June 5, 2017
“The court is loath to invade the attorney-client privilege except upon the most persuasive prima facie presentation, as the Trustee has made in support of his Motion”
A recent decision in the Western District of Michigan Bankruptcy Court, allows for a Trustee to subpoena a debtor’s Attorney for correspondence that the non-moving party argues is protected by attorney-client privilege. In the matter of In re Rosich, Adversary Case Number 15-80203, the Court came to this careful determination by citing the crime-fraud exception and using a two-part test to show why attorney-client privilege does not apply in this case. Within this decision, the Court did not simply open the flood gates; instead they applied an important distinction between pre/post wrongdoing to limit the scope of the subpoena.