A recent TheIndianaLawyer.com, by Olivia Covington, “COA: Attorney Fee Records Not Protected or Confidential” reports that an Indiana trial court did not err by denying a motion to quash a request for the production of attorney fee records because such records are not protected by attorney-client privilege or the Fifth Amendment, the Indiana Court of Appeals ruled.
After Diyee Boulangger allegedly over-reported her hours and hourly rate during her three years of employment with Ohio Valley Eye Institute, P.C., her former employer filed a conversion, theft, theft by false impression, fraud and forgery complaint against Boulangger. The state also filed criminal charges against Boulangger, but dismissed them without prejudice in February 2016.
The eye institute then moved for summary judgment in June 2015, but Boulangger responded with an affidavit from her attorney, David A. Guerrettaz, claiming the Evansville police Department had continued to investigate her even after the criminal charges were dropped. Thus, Guerrettaz argued his client could not present facts in response to the summary judgment motion without violating her Fifth Amendment right against self-incrimination.
The Vanderburgh Superior Court eventually granted summary judgment to OVEI and awarded it a nearly $519,000 judgment, plus costs and post-judgment interest. OVEI then moved for the trial court to order Boulangger to appear in court to testify to any non-exempt property to could be applied toward the judgment.
The eye institute also served Guerrettaz’s law firm with a non-party request for production of documents and subpoena duces tecum, seeking “(c)opies of any and all check and/or wire transfers received…for legal fees paid for (Boulangger’s) representation.” Boulangger responded with a motion to quash, arguing the requested documents were protected by attorney-client privilege and her Fifth Amendment rights against self-incrimination.
The trial court disagreed and ordered the firm to produce the requested documents, so Boulangger filed an interlocutory appeal in Divee Boulangger v. Ohio Valley Eye Institute, PC. The Indiana Court of Appeals upheld the trial court’s order, concluding the documents in question were not protected communications.
Specifically, Judge Rudolph Pyle rejected Boulangger’s request for an “incrimination” exception to the rule that a client’s attorney fees are not protected by attorney-client privilege. Drawing on precedent from in cases such as Hueck v. State, 590 N.E.2d 581, 584 (Ind. Ct. App. 1992) and Matter of Witnesses Before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984), Pyle wrote the requested information – which included the source and amount of fees Boulangger paid – was neither confidential nor protected by attorney-client privilege.
Similarly, precedent in Fisher v. United States, 425 U.S. 391 (1976), defeated Boulangger’s Fifth Amendment argument because “the Supreme Court held that the Fifth Amendment did not preclude compelled disclosure of information from a third party such as a defendant’s attorney,” Pyle said.