UNITED STATES of America, et al., Plaintiffs, Appellants, v. Daniel KLUBOCK, et al., Defendants, Appellees.
No. 86-1413.
United States Court of Appeals, First Circuit.
Decided Oct. 30, 1987.
Heard En Banc June 3, 1987.
832 F.2d 664
Believing as I do that the district court exceeded its rulemaking power, I also believe for like reasons that the Supremacy Clause prevents Massachusetts from ever enforcing its PF 15 against a federal prosecutor.
For these reasons, I dissent.
Sara Criscitelli, Dept. of Justice, Washington, D.C., with whom Robert S. Mueller, Acting U.S. Atty., Boston, Mass., was on brief, for plaintiffs, appellants.
Michael S. Greco, with whom Richard W. Renehan, David A. Hoffman and Hill & Barlow, Boston, Mass., were on brief, for defendants, appellees Massachusetts Bd. of Bar Overseers, and Bar Counsel, Daniel Klubock.
Max D. Stern, with whom Patricia Garin, Stern & Shapiro, Jeanne Baker, Silverglate, Gertner, Baker, Fine, Good and Mizner, Matthew H. Feinberg, Segal, Moran and Feinberg, Benjamin Fierro, III, Edward J. Smith, DiCara, Selig, Sawyer & Holt, Peter W. Agnes, Jr., Boston, Mass., Kari Tannenbaum and Rona Gregory were on brief, for
Before CAMPBELL, Chief Judge, COFFIN, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.
OPINION EN BANC
PER CURIAM.
In this challenge to a local rule adopted by the District Court for the District of Massachusetts, the district court sustained the validity of the rule. United States v. Klubock, 639 F.Supp. 117 (D. Mass.1986). A divided panel of this court affirmed in an opinion dated March 25, 1987. Upon granting the petition for rehearing en banc, this court, as is customary, vacated the panel‘s judgment and withdrew the panel opinion. Upon en banc consideration, this court is divided 3-3. Therefore, the decision of the district court is affirmed by an equally divided court.
We reproduce below (1) the en banc opinion of Judge Torruella in which Judges Coffin and Bownes join; (2) the dissenting opinion of Chief Judge Campbell; and (3) the dissenting opinion of Judge Breyer in which Judge Selya joins.
We also at this time reproduce for publication with the en banc opinions, an amended version of the original panel opinion and dissent, 832 F.2d 649. While the panel opinions no longer have standing on their own, the members of the en banc court make reference to them in the course of their opinions and hence they are issued to supplement the en banc opinions.
TORRUELLA, Circuit Judge.
We granted appellants’ petition for rehearing en banc to consider two issues: “1. Whether the district court, under its local rule-making authority, can require prior judicial approval before grand jury subpoenas may be served on attorneys in light of
Two of our dissenting colleagues, Judges Breyer and Selya, however, in what can only be described as a different tack, perhaps even a tack out to sea, suggest that this appeal be jettisoned to consider an issue which was never proposed, litigated or considered by the parties or the district court at the trial level, was never preserved, briefed or argued on appeal before this court‘s panel or the en banc court, and was in fact specifically disavowed by appellant during oral argument before the latter. In his separate dissent, Chief Judge Campbell expounds upon his original panel dissent. Since we abide by the majority panel opinion, we do not find it necessary to address, in detail, our differences with the Chief Judge‘s expanded en banc dissent. The “issue” raised by Judges Breyer and Selya is whether there was a failure to give public notice and an opportunity for comment before adoption of the local rule challenged by appellants, as required by
If there is anything to be said about the adversary system, particularly when carried out by advocates as competent as those appearing throughout this case, it is that it would be unusual indeed for such an issue to have escaped the crucible of contentious litigation if there is a factual basis to be developed on the record in support thereof. The complete silence of both appellants and appellees regarding the adequacy of the opportunity to provide comment is particularly important, since the
It is elementary that an allegation such as that made by the dissenters with respect to
Before we leave this matter entirely it should be pointed out that Rule 57 only1 requires “appropriate public notice and an opportunity to comment.”1 What scant record exists on this subject would lead us to conclude that appellants had such notice and opportunity. The dissent notes that on October 7, 1985, Local Rule 5(d)(4)(B) was proposed by the district court and circulated for comment. See infra p. 671. Contrary to the dissent of Judges Breyer and Selya, however, we do not agree that prior to its amendment in June, 1986, there was ambiguity as to whether Rule 5(d)(4)(B) incorporated S.J.C. Rule 3:08. This is clearly established by the fact that, rather than comment on Rule 5(d)(4)(B), the United States Attorney sought an exemption from PF 15. Thereafter the Massachusetts Bar Association and the Massachusetts Criminal Defense Lawyers indicated that they would comment if the district court was inclined to grant the United States Attorney‘s requested exemption. The district court denied this exemption and thereafter no comments were submitted. Rule 57, of course, does not require comment, only the opportunity to comment.
