*3 Harvey. represent- Mark and have Moffitt MURNAGHAN, Before SPROUSE and Harvey grand ed throughout jury pro- ERVIN, Judges. Circuit ceedings prior prosecutions and criminal ERVIN, Judge: subject which grand Circuit are also the jury’s investigation. appeal question This raises the whether 1981, the district quashed 4, court have should On Mark November and Moffitt subpoena issued to an at- filed a quash motion to in the torney representing appellant, Leon D. United States District Court the East- Harvey, target who is of an ongoing Virginia ground ern District of on the grand jury investigation. In the the subpoena required privi- motion to disclosure of quash denied, leged court Harvey representa- district their communications in argues if his tion Harvey. forced to of Mr. The court denied both appear jury, before quash his sixth motion to and another motion amendment to choose his own attor- Mr. Moffitt to intervene behalf of Har- ney will infringed pro- vey.1 granted subsequently This court Har- tected the attorney-client privilege vey’s directing will writ of mandamus the dis- be revealed. We believe that in permit Harvey this situa- trict court to to intervene in hearing, longer At this Moffitt was withdrawn and is no at issue. subpoena may appeal stayed quash. motion to This court also denial appearance before to quash resisting

Mr.' Mark’s without first motion Harvey’s a decision on motion jury pending being contempt. found in hearing quash. States, before district At Cobbledick v. United 23,1981, Harvey argued (1940). court on November 84 L.Ed. 783 S.Ct. When protected by documents were party, to a how- directed third product2 privileg- ever, work quash who files a one motion as es well as the sixth amendment and production subpoe- v/ho claims the documents to for in submitted the court would violate fifth naed his documents. inspection. camera privilege against self-incrimi- amendment permitted appeal. nation immediate On December district court States, Perlman United that none of “facially found the documents theory 62 L:Ed. -950 disclosed confidential communication exception *4 underlying general this to the Harvey attorneys,” between and his denied that in rule is those situations there is real Harvey's motion quash, and directed possibility party the third will not be- risk appear Mark to before the ing contempt in found and will turn over requested records. court described subpoenaed hap- If documents. the documents as follows: pens the will be revealed and These in camera records consisted of challenging party will payable numerous checks to various and appellate denied effective review at a later sundry persons, including Court, Clerks of stage. consultants, printers, out-of-town attor- neys, transportation, rail air and oth- Although the first circuit has denied expenses er similar incurred Mark & an appeal immediate in a case where a Moffitt, Harvey’s P. C. in re defense of party’s attorney subpoenaed, was In see re marijuana his convictions in this and in Oberkoetter, Cir.), (1st 612 F.2d 15 for app. Georgia excerpts federal courts —arid denied, 726, 1041, stay 444 100 62 U.S. from computer printouts their listing (1980), 727 majority L.Ed.2d the vast of the . payments these charges as against their See, appeals circuits have allowed such Harvey escrow account. e.g., Jury Proceedings (Jeffrey In Grand excerpts These computer from their Fine), (5th 1981); 641 F.2d 199 In re Cir. printouts also listed the dates and the Jury Proceedings Katz), (Gary Grand money they amounts of had received (2d 1980); F.2d 122 Cir. In re November Harvey from during period ques- in Jury, (7th 1979 Grand 616 F.2d 1021 Cir. tion. 1980); Jury Proceedings (Ap In re Grand peal Corp.), Harvey On December of FMC noted his F.2d 798 appeal Parsons, Corp. and moved stay this court Velsicol Chemical v. appearance denied, (7th Mark’s grand jury. before the F.2d 671 cert. granted We the stay and issued orders for expedited, briefing agree We majority schedule and with the submis- subpoenaed

sion circuits and documents hold identical interests inspection. camera supporting appeal the immediate rule in support allowing appeal Perlman

