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Attorney Loses Appeal |of Disclosure Order

(CN) - The 4th Circuit rejected the appeal of an attorney who received a contempt citation for failing to produce documents in a fraudulent billing investigation.

The U.S. Attorney's Office asked Heidi Janelle Silver Myers, founder of the Myers Law Group, to produce documents related to its investigation in 2006.

A team seized several boxes of documents in her office, but failed to find all the closed cases and records described in the search warrant. So, in November 2006, a grand jury issued two subpoenas ordering Myers to appear in court with the remaining records, her server and her back-up hard drive.

She failed to appear and instead moved to quash the subpoenas based on work-product and attorney-client privilege.

The district court denied the motion and ordered Myers to hand over all documents she didn't consider privileged. It agreed to review the rest to determine if they were, in fact, privileged.

But Myers once again failed to produce all the subpoenaed documents, citing her Fifth Amendment protection against self-incrimination.

The district court adopted a magistrate judge's finding that the Fifth Amendment protected only personal documents created before Myers incorporated her law practice in December 2005.

However, the court concluded that subpoenaed documents were not protected from disclosure under the crime-fraud exception.

The 4th Circuit in Richmond, Va., dismissed Myers' appeal for lack of jurisdiction, explaining that she hadn't been cited with civil contempt.

The next year, Myers was indicted on one count of conspiracy to defraud the government, 99 counts of mail fraud and 12 counts of wire fraud. She was accused of overbilling the West Virginia Public Defender Services for work she never performed on behalf of indigent clients and for charging the wrong hourly rate for workers who weren't attorneys.

The government subpoenaed the same missing documents requested in the 2006 grand-jury subpoenas.

The district court found Myers in contempt, and she again appealed to the 4th Circuit, challenging the earlier order forcing her to hand over the documents.

The court said it again lacked jurisdiction in light of the Supreme Court's recent decision in Mohawk Industries v. Carpenter, which limited appeals on disclosure orders.

"The court made plain that delaying review for a challenge invoking the attorney-client privilege does not imperil any substantial public interest or other value enough to render the order being appealed 'effectively unreviewable on appeal from the final judgment in the underlying action,'" Judge Allyson Duncan wrote.

"We recognize the irony inherent in our decision, namely that Myers must comply with the November 19, 2007 order to appeal her contempt citation for violating that order," she added. "We are constrained, however, by the procedural posture in which Myers raised the issue."

The court dismissed the appeal for lack of jurisdiction.

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