February 6, 2018

Incriminating Attorney Payments Not Protected; Boulangger v. Ohio Valley Eye Inst., P.C.

Category: Indiana Law Review | Author: | Share:

The attorney-client privilege is strong and protects clients from the unauthorized disclosure of their information. But it does not protect every type of communication—payment history, for example, is generally not protected. And the fact that this payment history may incriminate the client is no exception to this particular rule regarding disclosure.

Boulangger was an employee of OVEI, and she was accused of stealing money from the company. OZEI filed a complaint against Boulangger in March 2015. The State also filed criminal charges, which were dismissed without prejudice in February 2016. OVEI eventually obtained a judgment for more than $500,000.

In January 2017, OVEI filed a verified motion for proceedings supplemental to execution. It sought discovery and served Boulangger’s attorneys with a non-party request for production and a subpoena duces tecum. OVEI sought the following:

Copies of any and all check and/or wire transfers received from [Boulangger] or from others on behalf of [Boulangger] for legal fees paid for her representation.

Boulangger moved to quash, arguing that the information sought was both protected by the attorney-client privilege and Boulangger’s Fifth Amendment right against selfincrimination. The trial court denied the motion, and Boulangger appealed.

The Court noted that the Indiana Supreme Court had recognized in 1978 that information regarding a client’s attorney fees is not protected by the attorney-client privilege because the payment of fees is not considered a confidential communication between an attorney and his or her client. The question is whether this case was an exception to that general rule—in other words, is there an “incrimination” exception.

Boulangger argued that there should be, because she was still being criminally investigated and this kind of information may assist that investigation. But the Court found that there was no “incrimination” exception to the rule that information regarding a client’s attorney fees is not protected, for the authority Boulangger cited for this proposition did not actually support it. Rather than creating such an exception, the Court found that only confidential communications are protected, and that information regarding the payment of fees was not such a communication in this case.

The Court also found that Boulangger’s Fifth Amendment arguments were unavailing, for it was the law firm, not Boulangger, which was being asked to produce information, and the Fifth Amendment did not prevent such a disclosure. Thus, Boulangger’s payments to her attorneys would need to be produced, even if they were incriminating.


The fact that a client’s payment history to their attorney may be incriminating does not protect that history from being disclosed in discovery.