## Facts

- An unnamed Illinois attorney, referred to in the opinion by the pseudonym “Tom Hagen,” represented at least 21 defendants in Illinois state-court gambling prosecutions.
- A federal grand jury sitting in Chicago issued a subpoena requiring Hagen to (1) testify and (2) produce documents and records identifying every individual or entity who paid legal fees connected to Hagen’s representation of the named gambling defendants, including the amounts and dates of payments.
- Hagen moved to quash the subpoena. The district court held a closed hearing on the motion.
- Hagen argued that compliance would identify people who had sought his legal advice and that some of those people were targets of the federal investigation (or would be named as unindicted coconspirators).
- Hagen also argued that revealing who paid the fees would supply the government with the “last link” needed to connect fee payors to the gambling defendants and support federal charging decisions.
- The district court denied the motion to quash, concluding that the subpoena sought fee and payor information not protected by the attorney–client privilege.
- Hagen appealed and submitted a sealed four-page affidavit as part of the appellate record.

## Issues

1. Whether the attorney–client privilege bars enforcement of a grand jury subpoena requiring an attorney to disclose who paid legal fees for clients, along with the amounts and dates of payments.
2. Whether the privilege extends to otherwise nonprivileged fee/identity information on a “last link” theory because disclosure would help connect individuals to suspected criminal activity.
3. Whether the subpoenaed fee and payor information fit the Seventh Circuit’s narrow exception (associated with *Matter of Grand Jury Proceeding (Cherney)*) when disclosure would, in substance, reveal a confidential attorney–client communication.

## Decision

- The Seventh Circuit affirmed the district court’s order denying the motion to quash and enforcing the subpoena.
- The court held that client identity and fee payment information are generally outside the attorney–client privilege.
- The court declined to adopt a broad “last link” privilege recognized in some other circuits.
- The court held that Hagen did not show—based on the record, including his sealed affidavit—that disclosing payor identities and payment details would itself reveal any confidential communication protected by the privilege.

## Legal Principles

- Attorney–client privilege protects confidential communications made for the purpose of obtaining legal advice; it does not generally protect underlying facts such as a client’s identity or the fact, source, amount, or timing of fee payments.
- In the Seventh Circuit, fee or identity information may be protected only in the rare situation where disclosure would effectively disclose the substance of a confidential attorney–client communication (the narrow *Cherney* type exception).
- Information does not become privileged merely because it is incriminating or useful to investigators; the privilege is not a tool for withholding evidence on that basis.
- The party asserting privilege bears the burden of showing that the specific information sought is privileged, and courts construe the privilege narrowly in the grand jury setting.
- Appellate review of the district court’s privilege ruling is de novo when the dispute turns on the legal scope of the privilege rather than disputed facts.

## Conclusion

The Seventh Circuit required attorney “Tom Hagen” to comply with the grand jury subpoena seeking identities of fee payors and related payment details, holding that such information is ordinarily not privileged and that Hagen failed to show the narrow Seventh Circuit exception applied because disclosure would reveal a protected confidential communication.


In re: Subpoenaed Grand Jury Witness, 171 F.3d 511 (1999)