2316
Compelled Disclosure of Confidential
Communications During the Course of the Representation
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As set forth above, actual knowledge of the forfeitability of an
asset, cannot be established by compelled disclosure of confidential
communications made during the course of the representation. See
this Manual at 2307. This limitation upon
compelled disclosure of confidential communications does not preclude
the use of these confidential communications when they are voluntarily
disclosed. For example, the testimony of the defendant at trial may be
relied upon. This limitation also does not preclude the use of a
subpoena to obtain non-privileged fee information, such as the amount,
source and method of payment. See this Manual at 2317. But the subpoena
may not seek to obtain any confidential communications.
This limitation on compelled disclosures does not recognize
or imply that all confidential communications between a client
and an attorney are protected either by that attorney-client
privilege or the constitutional right to counsel. Only those
confidential communications which meet all the requirements for
privilege or which relate to defense preparation are protected.
See, e.g., United States v. Carrillo, 16 F.3d 1046,
1050 (9th Cir. 1994); In re Auclair, 961 F.2d 65, 69-70
(5th Cir. 1992); United States v. Melvin, 650 F.2d 641,
645 (5th Cir. 1981); United States v. King, 536 F. Supp.
253, 264-65 (C.D.Cal. 1982). The Department imposes this
limitation in recognition of the fact that the need for clients
to make full and free disclosure to their attorneys outweighs the
detriment of placing limitation on the use of some non-privileged
communications in certain limited situations.
[updated August 1999] [cited in Criminal Resource Manual 2307; Criminal Resource Manual 2312; Criminal Resource Manual 2318; USAM 9-119.202] | |