In Re Grand Jury Subpoena Served Upon John Doe, Esq. Richard Roe, Intervenor-Appellant v. United States

238 We Alemany’s tenure as during

anees created govern reviewed the under 18 ment’s conviction U.S.C. summary, controller. A and are satisfied that the de 1001 can rest on evidence that there nois merit § to Alemany’s contentions. wilfully caused a knowingly fendant only Not did the judge district specifically govern made to a false statement to be advert to certain factors that he viewed as not have agency; ment the defendant need aggravating Alemany’s but, conduct at the prepared the himself. United statement close of the proceedings, he informed the Mouton, (5th F.2d 736 Cir. v. 657 States parties of aggravating factors in the pre- 1981). report sentence that he had excluded from deliberations, his even though they ap had Next, Alemany argues that the 2. parently not been objected the de reversible error in district court committed Alemany’s fendant. sentence was within denying his for severance of his motion the bounds of the district discretion, court’s trial from of Stella under Fed.R. and we see no defect in the manner in pur Crim.P. 14. motion made A severance which imposed. it was We have no authori Rule 14 is a matter for the district suant to ty change it. See United States v. Pa discretion, and we will court’s reverse sarell, 13, 727 (1st F.2d 17-18 Cir.), cert. only a motion defend denial of such — denied, —, U.S. 107, 105 S.Ct. 83 strong showing that ant able to make a (1984). L.Ed.2d 51 deprived him trial. the denial fair Affirmed. Bautista, 97, F.2d v. 731 United States (1st Cir.1984); Ar 99-100 United v. States 671, (1st Cir.1983).

ruda, 715 679 F.2d

Here, Alemany conclusory contends unfairly prejudiced by fashion that he was In re GRAND JURY SUBPOENA government’s “spillover effect” of the DOE, Esq. SERVED UPON John Stella, against effectively found case guilty by judge, association. district ROE, Intervenor-Appellant, Richard however, jury that expressly cautioned the duty give separate personal it their “to was America, Appellee. consideration to the case of each individual UNITED STATES of Alemany acquitted defendant.” was on six 638, No. Docket 84-6319. of the nine counts with which he was Appeals, United States Court of Thus, charged. appear would Second Circuit. fact, jury, gave attention individualized Greenleaf, case. United States v. Originally Argued Before Panel 182, (1st Cir.1982), F.2d 187 de cert. 1984; 13, Dec. nied, 1069, 1522, S.Ct. 1, April Decided 1985. (1983); L.Ed.2d 946 United v. Tash States Rehearing for Petition Submitted to (1st 829, Cir.), jian, 660 F.2d cert. 24, 1985; May Panel denied, S.Ct. Decided June 1985. L.Ed.2d 646 Rehearing En Petition for Banc Submitted Last, Alemany 3. argues that his sen- 6, 1985; to En Banc Court Sept. tence prison $10,000 of ten years and a Argued 1985; Oct. fine, although within the statutory limits of Decided Jan. 1986. convicted, crimes which he for was Applications stays pending certiorari de- cannot stand judge because district im- nied Justice Marshall on Feb. posed the sentence mechanistically, without Justice Brennan on Feb. giving individualized consideration 24,1986. mitigating factors his case. The record proceedings at Alemany’s sentencing 7,1986. April Certiorari Denied hearing lo'st, been but the summary has filed a proceedings of these objection

without from the defendant. DePetris,

Ronald E. Asst. Atty., U.S. Brooklyn, (Raymond Dearie, N.Y. J. U.S. Atty., L. Kevin Mary Sheridan and McGow- Davis, N.Y.; Brooklyn, Attys., an Asst. U.S. McDonald, Edward A. Attorney-in-Charge, Dept, Justice, Organized of Crime Force, E.D.N.Y., N.Y.; Brooklyn, Strike Mi- Guadagno, Sp. Atty., chael A. Organized N.Y., Force, Brooklyn, on the Crime Strike States, brief) appellee. for United (John Baker, City H. Mark M. New York Jacobs, brief) City, in- New York on the for tervenor-appellant. Emery Defiere,

Richard and Ann New York City, submitted a for brief New York Union, Civil Liberties amicus curiae. Herman Kaufman and Austin V. Cam- priello, City, New York submitted a brief Ass’n, for New York Criminal Bar amicus curiae.

George Newman, Pa., Philadelphia, H. for Nat. Ass’n of Criminal Defense Law- yers Jersey and New Ass’n of Criminal Lawyers, Defense joint submitted a brief amicus curiae.

Gerald B. Doyle, Lefcourt and John H. III, City, New York for of Ass’n the Bar of York; City of New and Mordecai Ro- senfeld, City, York New for New York County Lawyers Ass’n, joint submitted a brief amicus curiae. FEINBERG, Before Chief Judge, [tv/enty-one named individuals including CAKES, TIMBERS, MESKILL, Anthony NEW Colombo]. MAN, KEARSE, CARDAMONE,PIERCE, These records are include, but WINTER, MINER, PRATT and to, Circuit limited fees, records monies, prop- *

Judges. erty or things other received, value accepted, to or transferred held BAR- RY SLOTNICK or TIMBERS, associate (with Senior Circuit Judge BARRY SLOTNICK on his behalf in OAKES, whom con- MESKILL, NEWMAN, nection with [nine enumerated criminal KEARSE, PIERCE/WINTER, PRATT and proceedings].” MINER, Judges, concur): Circuit jury seeks to determine whether We have before us for en banc reconsid- paid for, Colombo or otherwise arranged eration appeal from an order entered for, legal representation of members October the Eastern District of his crew. Evidence of such benefactor pay- York, New Eugene Nickerson, H. District ments made to might Slotnick establish Co- Judge, which denied a motion to lombo the head of “an enterprise”, as grand jury subpoena duces tecum. that term is defined in the Racketeer Influ- panel A April 1, this Court by enced Corrupt Organizations Act vote, divided reversed the (RICO), 18 1961(4)(1982). U.S.C. § order of the district court and remanded At oral argument before this en banc case further proceedings. court, stated that the sub- poena tecum, For duces although reasons below, set admittedly forth we va- face, on its broad cate the will judgment be limited and opinion specifically panel of the to benefactor payments and we made affirm the Colombo order of the district on behalf of his “crew” court. members. The subpoena, according the government, will not encompass Colombo’spayments to I. FACTS AND PRIOR PROCEEDINGS Slotnick for representation his own in the A jury in the Eastern District past, nor for Colombo’s representation in New York is investigating the activities of connection with other outstanding indict- organized Colombo family Thus, crime and a ments. scope of the subpoena is faction of that enterprise government’s known as limited to the inquiry as to a “Anthony possible Colombo crew”. Under investi- RICO violation. gation are number of offenses, serious Slotnick quash moved to including murder, racketeering, narcotics subpoena pursuant to 17(c), Fed.R.Crim.P. n trafficking, robbery, gambling, extortion, asserting that the had failed to transportation interstate of stolen property of, establish for, relevance or need and other federal crimes. On September 5, information. Judge Nickerson denied the 1984, in connection ongoing with this inves- quash. motion to granted Colombo was tigation, a subpoena duces tecum was intervenor status to appeal. In a 2-1 deci- Barry served Slotnick, on I. attorney for sion, panel of this Court reversed the Colombo, Anthony intervenor-appellant. district court. The subpoena commanded ap- Slotnick Subsequent to panel decision, Colom pear before the grand jury produce: and to bo and members his crew were indicted “any all fees, monies, records of s on charge conspiracy to violate the property things other of value re- laws, narcotics (1982); U.S.C. 846 en § ceived, accepted, transferred or held gaging in a continuing criminal enterprise, BARRY by any SLOTNICK or associate (1982); U.S.C. participating § of BARRY behalf, SLOTNICK his multiple violations the Hobbs and Travel from, on of, account Acts, or on behalf of U.S.C. (1982); §§ * Judges Circuit Kaufman and Altimari have elect- ed participate not to in this en appeal. banc (Freeman), Proceedings Re Grand interstate, 18 property transporting stolen (1 Cir.1983). 708 F.2d Colombo was Grand U.S.C. § jury investigations proceed expedi in connec- must RICO violation indicted for the tiously. length grand jury required seeks the of time for which the tion with subpoena appellate protracted. duc- review often is for in the Fre information called quently indictments will returned be es tecum. appellate process completed, as oc appearance claims that Colombo subpoena curred here. The instant was of his attor- testimony before 5, 1984, September served on Slotnick on Slotnick, represented ney, who has Colom- year ago. more than a lead, years, nearly eighteen will bo disqualification compliance of the Colombo asserts that inevitably, subpoena relationship ac- will chill the attorney. grand jury appearance, A be- Colombo, attorney this tween his and himself and thus cording would undermine relationship of confidence violate his Sixth Amendment to as- long-established Thus, Co- sistance of counsel and his Amend- and Slotnick. between Colombo I^ifth rights. process Amendment ment due there- claims that Sixth Colombo lombo that, that, argues subpoena fore implicated; and absent before this can rights are enforced, of need for must demon- government’s demonstration compelling attorney that the is the strate both a or reasonable need the information and information, regarding for the information the sub- benefactor only source of payments only also and that his is the poena quashed. should Colombo that, he now has been indicted source of that information. Colombo con- claims since charges tends that the traditional standard of rele- and his Sixth on some vance, Liberatore, rights have attached as to see In Re Cir.1978), (2 pro- them, impair- adequate 82-83 is not constitutes an “implicated” right to rights and an tect his counsel. Co- ment of such abuse contends that Fed.R.Crim.P. lombo further grand jury process. 17(c), empowers court to which a district opinion, of this we shall In the balance “compliance subpoena where each of these claims asserted address oppressive”, is would be unreasonable or discuss, first, pre- shall the Colombo. We protection. not sufficient and, second, post-in- the indictment issue below, stated we find For the reasons issue. dictment essential claims referred Colombo’s II. PRE-INDICTMENT ISSUE We decline to to be without merit. above government the the additional impose upon urged

