Tenth Explains Limits of Attorney-Client Privilege When Corporate Counsel is Involved; Convictions Affirmed

U.S. v. Merida, 828 F.3d 1203 (7/12/16)(Published)(Okl.) - The 10th affirms convictions for fraud, embezzlement and failing to report income on tax returns, holding Mr. Merida's statements under oath during an investigation were not covered by an attorney-client privilege with the Choctaw Nation's counsel. Mr. Merida was the Nation's executive director of construction. At the beginning of the interrogation, the Nation's attorney told Mr. Merida his statements were covered by attorney-client privilege because he worked for the tribe. Counsel also announced the Nation asserted any privilege and all Mr. Merida's statements were confidential. The Nation gave the transcript of the questioning to the government. At trial, during the government cross of Mr. Merida, he admitted he had made a couple of inaccurate sworn statements during the investigatory interrogation. Defense counsel moved for a mistrial on the ground that whatever Mr. Merida said during the interrogation was covered by attorney-client privilege. The 10th notes any privilege from communications between corporate counsel and corporate officers, such as Mr. Merida, belong only to the corporation, not the officer. An officer can assert the privilege only if corporate counsel conversed with the officer in an individual capacity. There are five prerequisites for counsel-officer conversations to be privileged on behalf of the officer: (1) the officer approached counsel for legal advice; (2) the officer made it clear the officer was approaching in his individual capacity; (3) counsel communicated with the officer in his individual capacity, knowing there could be a possible conflict; (4) the conversations were confidential; (5) the substance of the conversations did not concern corporate matters. Mr. Merida had failed to meet at least 4 [(1)-(3) & (5)] of the requirements. And the Nation waived its privilege when it gave the statements to the U.S. Attorney. Plus any error would be harmless, given the overwhelming evidence, the 10th says. The 10th is not impressed by Mr. Merida's claim the case was close because the jury felt it was deadlocked at one point. The jury only indicated it was deadlocked on one count and it convicted Mr. Merida of 6 of the 7 counts.

Judge Lucero concurs. He makes explicit what he thinks the majority implicitly ruled. Judge Lucero finds the privilege would not apply here even assuming without deciding that the privilege applies when a corporate counsel reasonably suggests to a layperson that a personal privilege exists, The judge concedes that a layperson might have missed the nuance of the Nation/individual distinction when counsel declared the statements were covered by the privilege. But the circumstances made it unreasonable for Mr. Merida to believe the conversation was privileged because: his supervisor ordered him to undergo the interrogation; and he was told the investigation's purpose was to help the Nation in an ongoing civil trial. Plus Mr. Merida's false statements showed he didn't really believe his statements would be kept confidential. This is apparently so because clients never lie to their attorneys.