In view of this history it is not surprising that appellants have not pressed this issue. The United States Attorney and his colleagues, the only really interested parties affected by PF 15, had notice and an opportunity to comment, but rather than submit a detailed, substantive critique of PF 15, they sought a blanket exemption from the rule.2 They had their turn at bat and struck out. They are not entitled, on appeal, to another turn at the plate. We conclude, therefore, that the Rule 57 question is an appellate non-issue.
On the merits of the en banc issues, Judge Breyer‘s dissent raises a series of
The dissent overlooks the circumscribed nature of our review. Our appellate function is not to determine whether the district court passed the best possible rule but to determine whether the local rule complies with the standards recently summarized by the Supreme Court in Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 2614, 96 L.Ed.2d 557 (1987) (Rehnquist, C.J., dissenting) (citing Colgrove v. Battin, 413 U.S. 149, 159-60, 162-64, 93 S.Ct. 2448, 2455-56, 37 L.Ed.2d 522 (1973); Miner v. Atlass, 363 U.S. 641, 651-52, 80 S.Ct. 1300, 1306-07, 4 L.Ed.2d 1462 (1960)). Our inquiry is limited to determining:
[1] whether the rule conflicts with an Act of Congress; [2] whether the rule conflicts with the rules of procedure promulgated by the [Supreme Court]; [3] whether the rule is constitutionally infirm; . . . [4] whether the subject matter governed by the rule is not within the power of a lower federal court to regulate.
Id. (Rehnquist, C.J., dissenting) (citations omitted). These standards were considered by the district court and discussed in our panel decision, although in different form. See United States v. Klubock, 832 F.2d 649, 652-53 (1987). Without unduly repeating what was stated in the panel decision, we ruled that there was no conflict with
As previously stated, this is not to say that the rule is perfect, and we encourage the district court to monitor closely the working of PF 15, and to be receptive to experience-based proposals for improvement. The local rule does not lay out specific standards for determining the validity of attorney subpoenas or the specific procedures for obtaining judicial approval, but, contrary to the dissent of Chief Judge Campbell, this is not ground for invalidating the rule. This is no different than, for example, Rule 17,
The opinion of the district court is affirmed.
LEVIN H. CAMPBELL, Chief Judge (dissenting En Banc).
I cannot agree with those of my colleagues who believe that the Massachusetts district court had authority, under its rule-making powers, to adopt PF 15.1 The provision is, in my view, a substantive innovation. Much of my reasoning is set out in my dissent found in the panel disposition of this case, see pages 658-64, supra. I rely on, and incorporate by reference, what I said there. But it may be useful to accent here what I see as PF 15‘s most serious defects: 1) the rule is bereft of standards to guide the district judge in determining whether or not to approve a subpoena, thus subjecting the grand jury‘s investigatory power to what, in practical effect, is an arbitrary veto; and 2) the rule is not a minor disciplinary or procedural device but, in fact, will operate to override current federal case law concerning the powers of the grand jury.
I. THE RULE‘S LACK OF STANDARDS
Judge Breyer‘s catalog of the unanswered questions raised by PF 15 is impressive, and I join in much of the reasoning set forth in his opinion. The standardless prophylaxis reflected in PF 15—“prior judicial approval“—does indeed pose a whole host of practical and theoretical problems. These defects, as Judge Breyer suggests, may be attributable to the inadequacy of the procedures the court employed in formulating the rule.