Turning appellant’s claims a need for requirement that it demonstrate court, shall focus upon this en banc we pre-indictmént At the the information. presented the dis questions the first on rights stage, appellant’s Sixth Amendment 1984, i.e., during the trict court in October attached; stage, ab- not nor at have period. question The as to pre-indictment target custodial interrogation of a sent its discre the district court abused whether himself, rights ground- additional are there quash motion to the denying the tion process clauses. The fee ed in the due is not moot. subpoena prior to indictment is government the seeks information which a government must establish the Whether appropriate time to privileged. not information, in addition to its need for the government the interests balance relevance, subpoena served on the before a right is at the to counsel and Colombo’s target of a attorney for an unindieted jury stage. stage, grand not at the pretrial enforced, is investigation can be “capable repetition yet question that is a A. April Special In Re evades review”. See There is no constitutional basis 589, Jury, 1977 Grand 581 F.2d 591 for the requirements imposing additional (7 Cir.), denied, (1978); 439 1046 U.S. cert. 244 to meet grand before the the judicial moment proceedings are initi subpoena can be enforced this case. The against him, ated ‘whether by way of for Sixth require Amendment not pre- does mal charge, preliminary hearing, indict ” liminary showing of need before enforcing ment, information, arraignment.’ Car grand jury subpoena upon served an at- vey LeFevre, v. 19, (2 Cir.1979), 21

torney whose client is target an unindicted denied, cert. 446 (1980), U.S. 921 quoting of a grand jury investigation. Kirby Illinois, supra, v. 689; 406 U.S. see also United Mohabir, v. States 624 The Sixth provides Amendment (2 Cir.1980) F.2d (“[Ajfter prose part that all prosecutions, criminal “[i]n the begun, cution has right to obtain the enjoy accused shall right ... to have assistance of counsel at all stages crucial Assistance of Counsel for his defence.” Const, symbol essential both the reality U.S. amend. VI. At the time the fair trial are to be preserved_”). district court denied Colombo’s We motion to that, further held subpoena, during he had not been indict jury investigation ed. Since Sixth of an rights Amendment target, do not unindicted attach until “the time Sixth adversary Amendment judi to counsel does proceedings cial not attach. Kir initiated”, have been Vasquez, United States v. Illinois, v. (2 F.2d (1972) Cir.1982) (per curiam); see (plurality opinion), Colombo could not also United States Mandujano, as 425 U.S. sert a violation (1976) of his Sixth (plurality opinion; dictum); rights at the time Groban, Re of the district court’s (1957) 352 U.S. ruling. (dictum). Since adversary judicial proceed- ings had not been initiated against Colombo In Kirby, the Court refused to “import at the time of entry district court police into a routine investigation an abso- review, under order his Sixth Amendment lute constitutional guarantee historically to counsel attached, had absent and rationally applicable only the on- after Colombo’s interrogation suspect as a set of prosecutorial formal proceedings.” custody, Arizona, Miranda v. Id. at 690 (emphasis added). The Court His interest in continuing explained that represented to be present initiation of judicial pro- “[t]he criminal was not of constitutional dimensions. ceedings is far from a mere formalism. It is starting point of our sys- Supreme whole that, Court has made clear tem of adversary justice. For it when jury subpoena does not in- only then that fringe upon a constitutionally protected in- committed itself prosecute, only terest, there is no reason require a pre- then that positions adverse liminary showing allowing government and defendant have solidi- government to enforce subpoena. fied. It is then defendant finds Dionisio, United States v. himself faced the prosecutorial with (1973). Since Colombo’s Sixth Amendment organized society, forces and im- right to counsel not attached, there is in the mersed intricacies of substantive no merit to his contention that the Consti- and procedural criminal law. It is this requires any greater tution showing to be point, therefore, that marks the com- made order to enforce grand jury this mencement the prosecutions’ ‘criminal subpoena than to any enforce other. to which explicit alone the guarantees of Throughout his challenge to enforcement the Sixth applicable.” Amendment are of the instant subpoena, has in- Colombo Id. at 689-90. that, sisted even if his Sixth Amendment We have Supreme rights followed the attached, have not his attorney’s ap- holding Court person pearance that comes grand before jury “[a] the will chill his protection under the potential of the sixth and four Sixth rights, that teenth amendment to from relationship counsel the between Colombo and Slot- client; irreparably, incriminate his must undermined nick will be rep- from disqualified will be indict; that Slotnick government go must forward argues that to call resenting He Colombo. indictment; prosecution of the grand jury is to set attorney his before ultimately, attorney must be advised attorney’s forced with- stage for the he will called as a that be trial witness of Professional The Model Code drawal.1 court, against his client. As a we decline Responsibility states: speculate all to that those events will oc- “If, in a undertaking employment after Apparently ignores pos- cur. Colombo litigation, a law- contemplated pending or sibility attorney’s grand that his jury testi- he a or it is obvious that or yer believes may neutral, mony exculpatory be or or a may firm called as lawyer in his be government may that not decide to use client, of his than on behalf witness other trial, information at such that the infor- until representation may he continue may presented mation be at trial in such a testimony is or apparent that his way attorney testifying,2 that the can avoid to his client.” prejudicial rule in limine judge may or that the trial Responsibility of Professional Model Code admissible, per- that the information is not (1979); 5-102(B) Model Rules of Pro- DR haps probative its because force does not Conduct, assum- Rule 3.7. Even fessional resulting justify disqualification a of coun- encompass to ing this rule is intended that Disqualification sel.3 in- testi- testimony as trial as well too argument assumes evitable. mony, Colombo’s adopt what amounts much. We decline to We hold that Colombo’s Sixth Amend- per se testimony of an attor-

to a rule that rights ment will not be violated enforce- jury as to benefactor ney before subpoena. ment of this inevitably disqualifi- payments will lead second constitutional chal- attorney representing Colombo’s that from cation of subpoena vague assertion lenge his client. to the is a attorney testify requiring that his as to disqualification even be con- Before can implicates information somehow testimony must fee templated, attorney’s permit lawyer testify argument Canons of Ethics government, in its before the 1. The court, representing a client in four instances: while realize Mr. Slotnick “[W]e district stated: gave probably if he be conflicted out would testimony “(1) solely testimony If the will relate to an useful." Grand was uncontested matter. upon this statement to bol- Colombo has seized (2) testimony solely to a If the will relate argument disqualification is inev- ster his formality there is no reason to matter interpret this statement itable. We do not evidence will be of- believe that substantial government would as a concession that Slotnick testimony. opposition to the fered in only disqualified. are there numerous Not (3) testimony solely relate to the If the will contingencies counsel, disqualification of involved in legal services rendered nature and value of disqualification issue is not one but the by lawyer or his firm to the client. the case It is an issue to determine. matter, (4) would work a As to if refusal Rules of Professional for the courts. See Model hardship the client because of substantial Conduct, Rule 3.7. lawyer or his firm the distinctive value of particular case.” points Department of as counsel in the Appellant to the also Responsibility, DR suggest Model Code of Professional rea- “[a]l! Guidelines which Justice 101(B). attempts made to obtain infor- sonable shall be 5— issuing from alternative sources mation that this case involves 3.We note relating repre- attorney. client_” peculiar only Colom- one which is That the sentation where, if the infor- in a situation even bo is not hardly subpoenas is such at whim does not issue admissible, a snowball effect was ruled mation government also believes a concession that the entirely. deprive him of retained counsel would showing, heightened a assessed that courts, Badalamenti, See, e.g., States v. United may required before an is 194, (S.D.N.Y.1985) (potential F.Supp. 197-98 jury. grand appear called to provi- attorney’s fees under forfeiture loss of retaining any problem presents example, of RICO possible, to introduce sions lawyer). 2. It for Moreover, stipulation. a the evidence Fifth process rights. Amendment meaning due The applicable entirely different claim is changed without merit. circumstances.” Id. at 922. In States v. Flanagan, United We hold that the Fifth Amendment (3 Cir.1982), rev’d on require does not preliminary showing a (1984), grounds, other 465 U.S. 259 prior need to enforcement of a court indicated that a defendant’s decision subpoena served on for an counsel unindict- particular select a attorney is afforded ed target grand jury investigation. protection by some the Sixth Amendment process provides The due greater clause no process the due clause of the Fifth opportunity for Colombo to halt the Amendment, citing Stamler, Davis v. jury investigation than does the Sixth (3 Cir.1981). F.2d 479-80 Without Amendment. Amendment, reference to the Fifth court in Davis v. Stamler stated that right Sixth Amendment to as right to counsel of one’s choice “[t]he also sistance of counsel “of such a character process clause”, derives from the due id. at that it cannot violating be denied without 480, citing United ex rel. Carey States v. principles those liberty ‘fundamental Rundle, (3 Cir.1969), 409 F.2d 1210 cert. justice which lie at the base of all our civil denied, (1970). U.S. 946 Carey held ”, political institutions’ Powell v. Ala that the Sixth and Fourteenth Amendments bama, (1932), quoting He require that an accused be afforded a fair Louisiana, (1926), bert v. opportunity reasonable to obtain coun and therefore necessarily is included in the sel of his choice. Id. 1215. Pre concept process of due of law. Powell v. sumably, the court Davis v. Stamler Alabama, supra; Wainwright, Gideon also was referring process to the due 372 U.S. 335 Powell v. Alabama clause of the Fourteenth Amendment since Wainwright and Gideon v. made the Sixth that case involved state a criminal defend right Amendment applicable ant, and the Carey court cited support as through process states the due clause This, however, for its statement. leaves of the Fourteenth Amendment. While vio United States v. Flanagan with no sup lations of an accused’s counsel are port proposition for its that process the due encompassed concept within pro of due clause of the protects Amendment Fifth cess, process the due clauses neither ex defendant’s decision to retain particular pand nor contract protec the constitutional counsel. simply The cases do not support provided tion by the Sixth Amendment proposition process Colombo’sdue right to counsel. rights under the Fifth Amendment are A close examination of the cases dis- expansive more protection than the which closes that even if there were no Sixth the Sixth Amendment affords and there Amendment, historically the Fifth Amend- fore require greater would showing be process ment due protect clause would fore the can enforce the sub right. Oakes, Proper See Role poena. Even the Third Circuit cases cited Federal in Enforcing Courts the Bill above which do indicate that a defendant’s Rights, 54 N.Y.U. L. Rev. 919-23 particular decision to select a attorney is (1979): protection afforded by the Fifth as well as by the Sixth suggest Amendment do not interrelationship “The of the enumerat- that the Fifth protects rights de significant ed rea- several fendant’s to counsel more in either a sons. The Bill cannot be construed qualitative quantitative or a sense than

