The opinion of the court was delivered by: Robson, Chief Judge.
This matter is before the court on the petition of the
United States for an order directing Edwin Shapiro, a witness
before the February 1974 Grand Jury, to deliver certain tax
records named in a subpoena duces tecum to the grand jury.
Shapiro has refused to produce the records on the basis of the
attorney-client privilege in that he is an attorney and that
Robert W. Rajewski, the taxpayer whose records are the subject
of the subpoena, has instructed him to assert the privilege.
For the reasons set forth below, the court is of the opinion
that the privilege was not properly invoked and, accordingly,
the government's petition shall be granted.
The documents sought by the government fall within three
1) retained copies of Rajewski's income tax
2) summaries of income and expenses furnished to
Shapiro by Rajewski and used by Shapiro in the
preparation of Rajewski's income tax returns; and
3) workpapers and schedules prepared by Shapiro
in the preparation of those income tax returns.
The essential elements of the attorney-client privilege are
set forth as follows:
"(1) Where legal advice of any kind is sought
(2) from a professional legal advisor in his
capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by
the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by
the legal advisor, (8) except the protection be
waived." 8 Wigmore, Evidence § 2292 (McNaughton
The burden of establishing the foregoing rests on the
claimant seeking to assert the privilege and its scope should
be "strictly confined within the narrowest possible limits."
8 Wigmore, Evidence § 2291 (McNaughton rev. 1961); United
States v. Goldfarb, 328 F.2d 280 (6th Cir.), cert. denied,
377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); United States
v. Schmidt, 360 F. Supp. 339 (M.D.Pa. 1973). The court is of the
opinion that the witness has failed to establish the second and
The second prerequisite cited by Wigmore is that the
attorney must have been acting in his capacity as a
professional legal advisor at the time the disclosures were
made. Thus, where the attorney acts as a business advisor or
collection agent,*fn1 gives investment advice,*fn2 or
handles financial transactions for his client,*fn3 the
communications between him and his client are not protected by
the privilege. Similarly, where the services performed by the
professional are typically rendered by an accountant, the fact
that the person employed happens to be an attorney should not
change the status of what would otherwise be unprivileged
communications. Olender v. United States, 210 F.2d 795 (9th
Cir. 1954); United States v. Chin Lim Mow, 12 F.R.D. 433
The fourth prerequisite cited by Wigmore is that the
privilege protects only those documents and oral statements
communicated to the attorney in professional confidence.
Colton v. United States, supra. However, the documents sought
herein consist of information not intended by the taxpayer to
be confidential. The retained copies of the income tax returns
are, of course, of a non-confidential nature, as the material
was intended to be communicated to third parties; the same is
true for the income and expense summaries given to Shapiro for
inclusion in the returns. The workpapers of Shapiro, by
definition, consisted of information that was intended to be
transcribed onto the tax returns, and cannot be of a
confidential nature. It is therefore clear that the documents
sought by the United States were not communicated in confidence
and do not fall within the attorney-client privilege. Colton v.
United States, supra; United States v. Merrell, 303 F. Supp. 490
(N.D.N.Y. 1969); In re Fisher, 51 F.2d 424 (S.D.N.Y. 1931); see
Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d
1. The counter-petition of Edwin Shapiro that this court
quash the subpoena duces tecum served upon him shall be, ...