But it is the consequence of the procedurally flawed rulemaking—not the inadequacy of the rulemaking itself—that is my primary concern. Of course, a more vigorous set of procedures might have produced no rule at all, or a different and better rule, a rule within the statutory authority of the district court. The cold reality, nonetheless, is that the rule that was in fact promulgated exceeds the district court‘s powers. The rule before us could be saved by no administrative record, no matter how exhaustive. For one, the rule‘s lack of any intelligible standard to govern its application is sufficient in and of itself to render the rule invalid.
A commentator observed in 1965 that delegated law-making power had become “the dynamo of modern government.” L. Jaffe, Judicial Control of Administrative Action 33 (1965). If so, the instant rule vividly illustrates the extremes of this dynamo: PF 15 was promulgated pursuant to
A district court, to be sure, is not a legislature; and the district judges in whom PF 15 vests power over attorney subpoenas are judicial officers, not unaccountable agencies. But the district court‘s powers under Rule 57 are inherently legislative. See Burlington Northern Railroad v. Woods, 480 U.S. 1, 107 S.Ct. 967, 969 & n. 3, 94 L.Ed.2d 1 (1987) (noting that the power to fashion procedural rules for the federal judiciary flows from Article III‘s grant to Congress of the power to establish federal courts, augmented by the Necessary and Proper Clause of Article I, § 8); see also Sibbach v. Wilson, 312 U.S. 1, 9-10, 61 S.Ct. 422, 424, 85 L.Ed. 479 (1941). Thus the principles of delegation, which constrain legislative activity, seem apposite. PF 15‘s utterly standardless conferral of power on district judges renders it invalid.
II. THE OPERATION OF PF 15
An even more serious problem with PF 15 is that the novel substantive restraints which its operation inevitably imposes on the powers of the grand jury far exceed the “matters of detail” to which a local district court‘s rule-making power extends.
Three members of this court are apparently willing to accept appellees’ curious contention that PF 15, as a matter of taxonomy, is a disciplinary rule. But I see little in it about attorney discipline. Both my colleagues and the appellees concede that the rule‘s true purpose is to redress a perceived tilt in the balance of power between prosecutors and grand jury targets, an imbalance believed to threaten the relationship of an investigation target and his attorney. Arising as it does from this concern, the rule is most akin to an expanded rule of attorney-client privilege, placing a new and significant limitation upon a grand jury‘s power to seek information from certain attorneys.
A look at PF 15 in its original context buttresses the idea that it is something other than a disciplinary rule. True, it is located among the 15 ethical standards the Supreme Judicial Court of Massachusetts has promulgated relating to the prosecutorial function.3 As do the 14 rules preceding it, PF 15 begins, “It shall be unprofessional conduct . . . .” But there the similarity ends. The other rules all spell out the sort of behavior that is deemed unprofessional. Only PF 15 deviates from this “thou shalt not” structure. Had PF 15 truly been intended to provide an ethical standard, it would have been easy enough to make such a rule, specifying the sort of abuse of the subpoena power that constitutes an ethical violation. PF 15‘s deviation from the standard structure of its neighboring disciplinary rules leads to the irresistible conclusion that the rule is not really about discipline.
If PF 15 is not about discipline, the question arises, “what is it really about?” On
Yet this assumption, far from resolving the problem, only leads to additional ones. If PF 15 is read to empower a judge to require the prosecutor to make some kind of a “showing” of need or relevance in order for the subpoena to issue, then the rule is at odds with In re Grand Jury Proceedings (Hill), 786 F.2d 3 (1st Cir. 1986), a case in which this court refused to adopt this requirement. See also id. at 5 n. 2 (noting that most other circuits have rejected the need and relevance test; citing cases).
