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UNITED STATES v. DE LILLO

April 21, 1978

UNITED STATES of America
v.
Andrew DE LILLO and William De Koning, Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM DECISION

 GEORGE C. PRATT, District Judge:

 An attorney-witness has asserted the attorney-client privilege on behalf of his former client. The question presented is whether and to what extent either the witness, who is a former attorney for a union pension fund, or the defendant, who is a former trustee of the fund, may raise the attorney-client privilege to protect communications concerning the fund's business (a) between the attorney and the entire board of trustees of the fund, and (b) between the attorney and the defendant who, at the time of the communications, served as chairman and a member of the fund's board of trustees. Counsel have advanced arguments relating to policy, standing and waiver.

 POLICY

 The attorney-client privilege is, of course, an important policy in the law. It is designed to encourage and protect the unimpeded flow of information between an attorney and his client when it pertains to legal advice that has been sought or given. The privilege itself, however, belongs to the client. In the relationship here the "client" may be viewed as the pension and retirement benefit fund, or possibly its board of trustees. Whichever view is taken, however, what is clear is that the "client" is not any individual trustee of the board.

 The fund's board of trustees manages the assets under its control not for the board members, but for the fund's beneficiaries. An individual trustee would seem to have no proper personal interest in protecting against disclosure of communications which pertain to the fund's business. Were it necessary for a ruling here, the court would seriously consider the government's argument that sound public policy prohibits use of the attorney-client privilege in a criminal prosecution for a fraud perpetrated against the fund of which defendant was a trustee. Such an argument need not be resolved in this case, however, since the court has concluded on other grounds that the privilege does not here bar the testimony of the attorney-witness.

 STANDING

 The government has argued that defendant, who is only a former trustee, has no standing now to claim a privilege which belongs to the fund or its board of trustees. True, an individual trustee may frequently in a representative capacity speak for the board, and thus at a trial be the agent through whom the attorney-client privilege may be asserted. But where, as here, the individual defendant is no longer a trustee, he no longer has standing to claim the attorney-client privilege for communications pertaining to the fund's business.

 Lack of defendant's standing to assert the privilege does not end the dispute, however, since the attorney-witness has properly raised the privilege question with respect to his proposed testimony; indeed, he would be required to do so, even though he no longer represents the fund.

 WAIVER

 The government also argues that the privilege has been waived, and in support it has presented to the court a letter dated September 23, 1977 addressed to the "Deputy United States Attorney" from the present counsel for the fund. The letter states that the present trustees have

 
no objection to raise, and no privilege would prevent [the attorney-witness] from answering or otherwise cooperating in any way with your investigations concerning Colonie Hill, including the pending criminal proceedings against [the defendant].

 I find and conclude that by its counsel's letter of September 23, 1977, whose authenticity and authorization have not been challenged, the fund and its board of trustees have waived their attorney-client privilege with respect to the communications in question. We have here a claim of privilege advanced in court by the former attorney, but met by a letter from the present attorneys indicating no desire on the part of the present board of trustees to assert the privilege. As to this type of conflict between attorneys, Judge Weinstein has commented that

 
if the former and present attorneys differ in their view of the client's position, the current attorneys' position should be followed. 2 ...

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