merely taxonomically, as pigeon- a set of does the Sixth. preconceived holes or rules into which a given factual does or situation does not fit. Rather it must be viewed Wehold that there is no merit in

whole; it is an interlocking complex of argument Colombo’s that calling an attor principles basic of fairness and ney individual for an grand jury target unindicted entitlement continuing carries a testify before the will violate

247 a criminal head of ed for his activities as on con- Whether rights. his constitutional enterprise. to our fed- pursuant grounds, stitutional im- power,4 we decline supervisory eral that, ab consistently have held We need before showing of an additional pose circumstances, identity special client sent enforced be jury subpoena can grand the privileged. are not fee and of this case. the circumstances under Shargel, In Re E.g., F.2d 62 742 States, v. United Colton (2 Cir.1984); 306 denied, cert. (2 Cir.1962), 637-38 F.2d B. Pape, v. United States (1963); 371 U.S. any con of the absence Aside from denied, cert. (2 Cir.), 144 F.2d position, for Colombo’s basis stitutional also United States See (1944). privi law statutory or common is no there Hodge Zweig, (9 & F.2d 1354 Cir. the which the information protecting lege attorneys 1977). goal enabling “The of disclosed. to have grand jury seeks advice and professional to offer informed infor it the that seeks states accomplished courts cannot be advocacy identity as and fees client regarding mation of communications compel disclosure and Co enterprise necessary attorney evidence the client and between enterprise. In Re head of that position as lombo’s of such services.” provision supra, 742 F.2d at that Shargel, that evidence claims 63. But where “benefactor”, or oth paid for and Colombo, not confidential is the communication legal representation legal necessary to obtain informed for arranged erwise client, enterprise privilege exists. no this criminal for the of advice for members States, v. United Fisher during the course apprehended who were an attor consultation with to de While activity would be relevant illegal of fee, may neces- a payment of ney, and indict- Colombo should whether termine question the Court in the mind of a reasoning In Re of serious in on the 4. Colombo relies opinion (Leon the Harvey), correctness as to the of Jury D. as a whole No. 81-1 Special Grand Cir.), majority.” (4 panel emanating and withdrawn vacated the from 676 F.2d 1005 a target became jury he concluded that grand op. indicted and court Slip at 4. The when (en banc), (4 Cir.1982) ‘nearly fugitive, Harvey F.2d 112 make it facts of "Since the subpoena "drive will proposition ..., that such a causing the toit [to identical’ Morchower\ client and the wedge and between the a question' Morchow- precise in present [as 'the destroyed,” id. at relationship will be the ..., concluded that since we have and er] courts, supervisory under their pre- better chance Harvey has the dissent We note prevent such abuses. powers, should reasoning vailing, apply we advanced any precedential val- longer Harvey no Subsequent to Fourth Circuit. even in ue Harvey, Affirm.” Circuit, unpublished the Fourth Murnaghan Judge was also Slip op. at 4-5. Murnaghan, States v. by Judge United opinion Morchower, Harvey. he stated There dissent in author of the 28, 1983), (4 Sept. Cir. No. 83-1816 precedential of Har- value explained lack of to sub- free should be "... vey: generalized a preliminarily, on poena without Harvey case precedential value "The basis, justify the relevance being required to however, eliminated, majority of a when was necessity of its action.” regular service judges active circuit omitted). (footnote Id., at 1012 rehearing See 28 U.S.C. en banc. ordered any precedential val- With the elimination 35(a). 46(c), the established Under FRAP § Harvey, the decision in Circuit ue of the Fourth Court, consequence, the as a practice of the fatally case is the instant position of Colombo automatically vacated. was panel decision authority longer no undermined. There Furthermore, Harvey D. fact that Leon support of point in can (b) he interim, which (a) whatsoever had, been indicted in the powers supervisory upon the justice an order his reliance fugitive led to from become jury pro- Spe- appeals federal panel opinions. In re over withdrawing court (Leon government, Harvey), justify requiring ceedings 81-1 D. cial Grand Cir.1982).” upon (4th enforcing served prior F.2d 112 explained Slip op. target The court at 3. further that aof for an unindicted counsel investigation, rehearing [in en banc granting of "... need. establish presence Harvey demonstration ] was sary advice, legal to obtain their disclosure grand jury, if stop grand not the does not the ordinary inhibit jury communica- “dead in its tracks”. See In the Mat- tion necessary attorney for Klein, an to act effec- (7 ter Cir.1985). 776 F.2d 628 To of tively, justly, expeditiously. and For create this new obtaining standards for fee in- reason, special absent circumstances not grand formation at the jury stage risks present here, disclosure of fee unacceptable information interruption of grand jury the and identity client privileged is not process even probing inevitable into what though might io incriminate the client. grand In information the jury already has in Re Shargel, supra, 742 F.2d at 63. order Fee to determine heightened whether a may sought information be as evidence “need” of standard been met. To allow a unexplained may wealth grand which jury target been challenge the subpoe- derived from activity, and informa- na on the basis of a “need” requirement tion that paid by fees were either seriously other would jeopardize the secrecy of clients or may third persons sought be proceeding the grand and the jury’s investi- to determine identity gative benefactor. functions. rule, Id. at 63-64. As a general specif- The long courts have recognized

ically case, in this such information is not importance expeditious of protected from disclosure attorney- proceedings. “The jury is an inte privilege.5 client gral part of our constitutional heritage Moreover, which brought was country the time a to this benefactor offers an common attorney payment law.” legal Manduja United States v. no, representation others, supra, of 425 U.S. at 571. Historically, attorney should has been be aware fee viewed “a guarantee that information is basic of and, privileged indeed, liberty”, individual explain should and it “continues client function potential that a as a conflict barrier to reckless or arise. un potential charges.” Aware of the founded jury pro conflict at this ini Id. Grand stage ceedings tial communication, only serve not the investigative attorney and client function of determining later should not be heard whether an indict ment complain returned, should that pay pro disclosure of benefactor but also the might ments tective chill function securing persons their relationship of “against trust. arbitrary This is a self-imposed problem oppressive action, very insuring that well could have been avoided.6 serious criminal accusations

