University of Minnesota law professor, Edward S. Adams, finds himself the subject of a federal criminal indictment. He is alleged to have duped investors and unlawfully enriched himself. The superseding indictment portrays a classic investment fraud scheme where investments were solicited for a business (“laboratory-grown diamonds”) but the investment dollars were allegedly pocketed and spent for personal benefit rather than invested in the business.

In his criminal case, Prof. Adams is represented by a high-powered team including Deborah Ellingboe and Jim Volling of Faegre Baker Daniels and a battalion of accomplished lawyers from one of the most prestigious law firms on earth: Williams & Connolly.

Thanks to them, we not only can be secure that Prof. Adams will have the benefit of the strongest defense money can buy but we can also benefit from their work product on Prof. Adams’ behalf.

For example, they recently raised attorney-client privilege and attorney work-product doctrine claims to fight off the production of documents to the prosecution and they appear to have been largely but not entirely successful.

The recent order by U.S. Magistrate Judge Katherine Menendez (D. Minn.) is a thorough and thoughtful examination of a handful of privilege claims raised by Adams’ defense team addressing the following questions:

  • If a client’s tax lawyer hires an accounting firm and the client communicates with the accounting firm, would these communications fall under the attorney-client privilege?
  • If, after consulting with a tax lawyer and an accounting firm, a client submits amended tax returns to the IRS, does the filing of amended returns waive any privilege claims over communications about the amendment (which is, of course, not privileged itself)?
  • When legal advice is alleged to have been sought to further an illegal or fraudulent scheme, what is the burden of proof that the government (or other party seeking discovery) needs to meet to prove the crime-fraud exception to the attorney client privilege applies?
  • When lawyers or a law firm are sued, are their internal discussions privileged?
  • When a lawyer is a corporate officer and communicates about legal issues involving the corporation with other lawyers, can the lawyer/corporate officer claim privilege over those communications or does the privilege belong to the corporation?

Judge Menendez answers these questions raised by Prof. Adams’ lawyers, all of which can be as important in civil litigation as they are in criminal prosecutions, of course.

Minnesota Litigator focuses on news and commentary on Minnesota civil litigation and we are known for our predictions in civil litigation (by three or four people, maybe, but still). (But see here too.)

We do not practice criminal law and we do not have access to all of the information about Prof. Adams’ criminal proceeding, but, seeing the allegations in the indictment, knowing the conviction rate of federal criminal prosecutions (north of 90%), we’ll go out on a limb and predict that, notwithstanding the best lawyers money can buy (perhaps literally), this process will not end well for Professor Adams. That is, we predict a guilty plea or a conviction.

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