Whether the attorney-client privilege protects the identity of a client when the government is aware of the client's confidential communication with legal counsel or the motive for seeking advice

QUESTION PRESENTED The IRS audited a taxpayer. During the audit, the taxpayer divulged tax planning legal advice he obtained from a law firm. The IRS disagreed with the advice and determined that it caused the taxpayer to underpay taxes. The IRS then issued a John Doe summons to the firm, requesting it to produce all documents that reflect the identities of its clients who sought the same services as the audited client. The firm refused because doing so would reveal its clients’ confidential information, including their motive for seeking legal advice. The district court recognized that this case presents a serious legal question with potentially farreaching effects but overruled the firm’s privilege objection. The Fifth Circuit affirmed in a published decision that conflicts with several other decisions on this issue. Eight out of seventeen Judges voted to grant the firm’s motion for rehearing en banc, with six Judges joining in a dissenting opinion that emphasized the reasons the Court should have granted the firm’s motion. This case presents the following important question of federal law that has not been, but should be, settled by this Court: When the Government is aware of a citizen’s confidential communication with legal counsel or the motive for seeking advice, but is unaware of the citizen’s identity, are documents that reflect the client’s identity protected by the attorneyclient privilege?