examination, it was revealed that Adams had made some tapes at the direction of his attorney to assist the latter in his representation of Adams as a potential defendant. Government counsel did not know the contents of those tapes, had never had them in their possession, and strongly deny they ever knew such tapes existed prior to the cross-examination of Adams. The tapes were sealed at the office of Adams' attorney. There is no indication of an intention that these tapes be disclosed to a third party.

As was recognized in United States v. (Under Seal), 748 F.2d 871 (4th Cir.1984), the attorney-client privilege protects âcommunications not intended to be disclosed to third persons other than in the course of rendering legal service to the client.â Id. at 874. The court relied on Supreme Court Standard 503(a)(4), which states in pertinent part: âA communication is âconfidentialâ if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client.â Although Congress did not adopt this rule, courts have relied upon it as an accurate definition of the federal common law of attorney-client privilege, as this court specifically noted in Citibank, N.A. v. Andros, 666 F.2d 1192, 1193 n. 6 (8th Cir.1981). âConsequently, despite the failure of Congress to enact a detailed article on privileges, Standard 503 should be referred to by the Courts.â 2 J. Weinstein, Evidence  503[02] at 503-17 (1975). The trial court did not err in quashing the subpoena for the sealed tapes in the possession of Adams' attorney.

Id. at 938.