II. case. challenges first III. appealability Harvey’s denial of motion to quash directed general, attorney. his Generally, protects one served privilege with a from disclosure communi product privilegeapplies holding Harvey’s on whether the work 2. Because our favor is attorney privilege based on the client and his in this case. interests, sixth we decline to rule amendment only lias attorney disclosed client to his cations from a concerning legal possible drug confidence and advice relates to tax fraud and of- attorney. Wigmore, argument from the See fenses and indicated-in oral Evidence, (McNaughton subpoenaed might 2292 at 554 Rev. documents be used as § 1961). Payment expenses gen- prosecu- of fees and a basis for a net worth tax evasion erally privileged sketchy is not information because With such tion.3 disclosure of the payments ordinarily not communi- purposes such for which the documents are articulate, purpose obtaining sought, Harvey cations made for the is unable to Davis, discern, legal advice. this court is unable to whether dis- implicate Cf. Nation- closure of the documents would Harvey, activity al Labor Relations Board v. 349 him in the criminal for which the 1965) (dicta) (the Furthermore, representation sought. F.2d 900 fact of was employment retainer and terms of ordinari- the district court knows more than unless Hironimus, privileged); Behrens v. ly government’s purposes we do about the 1948) (“[T]he documents, seeking would be in no position privilege existence the relation of better to rule on the issue communication.”) privileged client is not a ruling if we were to remand this case for the documents item item. Until exception An privilege to the no government discloses the relevance of the recognized person rule is “where the invok subpoenaed grand jury’s documents to the ing privilege strong can show that a investigation, proper ruling privilege on the probability exists that disclosure such *5 issue cannot be made. implicate would that client in only government Not has the refused to very activity legal the criminal for which reveal information for the court sought.” advice was United States v. privi- to attorney-client decide whether the Hodge Zweig, (9th and F.2d case, lege applies in this this im- 1977). Application privilege of these plicates Harvey’s right constitutional rules, course, particular of turns on the counsel of his choice. When a is Jury facts of the ease. In re Grand Pro against attorney ongoing issued an in an Jones, ceedings v. attorney-client relationship, attorney the Koerner, Baird v. F.2d placed position well be in the of becom- 1960). In rule the order to ing against risking a witness his client or case, however, privilege issue in the contempt. strong In either there is a court must what relevance the know re possibility wedge that a will be driven be- quested grand jury have to the documents attorney tween the the and the client and investigation. the Unless nature of the in relationship destroyed.4 will be im- These vestigation disclosed, is a court cannot de private portant interests should not be sac- termine whether disclosure of the docu public rificed to the furthered interest implicate ments “would the client in the grand the jury’s investigation un- criminal very legal criminal act for which advice is showing less preliminary some is made sought.” government. government consistently has re regarding fused reveal details recognize normally We a sub purpose grand jury investigation. It poena presumed regular, is to be and that tempt may totally destroy government 3. When asked if had an “ex- pectation” finding incriminating relationship. 17(g). of evidence for Fed.R.Crim.P. If the attor- prosecution simply a tax ney appears evasion or complies a mere with the and “hope,” government’s argument doors, jury counsel at oral grand before the behind closed responded they “hope” finding had a of chilling substantial effect on truthful communi- such material. attorney cations from the client to the thereaft- likely, especially er if is would be the client attorney If the resists the and is indicted. contempt, punishment found in for con- continuing to has of receive the subpoenaed party the burden assistance of coun- showing that the information already he purposes sel has retained for of privileged grand that there has been an abuse jury investigation. The interests See, grand jury process. e.g., Bever- maintaining proper attorney-client of re- States, ly lationship v. United F.2d protecting the confidences of 1972).5 attorney target Where the for relationship are similar to the sixth however, subpoenaed, right amendment to effective assistance of attorney-client privilege considerations and counsel and fundamental to our adversarial sixth interests system justice. balancing amendment arise automati- In public cally preliminary showing and a must be interest in investigation of crimi- effective government activity by juries before the attor- against nal ney appear can private be forced before the preserving substantial interests grand jury. proper on-going attorney-client relationship protecting confidential communica- subpoenas jury Grand are issued tions, it not an unreasonable burden pro prior approval. forma with no court As require prelimi- to make a they such are instrumentalities the Unit nary showing by affidavit. Attorney’s although ed States office issued under the district court’s name and for IV. grand jury. though general Even In determining what need assistance of counsel at the present preliminary showing, must in its great is not as as the need for counsel provided guidance by the third circuit in trial, after indictment a witness in (Schofield), Jury Proceedings Grand grand jury experienced room faces the ease, In that prosecution counsel of many thus in potential petitioner, target who was a the right circuits has to consult with his grand jury investigation, con- was held in outside the room tempt refusing comply with a protect order to his fifth amendment jury subpoena directing provide her against self-incrimination. See United handwriting samples, photographs, and fin- Mandujano, 564, 605-06, *6 gerprints. In reversing the conviction for 1768, 1790-91, 96 S.Ct. 48 212 L.Ed.2d contempt, the court established the broad (1976) (Brennan, J., concurring) (citing government rule that the is not entitled to George, United v. 310, States 444 F.2d 315 have a subpoena enforced unless it makes a 1971); Weinberg, United v. States preliminary showing by affidavit that the 743, 439 745 United sought items investiga- “relevant 821, States v. Capaldo, 824 being tion conducted the and 989, cert. denied 394 U.S. properly jurisdiction, within its and is not 1476, 764)). 22 Though L.Ed.2d an unin sought primarily purpose.” for another Id. grand dicted jury witness’ sixth amendment at 93. to counsel does not attach at the grand jury stage, the witness nonetheless is requirement three-pronged This “faced with the prosecutorial designed forces or of that private insure before a ganized society and immersed in the intrica citizen be testify can forced to a before of procedural cies substantive and grand criminal the jury, Attorney United has States Illinois, law.” Kirby 682,689, 406 U.S. 92 grounds subpoena to believe proper. the 1877, 1882, S.Ct. (1972). 32 requirement We note that the relevance of Thus, even though the witness not does the appropriate Schofield standard is in this have the right to appointed have counsel case to determine whether documents the him, for has he a substantial interest attorney-client privilege. fall under the court, upon 5. We oppressive.” also note the that district unreasonable or Fed.R.Crim.P. motion, “may quash 17(c). modify the [requesting compliance if documents] be would

