## Facts

- Federal investigators examined thefts of checks payable to IBM that were diverted and deposited into bank accounts opened under fictitious organization names, including one using “IBM.”
- An FBI agent showed attorney Richard Durant a copy of a $15,000 check drawn on one such account and payable to Durant’s law firm.
- Durant acknowledged his firm received and endorsed the check as payment for legal services for a client in two matters (one completed, one ongoing) but refused to identify the client, asserting attorney-client privilege.
- Durant was subpoenaed to testify before a federal grand jury the next day and again refused to disclose the client’s name.
- The government sought an order compelling disclosure; Durant argued that identifying the client would incriminate the client and provide the “last link” to an indictment.
- The district court ruled that attorney-client privilege did not protect the client’s identity, ordered disclosure, and held Durant in civil contempt when he refused.
- Durant appealed the contempt order to the Sixth Circuit.

## Issues

1. Whether attorney-client privilege protects a client’s identity from disclosure to a federal grand jury when disclosure would likely incriminate the client.
2. Whether a client’s identity becomes privileged under a “legal advice” theory when disclosure would purportedly implicate the client in the misconduct for which legal advice was sought.
3. Whether a client’s identity becomes privileged because it is the “last link” needed to complete an evidentiary chain leading to indictment.

## Decision

- The Sixth Circuit affirmed the contempt order.
- The court held Durant did not carry his burden to show that client identity fell within any recognized exception to the general rule that identity is not privileged.
- The court rejected a freestanding “last link” theory untethered to protection of confidential attorney-client communications.
- Because the privilege did not apply, Durant lacked lawful justification to refuse compliance with the grand jury-related order.

## Legal Principles

- Attorney-client privilege is narrowly construed; the party asserting it bears the burden of proving its applicability.
- A client’s identity and fee-related information are ordinarily not privileged because they are typically non-communicative facts rather than confidential legal communications.
- A limited exception may apply if disclosure of identity would necessarily reveal the substance or purpose of a confidential communication seeking legal advice; conclusory assertions are insufficient.
- The fact that disclosure would be incriminating or highly probative does not itself convert non-privileged information into privileged material; the privilege protects confidential communications, not evidentiary gaps.
- Failure to provide a sufficient factual basis to support an exception (including by requesting in camera review where appropriate) may defeat the privilege claim.

## Conclusion

The Sixth Circuit upheld civil contempt against an attorney who refused to identify a client to a grand jury, ruling that client identity was not privileged on this record and that neither alleged incriminatory effect nor “last link” significance justified withholding it absent proof that disclosure would reveal confidential legal advice communications.


In re Grand Jury Investigation No. 83-2-35 (Durant), 723 F.2d 447 (6th Cir. 1983)