## Facts

- A federal grand jury investigated a former Georgia candidate for public office and the corporate campaign entity for possible federal-law violations tied to campaign spending and reporting.
- Georgia law required periodic campaign disclosure reports listing contributions and expenditures, including the recipient and general purpose of each expenditure, and required signatures from the candidate or certain campaign officials.
- The government suspected campaign funds were used for the candidate’s personal expenses and were either not disclosed or were misdescribed in required disclosure forms.
- The campaign’s attorney helped prepare and file the campaign’s financial disclosure forms and, before filing, was aware of certain expenditures that were potentially personal.
- The grand jury twice subpoenaed the attorney for testimony; after the second subpoena, the attorney indicated he would assert attorney–client privilege as to communications with the candidate and the campaign about expenditures and disclosure forms.
- The government moved to compel the attorney’s testimony under the crime-fraud exception; the campaign moved to quash the subpoena based on privilege.
- The district court (N.D. Ga.) granted the motion to compel in part and denied the motion to quash, ordering testimony about advice regarding expenditures and disclosure filings during the relevant period.
- The campaign appealed, disputing the scope and application of the crime-fraud exception.

## Issues

1. Whether the federal crime-fraud exception requires proof that the attorney’s advice actually advanced or facilitated the client’s crime or fraud, as opposed to showing the client used legal services “in furtherance” of ongoing or future wrongdoing.
2. Whether the government made a sufficient prima facie showing that the challenged attorney–client communications fell within the crime-fraud exception, permitting compelled grand jury testimony.

## Decision

- The Eleventh Circuit affirmed the district court’s order compelling testimony and denying the motion to quash.
- The court held the government made a prima facie showing that the client was engaged in or planning criminal or fraudulent conduct when seeking counsel and that the communications were in furtherance of that conduct.
- The court rejected a rule requiring proof that the attorney’s advice successfully furthered the alleged scheme or that the attorney knowingly participated in wrongdoing.
- The attorney could be compelled to testify before the grand jury about communications within the scope of the crime-fraud exception.

## Legal Principles

- Attorney–client privilege does not protect communications made to obtain legal assistance in furtherance of ongoing or future crime or fraud.
- To invoke the crime-fraud exception, the proponent must make a prima facie showing that (1) the client was engaged in or planning crime or fraud when it sought legal advice, and (2) the communications were in furtherance of that wrongdoing rather than merely about past conduct.
- The exception turns on the client’s purpose and use of the communications; it does not require proof that counsel’s advice actually advanced the unlawful conduct.
- The attorney’s lack of knowledge or intent to facilitate wrongdoing does not preserve privilege once the prima facie crime-fraud showing is made.

## Conclusion

The Eleventh Circuit held that the crime-fraud exception applied to communications between a political campaign (and its candidate) and campaign counsel concerning disclosure filings where the government made a prima facie showing that the communications were used in furtherance of suspected fraudulent misreporting, allowing compelled grand jury testimony despite an attorney–client privilege claim.


In re Grand Jury Subpoena, 2 F.4th 1339 (11th Cir. 2021)