In Pursuit of Truthiness
“Truthiness,” according to Stephen Colbert, “is what you want the facts to be, as opposed to what the facts are. What feels like the right answer as opposed to what reality will support.” See Wikiality.
Distinguishing between “the truth” and “truthiness” is frequently difficult, if not impossible. That fact was highlighted by DealBook on Tuesday when it discussed the efforts of the Office of the Comptroller of the Currency to gain access to attorney interview notes. View the DealBook article here.
DealBook recounted how the OCC, while investigating JPMorgan’s ties to convicted Ponzi schemer Bernie Madoff, attempted to gain access to the employee interview notes of JPMorgan’s attorneys. The OCC was convinced that when interviewed by the regulator, those same employees were not entirely truthful and hoped that the JPMorgan attorney notes would reveal the real truth. The OCC even asked the Justice Department to invoke the crime-fraud exception to the attorney-client privilege in order to compel production of the notes.
But the Justice Department refused.
As the U.S. Court of Appeals for the Third Circuit noted last month, the attorney-client privilege is the oldest privilege for confidential communications known to common law. And although the communications between an attorney and client may be important to uncovering the truth, they are viewed as almost sacrosanct.
Almost sacrosanct because, as the OCC tried to establish in its investigation of JPMorgan, the crime-fraud exception to the privilege does exist, and can be invoked successfully.
The steps which must be taken to do so were outlined by the Third Circuit. In that case a federal grand jury convened to investigate alleged violations of the Foreign Corrupt Practices Act subpoenaed an attorney who had once represented the targets of the investigation. The targets sought to quash the subpoena but the district court, after questioning the attorney in camera, found that the crime-fraud exception applied and compelled the attorney’s testimony.
The district court found, and the Third Circuit affirmed, that the attorney was being consulted in order to further a crime or a fraud. It emphasized the temporal importance of when the consultation occurred. Communications are exempt only where the “wrong-doer had set upon a criminal course before consulting counsel.”
The search for truth continues.