will brought only upon the considered judgment of a representative body of citi C. acting zens under judicial oath and under impose To requirements additional guidance.” instruction and Id. its need for the show infor- sought mation attorney is the The investigative powers of the only source for that grand jury necessarily would are broad so that it hamper severely investigative may carry function adequately out its task of deter- Note, 5. But see 5-107(A), 5-21, party. third DR EC 5-22. Benefactor Defense Before Jury: Legal Grand Advice and Accepting payment Incrimination of clients’ fees from a third Attorney-Client Privilege, Theories 6 Car party may subject to undesirable (1985) (suggesting dozo L.Rev. 537 that benefac influence, particularly outside where the attor identity arrangements tor privileged); and fee should be ney representing matters, clients in criminal generally Developments and see In Conduct, Model 1.7, Rules Professional Rule Privileged Communications, 98 Harv. Law — party and the third is the head of a criminal 1451, 1501-09, 1514-24, L.Rev. (1985). 1522 & n. 124 enterprise of which the clients are members. situation, question such a an ethical arises as to attorney’s loyalties whether the are with the 6. accepted If in fact pay- Slotnick benefactor Judd, payor. client or the ments, See Inter he warning should have heeded the Conflicts of Notes, Judge’s est — A Trial 44 Fordham the Model L.Rev. Code of Professional Responsibility 1097, 1099-1101, against accepting n. 41 payment of clients' fees from activity “Any holding mining existence of criminal that would saddle a preliminary with minitrials -and returning well-founded indictments. showings assuredly impede would in- its Hayes, 408 U.S. Branzburg v. vestigation publics and frustrate the in- grand to is authorized expeditious terest in the fair and admin- pro- subpoena require and to the witnesses istration of the criminal grand laws. The duction of evidence. jury may always not serve its historic grand jury “Although powers the of the protective as a standing role bulwark subject and are not unlimited are solidly ordinary between the citizen and supervision judge, longstanding the prosecutor, an over-zealous if but it is public principle that ‘the ... has a approach proper performance even to the evidence,’ every except for to man’s mission, of its constitutional it must be . persons protected by a constitu- those pursue investigations free to its unhin- common-law, tional, statutory privi- or dered external supervi- influence or applicable grand to lege, particularly is long sion so as it upon does not trench proceedings.” jury legitimate rights any the witness omitted). (citations Every per- Id. at 688 called it.” before govern- jurisdiction of the son the within Dionisio, supra, United States v. 410 U.S. give obligation appear to and ment has an (citations omitted). Where, 17-18 at grand jury. evidence the Unit- before here, attorney-witness neither an nor a Dionisio, 410 U.S. at supra, v. ed States client-intervenor raises a valid constitution 9-10. statutory privilege, al claim or “there is no jury’s investigation “A is grand require preliminary more reason to a show every until available fully not carried out ing ... than there would be the case clue has run down and all witnesses been who, despite any witness the lack of if every proper way to find examined statutory privilege, constitutional or de crime has been committed....” United question comply to or clined with answer (2 Stone, 140 Cir. v. States grand request.” 16. jury Id. at Such 1970). func part grand jury’s It is of the grand jury proceedings interference with against arbitrary protecting persons tion of justified by the Constitution or case persons action to call it or unfair before Moreover, Supreme the Court has law. suspected activity “persons and of criminal disapproval delays caused noted with may suspected of no misconduct but who government to make a by requiring the provide to links in a chain of evi be able need, and unavaila preliminary relating criminal conduct of oth dence sources, en bility other before can Mandujano, v. su ers”. United States subpoena. at 17 force a Id. entirely appro 425 U.S. at 573. “It is pra, n. 16. in priate summon imperative —indeed —to in- rights constitutional are Even where to illuminate the dividuals who be able volved, reluc- Supreme Court been shadowy corruption precincts exemptions to tant to create constitutional Attorneys exempted crime.” are not Id. duty appear grand jury before duty appear from this this investi information, require or to relevant furnish gative body. showings preliminary to be made before claiming infringement of their an persons complied requirement A to be new rights compelled can be constitutional may en before it supra, Branzburg Hayes, v. testify. E.g., upon served force a at 708. justified only an can be sensitive the need We are sought protected by a consti unnecessary dis arbitrary tutional, law, privi prevent an statutory common hold, attorney. We qualification of supra, 408 lege. Branzburg Hayes, v. See however, competing in- potentially that the U.S. at 688. concerning disqualification terests at stake As a result of the indictment on pretrial should be at stage, examined counts, the non-RICO Colombo’s Sixth not the jury stage. court, A district rights Amendment have attached. Kirby pretrial stage, weigh can public Illinois, supra, U.S. at 688. Colom probative interests —the value of the law argues that, bo since some pro yer’s testimony, preserve need to ethi ceedings against him begun, his Sixth cal legal standards profession rights require now integrity judicial system— government show a compelling need for against the accused’s to counsel of payments benefactor information in or his choice. Our today decision pre- on the der to subpoena. enforce the We disagree. supported indictment issue is by other Although an indictment has been re- courts which have examined that issue. In turned, the fee information which the Klein, the Matter supra, (rejecting im government seeks still protected not is requirement of “need” position call before any privilege. Shargel, In Re supra, 742 ing attorney testify grand jury); F.2d at 62. (Weiner), In Re Grand Proceedings 154, (6 754 Cir.1985) (“Precedent F.2d support does not Doe’s assertion that the respect With to Colombo’s con government must amake of need post-indictment stitutional claims in the in order subpoena to direct a to an attor context, the Sixth Amendment assures him ney.”); In Re Grand Jury Proceedings the right unduly to be free of burdensome (Freeman), 1571, (11 708 F.2d Cir. interruption of his prepara trial counsel’s 1983) (rejecting grand limitation jury tion protects and him from unneces

power which requirement “need” would sary arbitrary disqualification or of his pose).7 counsel. Assessment of whether the sub poena burdensome, is unreasonable or es III. pecially POST-INDICTMENT sought when ISSUE to be enforced against defendant, counsel for an indicted Having held that there is no constitution- can be determined under the standards of statutory al or privi- common law 17(c), Rule informed Sixth Amendment lege upon rely which Colombo can to im- considerations. The risk disqualification pose requirement a “need” govern- on the remain for should determination at an in pre-indictment ment at the stage, we turn hearing by limine the trial who must judge to the subsequent effect his indictment weigh probative value of the informa on the non-RICO counts. After the district government tion against seeks the loss court’s denial of Colombo’s motion to of counsel of the accused’s choice. subpoena upon served filing panel after the of the opinion of our

Court, to retain 22, counsel of April Colombo was indicted on choice, however, one’s 1985 on several counts other than is absolute. It give way required RICO “must when violation.8 It in connection the fair is the RICO and proper justice.” violation administration of relating Ostrer, seeks 337, to benefactor United States v. 597 F.2d payments. (2 Cir.1979). involuntary While disqualifi- Supreme 7. The Judicial including attorneys, Court of Massachusetts op- from "unreasonable or approach pressive” has taken a grand different to this issue. jury proceedings, abuses of L.J., Lawyer Subpoenas, New Rule Set on Nat’l the traditional standard of relevance of the in- 4, 1985, Nov. 42. October 1985 that sought, Liberatore, formation In Re 574 F.2d adopted disciplinary court newa which rule (2 Cir.1978), provide 82-83 sufficient safe- "unprofessional prose- makes it conduct” guards. cutor to issue a attorney to a defense obtaining prior judicial ap- without 8. See Colombo, United Anthony States v. 777 F.2d proval. We that in the believe federal courts (2 Cir.1985). 17(c), witnesses, Fed.R.Crim.P. which shields all may prevent an accused to members of a cation of counsel crime “crew”. In the choice, retaining case, courts from counsel of his instant evidence of pay- benefactor duty disqualify power have the clearly ments is relevant public counsel where the interest main jury's investigation of the Colombo crime taining- integrity judicial system family. sought The information highly outweighs constitutional the accused’s probative of the role of Colomboas head of right. defendants have been con Criminal “enterprise”, as that term is defined other coun stitutionally required to retain RICO. 18 U.S.C. Al- §§ highest preserve need to sel when “the though subject sub- responsi professional ethical standards poena engaged representation of Co- constitu bility” outweighs the accused’s present lombo in connection with the indict- Cunning right, tional States v. United ment, imminent, trial is not and there is no Cir.1982), ham, (2 cert. 672 F.2d anticipate reason to appear- that Slotnick’s denied, (1984), 466 U.S. 951 and “where the ance at the for a inquiry limited gives inability of retained counsel to serve time-consuming. will Applying the stan- delay promise of unreasonable or inconve 17(c), finding dards of Rule the infor- trial”. completing nience United mation highly which the seeks Cicale, (2 States v. Cir. probative violation, of a RICO we hold that 1982), denied, (1983), cert. 460 U.S. 1082 in this ease Colombo’s Sixth Amendment Bentvena, quoting United States outweigh grand jury’s interests do not the (2 Cir.1963). F.2d need for this information. 17(e) adequately Having held that Rule from unreasonable or protects the accused also contends that the Colombo counsel, upon oppressive demands we government’s to indict him failure for a the ease to the district court could return RICO violation constitutes an abuse of 17(c)claim in for determination of the Rule grand jury process, apparently on the theo light that an indictment has of the fact ry government, by holding that the back rights Amendment been returned Sixth violation, endeavoring the RICO to use However, since the record have attached. subpoena prepare for trial on the comprehensive and we are before us is counts in the indictment. There is no evi sufficiently informed to examine these support this claim. dence in the record interests, competing there is no need to sought the informa government The delays by remanding this is- cause further question for more than fifteen tion court. sue to the district months, long indictment. We do before the govern agree with that the Colombo 5, 1984, September more Since seeking information to bolster ment is this year ago, government has been than a present material on the indictment. its trial Slotnick, seeking from the at information Subpoena Jury Duces In Re Grand subpoena case. The torney involved this Cf. (Simels), January Tecum Dated relating information duces tecum seeks (2 Cir.1985) subpoe (timing of 767 F.2d 26 legal represen payments for the Colombo’s indictment, na, suggested first issued after recognize in In Re others. As we tation of purpose its was to obtain trial materi that 742 F.2d at where we Shargel, supra, al). delays caused the It was Colombowho privilege a testimonial declined to create moving quash the litigation by in this identity, de for fee information and client appealing from the district nying grand jury access to this denying order the motion court’s unnecessary but considera “would create government faced subpoena. The was temptations lawyers to use as conduits ble running limitations with the statute of necessary commodities of information or of government The was enti some violations. schemes or as launderers to criminal counts and indict Colombo on those Moreover, legal rep tled to money.” payment for completion may compensation a form of await resentation investigation considering before whether to government absent a showing of need. indict him for RICO violations. However, I add a few additional observa- tions, and, due primarily to the change in IV. circumstances since panel decision, I

