## Facts

- The IRS investigated several taxpayers for possible civil or criminal income-tax liability.
- The taxpayers obtained accountant-prepared materials (workpapers used in preparing their tax returns) and delivered them to their attorneys for legal assistance during the IRS investigations.
- The IRS issued summonses to the attorneys (not the taxpayers) demanding production of the accountant workpapers.
- The attorneys refused to comply, asserting the taxpayers’ Fifth Amendment privilege against self-incrimination and the attorney–client privilege.
- District courts ordered enforcement of the summonses in both the Fisher and Kasmir matters.
- The Third Circuit affirmed enforcement in Fisher; the Fifth Circuit reversed enforcement in Kasmir, creating a conflict on whether the Fifth Amendment privilege can block a summons served on a taxpayer’s attorney for documents received from the client.

## Issues

1. Whether enforcing an IRS summons against a taxpayer’s attorney for accountant-prepared workpapers violates the taxpayer’s Fifth Amendment privilege against self-incrimination.
2. Whether the attorney–client privilege independently protects accountant workpapers held by the taxpayer’s attorney from compelled production.

## Decision

- The Supreme Court held that enforcing the summonses against the attorneys did not violate the taxpayers’ Fifth Amendment privilege against self-incrimination.
- The Court held that the attorney–client privilege did not protect the accountant workpapers merely because the taxpayers transferred them to their attorneys.
- The Court affirmed the judgment enforcing the summons in Fisher and reversed the judgment denying enforcement in Kasmir.
- Justice Brennan and Justice Marshall concurred in the judgment; Justice Stevens did not participate.

## Legal Principles

- The Fifth Amendment privilege applies only when a person is compelled to make a testimonial communication that is incriminating; it does not protect against compelled disclosure of incriminating evidence as such.
- Compelling an attorney to produce a client’s documents generally does not “compel” the client to be a “witness” against himself because the client is not the person being forced to act.
- The act of producing documents can have testimonial aspects (e.g., admitting existence, possession, or authenticity), but the relevant compulsion must fall on the person asserting the privilege.
- A client’s transfer of documents to an attorney does not, by itself, preserve a Fifth Amendment-based objection to production where the documents are obtainable without personal compulsion on the client.
- Attorney–client privilege protects confidential client communications necessary to obtain legal advice; it does not transform pre-existing third-party documents into privileged matter simply because they are placed in an attorney’s custody.

## Conclusion

The Court permitted IRS enforcement of summonses directed to taxpayers’ attorneys for accountant-prepared tax workpapers, holding that the Fifth Amendment did not bar production because the taxpayers were not personally compelled to testify, and that attorney–client privilege did not shield the pre-existing accountant documents merely because they were transferred to counsel.


Fisher v. United States, 425 U.S. 391 (1976)