Even if “prior judicial approval” did not require any prosecutorial “showing,” PF 15 would still conflict with federal case law. It is well-settled law that a witness who is subpoenaed to testify before a grand jury is not entitled to the quashing of the subpoena in advance on the grounds of privilege, but must appear, testify, and invoke the privilege in response to particular questions. In re Certain Complaints Under Investigation, 783 F.2d 1488, 1518 (11th Cir. 1986) (Campbell, C.J., sitting by designation) (collecting cases). The witness, moreover, bears the burden of proving each of the four elements of an attorney-client communication that render it privileged. United States v. Wilson, 798 F.2d 509, 512-13 (1st Cir.1986). Thus, PF 15‘s apparent contemplation of an ex parte proceeding between judge and prosecutor—“it is unprofessional conduct for a prosecutor to subpoena an attorney without prior judicial approval“—would relieve the claimant of these burdens, substantially expanding the scope of the privilege. In short, it is difficult to imagine how PF 15 can operate meaningfully except as a substantive modification of the existing rules both of grand jury power and attorney-client privilege.5
In conclusion, because the inevitable tendency of PF 15 is to lead the judge into actions inconsistent with federal law, see supra, the rule cannot be dismissed as an innocuous “disciplinary” or procedural device. Either the judge will require the prosecutor to show the relevance of the subpoena, or will assess, in advance of the subpoena‘s issuance, whether the attorney-client privilege applies. Both actions are impermissible under current law. Furthermore, the new requirement that this type of grand jury subpoena routinely be justified in advance is an unprecedented burden on the grand jury‘s powers, putting the prosecutor on the horns of a dilemma. For the prosecutor must decide, as a matter of strategy, whether to forego an attorney
I would, therefore, reverse the judgment below.
BREYER, Circuit Judge, with whom SELYA, Circuit Judge, joins (dissenting).
This case involves two rules. The first rule is a Massachusetts Supreme Judicial Court rule of professional conduct that says that it is “unprofessional” for a “prosecutor to subpoena an attorney to a grand jury without prior judicial approval” where the prosecutor “seeks to compel” testimony about a client. Mass.S.J.C. Rule 3:08, PF 15. The second rule is a federal district court local rule that cross-references the first rule. It says that
[a]cts or omissions . . . that violate the ethical requirements and rules concerning the practice of law of the Commonwealth of Massachusetts [including S.J.C. Rule 3:08], shall constitute misconduct and shall be grounds for discipline.
D.Mass. Local Rule 5(d)(4)(B). Three members of this Court of Appeals, sitting en banc, find this second rule—the federal district court rule—lawful. In my view, however, as presently written, that rule, at least insofar as it incorporates PF 15, falls outside the district court‘s rulemaking power. In particular, the procedure that the district court followed in adopting the rule violates
The three “majority” members of the court would avoid the procedural question because the parties did not raise it in the district court or in their briefs on appeal. The majority thus follow a well-established rule that guides appellate court practice in the ordinary case. Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983); cf. Johnston v. Holiday Inns, 595 F.2d 890, 894 (1st Cir.1979) (court of appeals ordinarily will not consider argument not presented to trial court). The case before us, however, is not one of those ordinary cases; it is distinctive in several regards. First, the procedural issue was not raised in the district court opinion because it could not have been raised. It was only after the lower court‘s decision that the district courts amended the original Local Rule 5(d)(4)(B) to explicitly incorporate PF 15. The act of amending raises the new issue. It is at this point that
Second, the notice and comment issue, having postdated the district court case, is critical and potentially dispositive in the appellate court proceeding. A court of appeals may, of course, decide to address a critical issue not raised below. 9 to 5 Organization for Women Office Workers v. Board of Governors of Federal Reserve System, 721 F.2d 1, 6 n. 2 (1st Cir.1983), quoting Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (“[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases“). That power is appropriately exercised where, as here, the case is one of “great public concern,” affecting the administration of criminal justice generally. Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 361 (11th Cir.1984) (deciding generally important legal issues not raised in district court); see Schlesinger v. Councilman, 420 U.S. 738, 743-44, 95 S.Ct. 1300, 1305-06, 43 L.Ed.2d 591 (1975) (raising sua sponte issue of propriety of district court‘s intervention in court-martial proceeding).
This court, in my view, should now order additional briefing as to whether the district court provided “appropriate public notice and an opportunity to comment.” Having failed to convince a majority to ask for briefing, I shall here simply explain why, on the present state of the record, I conclude that the district court did not provide for the full, public discussion that the nature of the controversy, and the Federal Rules, require.
