Avoid Getting Between A Rock And A Hard Place: Don’t Become A Client’s Surrogate In Communicating With The Government

Sometimes, even seemingly innocuous acts can cause intractable problems. In one recent tax case, United States v. Matsa, S.D. Ohio No. 09-297, 2010 WL 117548 (Oct. 19, 2010), a simple letter from an attorney to the government concerning a records custodian’s document production caused the lawyer’s disqualification and exposed him to criminal prosecution.

It is well known that a corporate custodian cannot resist a subpoena for corporate records on Fifth Amendment grounds, even if they incriminate the custodian personally, no matter how small the corporation. See Braswell v. United States, 487 U.S. 99, 102 and 117, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988) (subpoena to the president, sole shareholder and only individual with authority over the corporation’s affairs). Corporations are artificially created entities that have no Fifth Amendment privilege. Id. at 102, citing Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). When a custodian responds to a subpoena for corporate records, he acts in a representative rather than a personal capacity. Braswell at 110.

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