Fisher v. United States Case Brief

Why is the case important?

The Supreme Court of the United States (“Supreme Court”) granted cert in this case to resolve the conflict between the Third and Fifth Circuits regarding the extent to which the Fifth Amendment constitutional privilege of a client extends to an attorney when that attorney has been subpoenaed to produce documents given to him by his client.

Facts of the case


Whether documents which would have been protected by the Fifth Amendment of the Constitution in the hands of an attorney’s client remain protected when they have been transferred to the attorney.


Documents which were protected in a client’s hands lose any Fifth Amendment constitutional protection when they have been transferred to an attorney because the potential compulsion to testify against oneself has been removed.
Concurrence. Because the papers in this case are business, not personal, Justice William Brennan (J. Brennan) concurred in the judgment, but writes separately to disagree with the majority as to the extent to which the Fifth Amendment of the Constitution applies to the forced production of private papers, reasoning that privacy is a bedrock principle of the Fifth Amendment privilege against self-incrimination.
Justice Thurgood Marshall (J. Marshall) concurred separately to express his optimism that the trial bench will apply the new procedure, rather than the content based standard for production under the Fifth Amendment, responsibly and appropriately.


“The United States Supreme Court held that the enforcement of the summonses against the taxpayers’ attorneys did not violate the taxpayers’ Fifth Amendment privilege against self-incrimination

  • such enforcement did not “”compel”” the taxpayers to be “”witnesses”” against themselves, and did not deprive them of any privilege not to be compelled to testify and not to be compelled to produce private papers in their personal possession. Moreover, the Court averred that although the attorney-client privilege applied to documents in an attorney’s hands that would have been privileged in his client’s hands by reason of the Fifth Amendment privilege against self-incrimination, the attorney-client privilege did not bar enforcement of the summonses. Where the taxpayers, if production of the documents had been sought from them, could not have invoked the Fifth Amendment privilege against self-incrimination, even though by producing the documents the taxpayers would have tacitly conceded their existence, the taxpayers’ acts of producing the documents would not have involved testimonial self-incrimination within the protection of the Fifth Amendment.”
    • Case Brief: 1976
    • Petitioner: Fisher
    • Respondent: United States
    • Decided by: Burger Court

    Citation: 425 US 391 (1976)
    Argued: Nov 3, 1975
    Decided: Apr 21, 1976