I
The “notice and comment” language in
The local rule before us presents an instance that clearly calls for application of the “notice and comment” procedure that Rule 57 mandates. The rule is an important one, significantly changing prior subpoena practice. Despite its characterization by both the Supreme Judicial Court and the district court, it is not simply an “ethical” standard. It does not simply restate the established principle that, except in narrowly defined circumstances, it is improper for a prosecutor to subpoena a lawyer in order to investigate the lawyer‘s client. Cf. U.S. Department of Justice, United States Attorneys’ Manual § 9-2.161(a) (1985) (forbidding U.S. Attorneys from subpoenaing attorneys for client information unless the Assistant Attorney General of the Criminal Division first determines that the information sought is necessary, unavailable from other sources, and not protected by privilege); American Bar Association, Grand Jury Policy and Model Act, Principle No. 29 (1982); In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984) (affirming decision to quash attorney subpoenas that imposed great burdens on the attorneys and their clients and were not urgently needed at the time). Rather, the local rule is a prophylactic procedural measure aimed at forestalling in advance the perceived offending conduct.
The merits of, and need for, the local rule are strongly contested. Cf. Levesque v. Block, 723 F.2d 175, 184-85 (1st Cir. 1983) (agency need not follow notice and comment procedures where public is unlikely to be interested in rule). The government points out that the Department of Justice now prohibits prosecutors from is-
Moreover, the local rule has significant implications, raising a host of further questions. For example, will the ‘initial approval’ proceeding always take place ex parte? Will the same judge who grants approval automatically hear any later challenge to the subpoena? Under what standard is the judge to review the proposed subpoena? Will there be an avenue of appeal from a refusal to grant initial approval? Is a subpoena issued without initial approval invalid? If a prosecutor, while interrogating a lawyer/witness before the grand jury, discovers only then that he needs to ask about a client, must he recess the session and obtain an initial court approval? How does the district court foresee implementing sanctions for violations of the rule? The answers to some of these questions may be fairly obvious; the answers to others are not. The basic point of “notice and comment” procedure, however, is to permit, indeed to encourage, all interested parties to address issues such as these, creating a single administrative record that will help the agency (or court) to promulgate a rule that reflects careful consideration of the rule‘s likely ramifications and that will permit the agency (or court) to refine and to tailor the rule so as to resolve these and similar questions in the manner most likely to increase the rule‘s effectiveness. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 777-78, 89 S.Ct. 1426, 1436, 22 L.Ed.2d 709 (1969) (Douglas, J., dissenting) (“Agencies . . . are not always repositories of ultimate wisdom; they learn from the suggestions of outsiders and often benefit from that advice.“); Batterton v. Marshall, 648 F.2d 694, 704 (D.C.Cir.1980) (noting that notice and comment procedure “enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those [who are] regulated“) (quoting Texaco v. FPC, 412 F.2d 740, 744 (3d Cir.1969)); 12 C. Wright & A. Miller, supra, § 3152, at 220 (commenting that notice and comment procedures ensure that federal rules “reflect the best thinking of the entire profession“).