To summarize: reach decision a somewhat different route. pre-indictment context, Colombo has failed to establish constitu- 1. Assuming appeal this is not moot or rights tional or common law statutory posture so changed require as to re privileges require to dem- mand, an issue below, discussed I believe onstrate a need for information relating to that the district court should quashed benefactor payments. Such requirement the subpoena for the reasons stated by unjustifiably would impede the grand jury panel majority in In re Jury Grand Sub process. pretrial stage, The grand not the poena Doe, Served on Esq., John jury stage, the appropriate time to bal- (2d Cir.1985). panel majority as ance Colombo’s interest in his sumed that Sixth Amendment concerns against the public interest ob- came play into because the taining payment information, benefactor Barry conceded that Slotnick, counsel for disqualification should issue of arise. target of the grand jury’s investigation subsequent indictment of Colombo (Anthony Colombo), would disqualified on non-RICO counts requir- is not a bar to if he testified jury. ing testify Slotnick to before the F.2d at 970. Government counsel told the jury as to payments. benefactor We hold judge: district realize Mr. Slotnick “[W]e probative value of this informa- would probably be conflicted gave out if he tion—information which establish Co- testimony to the Grand that was use lombo head of a RICO enterprise will_” —out- ful. I think he probably weighs the Sixth rights which The in banc majority, in its footnote he And, asserts. as pre-indict- with the “interpret refuses to this statement of the claim, ment the possibility of disqualifica- government as a concession that Slotnick tion is not a basis declining for to enforce disqualified.” would be I believe that the subpoena; the it is an issue the trial statement is such that, a concession and in judge disqualification should arise. We any event, “probable” disqualification is find no evidence support to Colombo’s enough bring to the Sixth Amendment into claim that government’s the decision not to play. Furthermore, now that Colombo has seek indictment of him for RICO violations been offenses, on indicted related it is obvi at the time of the return of the indictment ous Sixth Amendment considerations on the non-RICO counts constitutes an now apply, as the in banc majority opinion grand of jury process. abuse the in concedes Part III of the opinion. There judgment We the vacate opinion and of fore, I do not question address the of what panel 1, the entered April 1985 and we the be, rule should in the absence of the the order of the district court en- government’s affirm subsequent concession the tered October 1984. indictment, question since that was not be fore the district us; court and is not before

FEINBERG, Judge (dissenting): Chief were, if it I persuasive argu believe a I respectfully dissent from the ment decision could be quashing made for the sub affirm the district poena court’s denying order upon based the supervisory court’s the motion the subpoe- power, Jacobs, United States v. to attorney na agree (2d Slotnick. I Cir.), vacated, the 87 429 U.S. 97 S.Ct. conclusion reached majority in the 50 (1976), L.Ed.2d remand, panel decision, by Judge (2d Cardamone in Cir.1976), F.2d 772 dismissed, cert. dissenting opinion his in this rehearing 98 S.Ct. 56 L.Ed.2d 53 banc, that quashed Indeed, should be contemplated situation in foot- Branzburg (work (1947) product). ob- See also majority opinion, where note pro- attorney’s testimony 665, 709-10, Hayes, v. would taining an 408 U.S. S.Ct. deprive a effect” (1972) (Pow- duce a “snowball 2646, 2670-71, 33 L.Ed.2d 626 counsel, would any retained defendant (media). ell, J., concurring) It seems obvi- super- an call for such exercise seem to Amendment ous that a defendant’s Sixth visory power. protection less than a right is to no entitled The issue that is before us involves newspaper reporter’s First Amendment 2. Sixth Colombo’s obvious between product. clash attorney’s work or an representation Amendment case, impor- although it claims that an this principle that choice and the of his investigation being tant is ham- give duty to exempt from the no is one attempt made no pered, jury so that it can evidence before panel down satisfy the test laid wide-ranging investigation of conduct contrary, appears it now majority. To the ques- activity. On this difficult necessary that Slotnick’s evidence analysis tion, panel’s was fundamental- indict; grand jury to in its enable the brief protect recognized the need to ly It sound. govern- argument, at oral to us and unduly rights while not Sixth indicates the information is ment investigative grand jury’s on the infringing corroborating sought purpose for the by the compromise reached function. testimony evidence useful at obtain required It majority was sensible. panel trial. ad- to make —in however, needs the fundamentally, to mere relevance —that More dition Indeed, Judge Cardamone majority opinion evidence. trivializes Sixth banc dissenting opinion, in his banc points out repeating It bears Amendment concerns. agrees that this government apparently before us is a law- that “while the witness Depart- appropriate standard. is an belong to interests at stake yer, the crucial to the attached ment Justice Guidelines Terkeltoub, community.” In re the whole us state brief to government’s end of (S.D.N.Y.1966). It F.Supp. shall be attempts reasonable that “[a]ll lawyer under sub- simply the society, not “ alterna- made to obtain from client, that ‘would poena or his indicted issuing subpoena to tive sources impair- practice consequences’ feel the relating representation representation of lawyer’s effective ing the (emphasis supplied), of a client....” Id., Hick- part from quoting client.” forth- shall be provide that authorization 515, 67 Taylor, supra, man Attorney Gener- the Assistant coming from Yet, J., concurring). (Jackson, at 395 S.Ct. there are “reasonable only al where govern- the majority’s analysis, the under that ... the information grounds to believe any required to show “need” is not ment reasonably needed for the suc- sought is is sought except that it the information for investigation or the completion of cessful Majority op. “highly probative.” p. 251. subpoena not be must prosecution. words, latter determina- once the In other speculative peripheral or to obtain used carries made, Amendment the Sixth tion is supplied). (emphasis information.” context, However, in this weight at all. no is not government The burden on the concerns conceded- when Sixth Amendment us, unusual; is a remind there as amici probative value “the ly apply and seeking informa- party on a similar burden “against weighed sought is information” to mem- through subpoenas directed tion choice,” the accused’s of counsel of the loss cases media and civil the news bers of 250, should id. at attorney’s work discovery of involving evidence, unprivileged, if show that v. States See, United e.g., product. elsewhere, can be be cannot obtained Cir.1983) (me- Burke, (2d 700 F.2d difficulty, not sim- only great obtained Taylor, Hickman dia); “highly probative.” 393-94, ply that evidence L.Ed. 451 510-12, S.Ct. require To less erodes Sixth CARDAMONE, Judge, Circuit dissent- protections. ing: government’s attack on right majority The in banc also dismisses Sixth counsel of one’s own choice in this case ground Amendment concerns on the goes too far. Hypothesizing perhaps imminent,” “trial is not majority op. p. guilty some organized members of crime relying sug- doubtless on its earlier justice evade because of their lawyers’ as- gestion problem that the disqualification of tuteness, the government attempts justi- can be worked out at hearing a closer to fy grounds of expediency subpoe- —on — majority pays little, trial. The any, at- naing defense counsel jury. a tention to impact the immediate on the We balance here the aim of law enforce- attorney-client relationship having of an in- ment present officials to evidence before a dicted testify defendant’s counsel before a grand jury against suspect grand jury against will, beyond his assert- target this case an unsavory fig- Mafia —in ing appearance that the will not be “time- ure—to have the choice consuming.” Obviously, Id. the uncer- represent him our judicial adversary sys- tainty as to whether his chosen counsel will tem. At is not issue whether govern- eventually be removed will affect both a may ment lawyer, but whether counsel, defendant’s readiness to upon rely prosecutor must first a need show for see In Special re Grand No. 81-1 lawyer’s testimony subpoenas before it (Harvey), (4th 676 F.2d 1009 & n.4 forge him. To ahead without Cir.), vacated and withdrawn when may need society rid criminals, yet some target indicted and he fugi- greater became concern the fact that when the tive, (4th 697 F.2d 112 Cir.1982) (in banc), deems it sufficiently expedi- ent, perhaps rights and counsel’s ability own other prepare for —established trial, long hard-fought legal since the subpoena now will divert coun- battles — jeopardized. Further, not requiring sel’s energy attention at a time when demonstration of need will permanently he should focusing solely preparing damage attorney-client relationship and for trial. See In re Matters, Grand Jury produce the net gained same result as that (1st Cir.1984). 18-19 The fail- by throwing baby out with the bath ure of majority the in banc opinion to dis- water. cuss these adequately considerations Because requiring makes slight clear how defense weight ap- counsel to it accords pear before the any without rights Sixth Amendment in the ostensi- showing of violates the need Sixth Amend- weighing ble process. ment to counsel in this case and the Finally, 3. changed situation has so Fifth Amendment Due Clause Process (and much since the district then court cases, all I respectfully dissent. Addition- ruled, panel) that the case should be re- ally, regardless constitutional con- manded to the district court for reconsider- siderations, practical applying reasons ation. pending view of the indictments specifically case, to this I believe the dis- on related against Colombo, offenses can trict court abused its in not discretion say we with assurance district quashing this subpoena supervi- under its judge would still refuse to quash the sub- sory powers 17(c). under Fed.R.Crim.P. poena? I do not think can; that we more- over, as Judge out, Cardamone points CONSTITUTIONAL ARGUMENTS properly issue is for the judge. district Before beginning analysis of the Sixth sense, this I original- believe the issue and context, Fifth Amendments this it is ly presented appeal has become moot help of to discuss the historical function that, any event, and the case should be power and jury. of body’s That remanded ruling by for a judge. the district importance investiga- and breadth of its

255 deeply ingrained in powers necessary tive are our whenever to meaning assure a Mandujano, Wade, v. defense, United States see United v. history. 425 ful States 388 564, 571, 1768, 1773, 218, 225, 1926, 48 1931, U.S. 96 S.Ct. U.S. 87 S.Ct. 18 (1976). (1967), L.Ed.2d 212 The Fifth Amendment guaran L.Ed.2d 1149 scope its guarantees person shall be held right represent tees a defendant “[n]o capital, to answer for a infa otherwise ed counsel of his own choice. “It crime, presentment or in mous unless on that, hardly necessary say right Jury_” ju dictment of a Grand Grand conceded, being counsel a defendant should They ries serve a dual function. act as opportunity be afforded a fair to secure investigators weighing sufficiency of Powell, counsel of his own choice.” 287 required indictment and evidence for an 53, 58; United States v. U.S. at 63 S.Ct. protecting guardians public it Curcio, 14, (2d Cir.1982); 694 F.2d 22-23 against arbitrary oppressive govern Flanagan, United States v. 1072, 679 F.2d accomplish investiga ment action. To its (3d Cir.1982), grounds, rev’d on other 1075 function, grand jury giv tive been 269, 104 1051, 465 U.S. S.Ct. L.Ed.2d 79 288 compel production power en broad (1984). right The to counsel of one’s choice v. United States “every evidence”. man’s is of constitutional “part dimension and is Dionisio, 1, 9-10, 764, 410 93 U.S. S.Ct. parcel right” to assistance of 769, (1973); Branzburg see 35 L.Ed.2d 67 expressly guaranteed. Curcio, counsel 694 665, 682, Hayes, 408 v. 92 S.Ct. U.S. F.2d at 26. But, (1972). L.Ed.2d 626 its broad 33 right is not absolute. It does not power is not limitless. It not obtain judicial attach until proceedings adversarial privilege evidence in violation of a valid against defendant, are commenced either Constitution, established under the statute by way charge, a formal preliminary United States v. Calan law or common indictment, information, hearing, or ar- dra, 613, 619, 338, 346, 414 94 S.Ct. 38 U.S. Williams, Brewer v. raignment. 430 U.S. (1974). L.Ed.2d 561 When a 387, 398, 1232, 1239, 97 S.Ct. 51 L.Ed.2d infringes upon either a constitu (1977). person The fact that a is the tionally protected interest or a valid com subject grand jury investigation is not privilege, mon law a reason to re exists trigger sufficient his Sixth Amendment quire preliminary showing of need. Illinois, Kirby v. right to counsel. 92 S.Ct. 32 L.Ed.2d I AMENDMENT SIXTH Vasquez, v. (1972); United States Governing Law Sixth Amendment A. curiam). (2d Cir.1982) (per Yet it Right to Counsel prohibits arbitrary disqualification or attorney, a defendant's chosen dismissal of right The Sixth Amendment to counsel opportuni- that defendant a fair allows judicial sys- has been a cornerstone of our Flana- choice. ty to secure counsel his adoption tem since before the of the federal Stamler, v. 1075; gan, Davis F.2d at See Rights. Constitution and the Bill of (3d Cir.1981); United States Alabama, 650 F.2d 477 45, 61-64, Powell v. 287 U.S. Dolan, (3d Cir.1978). A 570 F.2d 1177 55, 61-62, S.Ct. 77 L.Ed. 158 to choose own defendant’s impor- is of to counsel such critical unnecessarily. See may not be obstructed process adversary tance to our that it can- Davis, F.2d at 479. violating denied without those fun- form the base damental liberties which Indictment on Id. at B. political

our civil and institutions. Defendant’s Effect of Related Charges Right to his (quoting Hebert v. Loui- 53 S.Ct. at 63 siana, 103, 104, Charges all 312, 316, Counsel on S.Ct. (1926)).

71 L.Ed. 270 intervening indictment on the Colombo’s attached, charges, subsequent pan- right a de- non-RICO Provided has decision, right Sixth Amend- protected by fendant is to counsel el’s has caused his right attach, ment to counsel now against to Kirby, them. Colson police, went to the 689-90, at 406 U.S. 92 S.Ct. at and confessed charge, to the theft agreed and right may that not be obstructed arbitrari testify against to defendant and act aas ly. When defense counsel is served with a government police informant. indicted, after his has been client equipped Colson with a wire transmitter to government showing must amake record meeting defendant, his next with at justify need that will the intrusion on the which defendant made several incrimina- attorney-client relationship. In United ting statements. suppressed The Court Schwartzbaum, States v. 253 statements as made violation of defend- (2d Cir.1975), denied, cert. right ant’s Sixth Amendment to counsel. (1976), S.Ct. L.Ed.2d 348 we held It held that the right Sixth Amendment to government’s that to call the counsel as a rely on counsel as a “medium” between justified only trial witness can by government defendant and the was violat- compelling legitimate and need. by ed knowing exploitation the state’s of an Supreme just has recently Court opportunity to confront the accused with- principle reasserted this in Maine v. Moul being out counsel present. The incrimina- —ton, —, 106 S.Ct. 88 ting statements not could be used in a trial (1985), by holding L.Ed.2d 481 that once theft, for auto because defendant had been right an accused’s to counsel has attached charges indicted on those when the state- crime, right for one cannot be violated made, ments were right and his to counsel even if the investigating already had attached. separate crime. To allow In seeking pertaining pend- evidence to to do otherwise would cause a dilution of ing charges, however, the Government’s protections guaranteed by the Sixth investigative powers by are limited by limiting Amendment their scope. rights Sixth Amendment of the accused. right Once the attached To allow the admission of evidence ob- asserted, and been the state must of tained from the accused in violation of (footnote omitted). course honor it This rights his Sixth Amendment whenever means simply more than that the state police alternative, assert legit- an prevent cannot the accused from obtain- imate reason for their surveillance in- ing the assistance of counsel. The Sixth vites abuse person- law enforcement imposes Amendment also on the State an nel in the form of investiga- fabricated obligation respect affirmative pre- tions and risks the evisceration of the serve the accused’s to seek choice this Sixth recognized Amendment assistance. We have several occa- Massiah_ Consequently, incrimina- been upon clarify sions called ting- pertaining statements pending scope obligation of the State’s in this charges are inadmissible at the trial regard, that, and have clear at made charges, those notwithstanding the fact least, very prosecutor police police investigating were also obligation not to affirmative crimes, if, other in obtaining this evi- act in a manner that circumvents and dence, the state violated the Sixth thereby protection dilutes the afforded by knowingly circumventing to counsel. the accused’s right to the assistance of at —, (em Id. at S.Ct. 484-85. counsel. added). phasis —, Id. at S.Ct. 489. In Moulton the defendant had been charged The incriminating statements automobile theft. He made re- lawyer tained a defendant could admitted in pleaded guilty. a subse- co-defendant, quent Defendant met with his trial suggestion on his Col- murder son, allegedly suggested witness, charge Colson that State’s since was not the two kill the primary pending State’s witness made, when the statements were

257 right government may therefore had no to the have and defendant had an alterna- offense. tive, counsel as to an unindicted Id. legitimate reason for following through waiting with the has now been indicted for four Colombo charge. indict Colombo on the RICO He has not been indicted related offenses. charge, on the RICO which is also related majority The avoids this Sixth Amend- rights crime. Amendment His Sixth by governmental finding ment issue itself regard pend- to the therefore attached with need for fee attorney information from attorney ing charges. If Slotnick is sub- balancing against it Slotnick the de- showing of need and poenaed without a right counsel, though fendant’s even subsequently disqualified, plain as a matter government did showing not make this be- sense, disqualified he will be of common which, therefore, fore the district court representing pur- his client for all from finding made no on the issue of need. The poses, including those for which offenses district court subpoe- refused this Thus, already he has been indicted. since indicted, na because Colombohad not been Sixth Amendment defendant Colombo’s judge and the district believed defendant regard rights to counsel have attached with governmental was not entitled to a show- pending charges, govern- to the four ing need. Now that an indictment has subpoenaing lawyer on ment’s action returned, been a need plainly charge deprive will him of his a related required. It is not the role of any court to him for those represent choice of counsel to finding make a factual outweighing need any showing of indicted offenses without significant Sixth Amendment interests un- way In this defendant’s Sixth need. til the meets its burden unconstitutionally rights are placing proof into evidence some of need. government’s diluted actions. And, plainly appellate it is not an court’s subpoe states that the function in case these factual make na not served on Slotnick to was findings. majority view violates Co- for trial on the related secure evidence rights Sixth Amendment in this lombo’s and, charges argues, because it had no case. pre-existing impinge intent to on Colombo’s counsel, right to and did