Further, the answers to these questions may affect the lawfulness of the rule. At present, for example, this circuit, unlike some others, does not require a particular showing of “need” or “relevance” before a court may enforce an ‘attorney subpoena.’ In re Grand Jury Proceedings (Hill), 786 F.2d 3, 5 n. 2 (1st Cir.1986); see also In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238 (2d Cir.1985) (rejecting “need and relevance” standard), cert. denied sub nom. Roe v. United States, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986); Matter of Klein, 776 F.2d 628, 632-34 (7th Cir.1985) (same); cf. In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir.1973) (requiring preliminary showing of propriety and relevance before enforcing subpoenas), after remand, 507 F.2d 963 (3d Cir.), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975). Does the district court intend a stricter standard of review? If so, the argument that the local rule falls outside the district court‘s rulemaking authority would become stronger. See Miner v. Atlass, 363 U.S. 641, 646-52, 80 S.Ct. 1300, 1303-07, 4 L.Ed.2d 1462 (1960) (restricting power of district courts to effect “basic” changes through local rules); In re Grand Jury Proceedings, 558 F.Supp. 532, 535-36 (W.D.Va. 1983) (urging restraint in adopting local rules touching on important policy issues). But, if not, how is the local rule supposed to prevent abuses? Are there, in fact, in the federal courts,
II
A review of the record (without benefit of briefing) suggests that the district court did not give “appropriate public notice and an opportunity to comment” before adopting the local rule in question. On October 1, 1985, the Massachusetts Supreme Judicial Court added PF 15 to the “Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Lawyer” contained in its Rule 3:08. At that time, the federal district court was in the process of revising a number of its local rules, including Rule 5(d)(4)(B). On October 7, the district court circulated proposed revised rules for comment, including a revised Rule 5(d)(4)(B) that was ambiguous as to whether or not it incorporated S.J.C. Rule 3:08. (It simply prohibited “[a]cts or omissions . . . that violate the Code of Professional Responsibility or Rules of Professional Conduct of the Commonwealth of Massachusetts.“) The only commenter to discuss Rule 5(d)(4)(B) was the United States Attorney, who asked the court to make clear that Rule 5(d)(4)(B) did not incorporate S.J.C. Rule 3:08. On January 3, 1986, the Massachusetts Association of Criminal Defense Lawyers wrote to the district court, stating that the “United States Attorney . . . has applied . . . for an exemption for federal prosecutors from S.J.C. Rule 3:08 PF 15” and asking “that the Government‘s request for an exemption be made public and that the Court establish a period of time to receive comments as provided by the Rule.” Three days later, the chief judge of the district court said that the court would not issue any public notice because the U.S. Attorney‘s filing of this lawsuit (on December 31, 1985) “effectively mooted any need for consideration of Local Rule 5(d)(4)(B)” until after a ruling in the lawsuit.
On March 19, 1986, the U.S. Attorney again asked the court to clarify Rule 5(d)(4)(B) by specifically excluding PF 15. On April 7, the presidents of the Massachusetts and Boston Bar Associations sent the court a letter calling the U.S. Attorney‘s request “premature,” but adding that, if the district court were nonetheless to act on the request, it should grant “an ample amount of time for preparation of comments on PF 15.” The bar associations cited, among other matters, the importance of the issue, the need for time to compile relevant empirical data, and the need to discuss what standards, if any, the district court‘s rule should include. The authors concluded that they “look forward to the [future] opportunity to present to the Court the comments of our respective bar associations on this important issue.” The Massachusetts Association of Criminal Defense Lawyers also sent the court a short letter briefly endorsing the position of the Massachusetts and Boston Bar Associations and stating that the Association “await[s] advice as to a schedule for the Court‘s receipt of comments.”
The record before the Supreme Judicial Court cannot substitute for the record that Rule 57 requires both because the issues before the Supreme Judicial Court were somewhat different (largely involving state prosecutions and state procedure) and because the Supreme Judicial Court had no occasion to address a federal district court‘s legal authority to create and to control federal procedure. Nor is there any indication that the Supreme Judicial Court considered many of the questions that we have identified as likely relevant here. In any event, the federal district court did not purport to rely on the Supreme Judicial Court record as a basis for promulgating its own rule.
In sum, the procedural rule here at issue is too important, its ramifications too complex, its contours too uncertain, for the district court to adopt it simply by means of a cross-reference, without the “appropriate public notice and an opportunity to comment” upon which Rule 57 insists. That being so, in my view, Rule 5(d)(4)(B), insofar as it simply cross-references and thereby adopts Mass.S.J.C. Rule 3:08, PF 15, is invalid.
III
The question remains whether the U.S. Attorney is nonetheless bound directly by the Massachusetts rule. That rule has two significant, but different, effects: (1) it tells prosecutors to apply to a court for prior approval of an attorney subpoena, and (2) it tells trial courts to create a “prior approval” procedure. Regardless of the state‘s power to impose the first requirement, I think it clear that the supremacy clause,
For these reasons, I believe that a declaratory judgment similar to that prayed for by the appellants should issue.
Notes
Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of the rules and amendments so made by any district court shall upon their promulgation be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act.
The rule provides in full:It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness.
PF 15 was promulgated pursuant to
The general grant of rule-making power to federal courts is found in
The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.