Sixth Amendment II FIFTH AMENDMENT the dominant not use the purpose preparing already pending Right A. Process Due trial, intervening indictment for attach significantly, prosecution’s More fail- right signif ment of a constitutional has no showing of need also ure to make a violates Dardi, v. icance. See United States rights. Fifth Amendment One Colombo’s 316, (2d denied, Cir.), F.2d cert. guarantees fundamental of the most 845, 51, (1964). U.S. 85 S.Ct. 13 L.Ed.2d 50 protected by process the due fair trial Concededly, grand jury may legitimately - an accused con- clause is that investigation continue an of criminal con he has been accorded the victed unless returning duct after an indictment relat - right of counsel. to the assistance See offenses, proce even the result of this ed 67-68, Powell, 287 53 S.Ct. at 63- U.S. develop additional dure is 64; Zerbst, 458, 462- Johnson v. already it has the crimes for which about 1019, 1022, 82 L.Ed. 1461 58 S.Ct. defendant, see United States v. indicted (1938); Wainwright, 372 U.S. Gideon v. (7th Cir.1974), Braasch, L.Ed.2d 799 As 83 S.Ct. nom., Barry v. cert. denied sub United discussed, guaran- the Sixth Amendment States, 95 S.Ct. tees to criminal defendants the (1975). But when a defendant L.Ed.2d 775 counsel, which includes the assistance of repre arbitrarily deprived of counsel’s offenses, obtain counsel one’s choice and then the sentation for indicted opportunity to consult to have a Amendment has been violated. This reasonable Sixth Fretag, 348 counsel. conclusion is not altered the fact See Chandler 3, 9-10, 1, 4-5, theless, S.Ct. 99 L.Ed. 4 pains the Court took to state that (1954). The Due Process clause of the may occasions arise during the course of a Fifth and requires Fourteenth Amendment investigation criminal police when identifi- opportunity. same procedures “[D]ue cation unnecessarily sug- [P]rocess are so demands that the defendant be afforded gestive or irreparable conducive to mistak- opportunity fair to obtain the assistance of that, en identifications though even counsel of prepare his choice to and con- Sixth attached, Amendment has not yet duct his defense. The constitutional man- Due Process Clause of the Fifth and Four- long date is satisfied so as the accused is teenth Amendments would mandate the ex- afforded a or opportunity reasonable clusion of these fair identifications. Id. This particular to obtain long counsel and so strongly suggests view right that the to a there arbitrary is no action prohibiting fair trial be constitutionally impaired effective use of such counsel.” United by government occurring activities prior to Fernandez, F.Supp. States 402 the commencement of judicial pro- formal (E.D.Tex.1983). ceedings. When lack of counsel works a deprivation on a suspect target rights to a fair trial and choice of prejudicial so as to deprive later him of a counsel embodied the Due Process trial, Kirby fair stands proposition clause of for the Fifth may, Amendment that evidence so circumstances, obtained some will be excluded. come into play at a case, In this point where potential earlier in time than the harm Sixth Amend- posed right prior ment cases, depri- to counsel. In indictment the later such vation of protects counsel, Fifth a defendant’s Amendment choice of a defendant judicial even adversarial abuse cannot be proceed- merely by remedied ings applying rule, are an exclusionary commenced. guar- Fundamental as Kirby process Rather, obey timetable; antees of due no indicates. to warrant the almost they disqualification neither nor certain apply attach cease to of at a the chosen attor- particular Instead, ney moment. process due the inevitable breakdown in the rights are point at the attorney/client govern- violated when an relationship, rights individual’s to a fair ment prove trial and the must first that such loss is choice unduly, of counsel are unfairly outweighed its need for the information. unnecessarily A obstructed explana- showing deprives without failure make this tion or some showing process of need of his due rights warrant defendant to a deprivation. fair When a tar- trial. get is arbitrarily deprived right of the reading This of Kirby support finds choice, counsel of his own such that he will Supreme earlier precedent Court and in unfairly deprived right of the other example, federal courts. For in Pow- effective of assistance the trial at ell the capital court held in a case that itself, process the due clause has been vio- where the defendant is to employ unable lated, regardless of whether or not an in- incapable counsel and is making of his own dictment against returned been the tar- defense, then counsel assigned must be get. That is what occurred in this case. him necessary as a requisite of pro- due cess. 287 U.S. at at 65. S.Ct. Denial Support B. in Precedent Application personal rights safeguarded some Amendment of Fifth eight the first amendments would be a In Kirby, Supreme Court held process denial due “not because those the Sixth right to rights Amendment counsel did are enumerated in the eight first not attach at pre-indictment amendments, the time of a they but because are of such lineup impose refused ex- per they se a nature that are included the con- clusionary rule all ception process identifications made of due right law.... during the lineup. course of that to the aid of counsel is of this fundamental 690-91, 67-68, 92 S.Ct. at 1882-83. None- character.” Id. at 53 S.Ct. at 63-64. Thus, (1985), Supreme Court in made 105 S.Ct. 83 L.Ed.2d 821 in- Powell right in the clear the to counsel considered cludes assistance of effective synon- process always guarantee due is not purpose context of counsel. core is to dictates of the Sixth ymous genuine adversary process. with the The Fifth courts trial, to counsel. Other guarantees Amendment a fair but have reached similar conclusions. See rights such is speedy not limited to the (violations Flanagan, 679 F.2d at 1075 trial, public impartial jury, confronta- right to counsel are encom- tion, an accused’s compulsory process, right to be passed concept process, of due within informed of the nature and cause of the right represented by counsel and the to be made, accusation and assistance of counsel. only choice arises not from the of one’s playing Fair trial envisions defense also from the due Amendment but Sixth system a critical role in the adversarial Amendment); the Fifth process clause of thereby furthering just result. When the States, 446- Dillon v. United government through its actions unreason- Cir.1962) (9th (“appointment of counsel ably unnecessarily and interferes with mandatory in those may sometimes be even ability independently counsel’s to act as a Amendment does areas in which Sixth adversary, true it has interfered with and apply.”); Devices Ass’n v. not Amusement process. tilted the delicate balance that (S.D. Ohio, F.Supp. State When the result of activities 1977) (the Due Pro- Ohio command of the prejudices process, the adversarial then the the Fourteenth Amendment cess Clause of guarantee constitutional of a fair trial is limited, right assist- not in area of the violated. counsel, to the bare confines of the ance of Amendment). Sixth Ill FIFTH AMENDMENT CONCERNS context, which has relevance another consequences result from com- Several case, present to the Justice Frankfurter pelling attorney testify Slotnick wrote: government argues grand jury. process The ‘due of law’ which the Four- majority agrees and the that unless it is Amendment exacts from the teenth that Mr. Slotnick’s testi- first determined conception of fundamental States is a mony at trial and that he will is admissible (citations omitted) not sat- justice, It is testify, compelled to defense counsel be by merely procedural formal cor- isfied disqualified. prevent disqual- To cannot be rectness, nor is it confined an absolute ification, is entitled to have the a defendant Amend- rule such as which Sixth of need government make securing to an accused ment contains which, government says, will bal- de- of Counsel for his ‘Assistance against anced the defendant’s fence.’ attorney long as the is not counsel. So preliminary hear- disqualified priojf 134, 136, Illinois, 332 U.S. Foster v. made, ing showing of need is at which the 1716, 1717, L.Ed. 1955 Be S.Ct. pre-in- that the concludes process notions of due are embodied cause hearing panel decision dictment which right to coun within Sixth protection than required furnishes no more sel, emanating right to counsel from preliminary hearing. required at the process clause attains only the due special independent significance and merits argument ignores This the law as well where, as in those situations discussion logic. By the time experience human and here, guarantees do the Sixth Amendment relationship hearing, the preliminary apply. his client will between trial, Analysis irreparably strained. Further, have been to counsel Responsibility of The Code of Professional Washington, 466 U.S. Strickland v. (1984), and-accompanying case law demonstrates 80 L.Ed.2d 104 S.Ct. — U.S. —, proposition is incorrect for anoth- that this appeal, Lucey, on Evitts attorney may er reason. An ethically against such disclosures will be used disqualified giving grand jury after testi- him. mony interests, adverse to his client’s even protection of fundamental ethical preliminary hearing before a determines safeguarded and moral values is also testimony whether that will be used at attorney-client privilege. Lay people attorney-client trial. The privilege is re- caught in the labyrinth complex briefly light

viewed because sheds lawyers in, laws need to confide consult that issue. guide privilege them. The exists encourage full and truthful communica- A. Attorney-Client Privilege attorneys tion between and their clients “recognizes legal that sound advice or protected One of the common privi law advocacy public serves ends and that such leges serve to would advocacy depends advice or upon the law- jury subpoena is that of a client and his yer’s being fully informed the client.” attorney. and, privilege It is the oldest Upjohn States, 383, Co. v. United 449 U.S. according Wigmore, to Professor dates 389, 677, 682, 101 S.Ct. 66 L.Ed.2d 584 early century. Wig back to the 16th 8 J. (1981). more, (McNaughton On Evidence 2290 § rev.ed.1961). privilege The first arose as The sought in this case is not exception compulsion an to the testimonial privileged. Yet compelling an attorney to every today man’s evidence and is testify against his client unprivileged as to privilege recognized common law under any govern- information —whether or not Rule 501 of the Federal Rules of Evidence. mental need for testimony that exists—so disrupts feelings the human of trust and

Although aware that defense counsel’s confidence essential to the existence of the presence grand jury testify as to attorney/client relationship as to later inhi- identity client and fee information is not freely bit the client from confiding in his privilege, within this Shargel, In re 742 attorney information that privi- is fact 61, (2d Cir.1984); F.2d 62 see Colton v. leged. States, 633, (2d United 306 F.2d 637-38 Cir.1962), denied, cert. 371 U.S. 83 Consequences B. Disrupting the At- of (1963); S.Ct. 9 L.Ed.2d 499 United torney-Client Relationship Pape, (2d Cir.), States v. denied, cert. 323 U.S. duty 65 S.Ct. The loyalty of undivided of counsel (1944), plain L.Ed. 602 it client, is that enforce traditionally to his considered an es ment of the will subvert some of sential element in according a client his due the most vital attorney- process concerns that the rights, questioned by the client privilege client safeguard. aims to attorney Full whenever his is summoned before complete disclosure a client an grand jury only to assert valid —even attorney attorney’s is essential to the act privileges during repre the course of that — ing justly effectively in the client’s sentation. In re Jury Investiga Grand States, tion, behalf. Fisher v. (E.D.Pa. United 425 U.S. (Sturgis), F.Supp. 391, 403, 1569, 1577, 1976). 96 S.Ct. 48 L.Ed.2d 39 power attorney hale an (1976). English put As an old case “A testify it: jury investigating advice, man who seeks it seeks because he regardless his of whether client— may safely; believes that he do so good he will grounds has to believe rarely make may disclosures which used attorney possesses any relevant infor against him.” Annesley v. Earl Angle gives unilaterally mation — the sea, 1129, 1225, (Ex. 17 How.St.Tr. power to destroy relationship. that 1743) (cited Wigmore in 8 destroyed, 2291 at 545- Once post-indictment prelimi § 46). attorney represent No nary hearing can a client repair cannot the loss of trust effectively, unless the client brought feels free to attorney ap about after an speak frankly to the peared prosecution advocate without fear as a witness before the grand jury. 1042, 1051, The loss is like that suffered 55 L.Ed.2d 252 by Humpty-Dumpty King’s horses failure to show need for attorney’s —all King’s put and all the men could not testimony generates “feeling not a ... that together Humpty-Dumpty again. justice has been done” Anti-Fascist Com- McGrath, mittee 123, 171-72, Thus, among consequences foremost 624, 648-49, 71 S.Ct. (1951) 95 L.Ed. 817 subpoenaing attorney an before the (Frankfurter, J., concurring), but rather grand jury is drives an insurmounta- injustice has become the rule. wedge attorney ble between the and his client, Matters, re see In Grand Impact C. the Code (1st Cir.1984). Forcing F.2d a client of Professional Responsibility Scylla relying to choose between the present gone who has before the 5-102(33) DR of the Code of Professional Chrybdis finding and the provides Responsibility lawyer that once a new, puts untested counsel a client unfa- learns may he be called as a witness other proceedings miliar with in a client, than on behalf of his he contin dilemma where whatever choice representation ue that only until it becomes unsatisfying made—it is an one. The re- apparent that his testimony may preju subpoenaed lawyer equally sult for dicial to his client. Decisional law indicates inadequate. He has the so-called choice of 5-102(13) should not abe device to resisting contempt either disclosure with disqualify opponent’s an attorney simply possibilities thereby risking legal ca- — by calling him as a witness. In a close resigning reer —or from the case.1 ease, respect must his client’s negatives stygian

The of these alterna- interests and resolve his in doubts favor of ultimately will withdrawing tives undermine confidence as an advocate. See Emerald impartiality the fairness and of the crimi- Association, Green Homeowners’ Inc. v. justice system. Aaron, nal Creation 628-29, of all these 90 A.D.2d 456 N.Y. problems (3rd untoward for the client and his Dept.1982) (attorneys S.2d 219 should produces Kafkaesque a early stage result that at pro withdraw as in the directly strikes ceedings, possible at one of the bedrock val- as to enable their clients aim, counsel). ues of the Fifth Amendment whose as to secure new A committee of observed, convey Justice Powell “is to to The American Bar Association in Formal the individual a feeling govern- Opinion 31, 1975) (January found that fairly....” seldom, ever, ment has dealt with him it is adversary Car- that an or 247, 262, ey Piphus, party 98 S.Ct. other attorney would call the survey sponding lawyers they 1. aIn recent conducted J. William said had declined certain Genego, professor University notably of law at the involving drug smuggling those cases— or Center, percent Southern Law California organized disqualifi- crime—for fear of later 1,648 responding members National Asso- Forty-six per- cation or dismissal the client. Lawyers they ciation of Defense said that be- they revamped practices cent said their to government subpoenas lieved relating issued to them pay refuse cases which a defendant wants to being solely to fees were served to dis- third-party paying cash or which the fee. courage advocacy zealous on behalf of criminal City The New York Bar’s Committee on Crimi- subpoenas being defendants. These are aimed Advocacy nal recommended November experienced at the most and most successful stringent guidelines 1985 more than those lawyers prevent defense in order to adopted spring by Department last of Jus- representing suspected them from white-collar guidelines require tice. These would that sub- predicted, criminal defendants. As this tech- material, poenaed material be relevant and nique proved subpoe- effective since most government investiga- well as "essential” to a lawyers up withdrawing repre- naed end from Prosecutors, proposal, tion. under this would being disqualified sentation before drops or the client required Necessity,” “Affidavits of file be- lawyer because he has lost trust in his seeking lawyer subpoenas, fore to ensure there Times, chosen advocate. N.Y. November is no source for the Nation- other information. 1985, A20, col. 1. 9, 1985, Journal, al Law December 8. devastating government result of this practice percent has been that 14 of those re- testimony exceptions within the set forth in ceedings, and a ability new counsel’s 5-101(B)(l), (2), (3). And, if prepare is curtailed. DR. client,

testimony would be adverse to the very there would be few situations which PRACTICAL CONSIDERATIONS accepting employment as trial counsel practically, Viewed this appro- is not an justified 5-101(B)(4). under DR would be priate case to govern- decide whether the pre-indictment ment must make a case, showing government prevails

If the in this of need signals compels before it attorney attorney to an that he for a might be target grand jury’s testify investigation called to about fee information if at appear government’s all before it testify unprivileged relevant to the case. pre-indictment showing need, Without information. Under the unusual facts be- no would know fore it the district whether his court should have exer- .fee testimony important supervisory powers would be cised its under Fed.R. case, government’s 17(c) quashed but he would know Crim.P. subpoena. this testimony may his prejudicial Two compel reasons this conclusion. The and, interests, client in the government’s client’s best attorney conceded that coun- probably disqualify should prior himself sel Slotnick’s testimony would almost cer- Hence, preliminary hearing. pro- due tainly disqualify him representation, from cess govern- concerns mandate that approval subpoena by this ment make its of need before dev- Court would how serve to condone a viola- astating ability a defendant’s to conduct its government’s tion of the newly-published privi- defense. It is not intended to make Guidelines for issuing subpoenas. Hence, leged those conversations or documents the failure of the district court to clearly that the law considers to be non- this constituted an abuse of dis- privileged. cretion, which should be reversed. See In Matters, re Grand 751 F.2d at 18. Moreover, makes no con- vincing arguments why it cannot make its A. Concession the Government showing of need earlier in time. It claims that it will not know what it needs until an subpoena- conceded that indictment has ing been returned. This conten- target’s attorney disqualify would tion is somewhat less than credible because him. On three argu- occasions—in oral there why is no reason attorney court, affidavit, ment could before the district subpoenaed not be grand jury, last and in appeal prosecutor its brief on —the government after all other witnesses acknowledged issuing that the result of its testified, and at a time govern- subpoena when the a to Mr. Slotnick would cause a ment has a better sense of the evidence it conflict that certainly prevent would almost lacks to make out an indictment.- representing him from further Colombo. original panel. govern- relied on the Common' sense dictates such a conclu- concession, ment’s to conclude that under sion. showing If a of need is made before circumstance, such a the district court attorney government testifies and the by refusing abused its discretion a requirement, satisfies a need then an attor- subpoena 17(c). under Fed.R.Crim.P. ney possessing incriminating- evidence disqualify should representa- himself from government When the by that concession tion both because the likelihood of the at- knowledge indicated its its action torney being required testify at trial thereby is would meaningless render Colom- strong, early counsel, and because withdrawal af- bo’s it legally is unsound fords defendant opportunity an logically say to secure that Colombo’s Sixth early new counsel at a time enough to be Amendment to counsel was not at ‘ meaningful. If a showing implicated of need is not grand jury stage, least at the required preliminary until a hearing, Judge observes, coun- Feinberg succinctly Chief disqualification sel’s in pro- occurs late even if yet Colombo had not been indicted

263 Perhaps recognition pending charges. The nas. in other now unrelia- on the bility monitoring, believed that under the of such internal panel majority Massa- supervisory powers court, October, highest court’s chusetts’ in showing of required to make a unprofessional should be prose- made conduct for a need. subpoena attorney representing cutor to an grand jury

a client prior before without Ignored B. Its Own Guide- Journal, Government judicial approval. National Law lines 4, 1985, November at 3. recognizes itself dangers posed attorney-client to the rela- Supervisory C. Exercise Power attorney tionship when it .summons 17(c) “may quash Under Rule a court or

testify grand jury. remedy To before the modify subpoena compliance would Department problem, the Justice oppressive.” be unreasonable Broad au- guidelines requiring rea- adopted internal thority exists for a court to exercise its reasonably and no other alter- sonable need 17(c) supervisory power though even subpoena. issuing before native source property subpoenaed Subject is not Guidelines, Attor- set forth Those constitutional, statutory, or common law 9-2.161(a) (May neys’ Manual Cr.L. Matters, privilege. Jury In Re Grand 1, 1985),provide pertinent part: “B. [a]ll F.2d at 17-18. ob- attempts shall be made to reasonable from sources tain information alternative supervisory pow Courts have used their attorney issuing subpoena to an quash grand jury subpoenas ers to when representa- relating information potential or to a issued to an investiga- of a a criminal tion Client.” target, when no of relevance or tion, F.(l) approving specifies that supplied by government. need was See “[tjhere must be issuance id.; Special Jury In Re No. 81-1 Grand grounds to ... that the reasonable believe (4th Cir.1982) (Harvey), 676 F.2d sought reasonably needed and withdrawn when vacated completion successful of the investi- for the fugitive, became target and he indicted F.(3) gation,” and in it is stated that “[a]ll Cir.1982)(en banc); (4th F.2d 112 In Re attempts to the informa- reasonable obtain (Schofield), 486 Proceedings Jury Grand from sources shall have tion alternative (3d Cir.1973); In re F.2d Grand Finally, in proved to be unsuccessful.” Matters, (subpoenas 751 F.2d at F.(5) require subpoenas the Guidelines held invalid concerning arrangements fee narrowly drawn.” “shall attorneys on criminal defense when served summary A brief illustrates that here pending in state clients had cases whose F.(3) F.(l), specified in investigation those Guidelines under fed court and were F.(5) (1) completely ignored: were the sub- court). the circumstances of eral Under broadly “any to include poena drawn subpoe was the instant case issuance records ... not limited to ... fees the recited all because of na was unreasonable Slotnick.”; (2) argu- ... received oral concession, the utter dis government argued ment the that since a of its government. own regard , lawyer representing provides a client the Guidelines. information, relating evidence to fee best (3) explored;

no alternative source need be CONCLUSION specifically require the Guidelines F.l reverse the order Accordingly, I vote to sought the information must be shown court, subpoena, of the district Obviously, reasonably to be needed. to make the safely rely govern- and direct cannot courts need monitoring protect rights, requisite of:relevancy ment’s internal sqch subpoe- subpoenas before it jeopardized by the issuance of Slotnick.

Case Details

Case Name: In Re Grand Jury Subpoena Served Upon John Doe, Esq. Richard Roe, Intervenor-Appellant v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 1, 1985

Citation: 781 F.2d 238

Docket Number: 638, Docket 84-6319

Court Abbreviation: 2d Cir.