1011 however, get grand jury investigation subpoena, also risks the de- This important rela- sixth ongoing attorney- struction of an amendment and tionship. balancing public the interest in privilege In client issues are raised. jury with informa-

providing against private

tion inter- may it need V. impor- maintaining est of confidential and We are convinced that our holding professional relationship, tant not in this ease is not contrary principles to the enough that be to be shown by the Supreme laid down Court United regular. grand jury subpoena un- When a Dionisio, States v. U.S. S.Ct. ongoing attorney-client dermines an rela- (1973), 35 L.Ed.2d and United States v. tionship, Attorney should United Mara, S.Ct. L.Ed.2d also important show affidavit an need6 Dionisio, (1973). group of Thus, for sought. this jury they witnesses were that advised were situation, must targets investigation jury of preliminary showing include in his a demon- subpoenaed transcript were to read the stration is rele- that the information intercepted lawfully wire conversation into vant to and for an needed recording device. Dionisio refused to being grand jury. conducted comply grounds agree We court in procedure with thé his fourth Schofield violated grand jury secrecy requirement Fed. rights. fifth amendment At enforce gener- 6(e) R.Crim.P. not hearing, does necessitate a ment stated that government’s al requiring rule threefold only the statements were used to be preliminary showing be comparison made to the district determine if the wit court in We leave camera. to the district nesses was the one whose conversation was spe- court’s intercepted, discretion a determination that stated that voice ex cial emplars circumstances warrant in camera the investiga were review government’s affidavits. tion. The seventh circuit denied enforce Challenge adequacy govern- to the ment because the had not ment’s preliminary showing may showing preliminary probable made a or, See, hearing the enforcement Mississippi, as in cause. Davis v. quash subpoena. in a motion L.Ed.2d reiterate, however, reversed, We holding Supreme we do Court adopt the rule that preliminary prohibition against Schofield amendment fourth showing every grand jury made for must be search unreasonable and seizure does not subpoena.7 only We hold require preliminary showing the threefold before a preliminary showing by (including grand affidavit can be issued for the *7 showing needed) a that the purpose obtaining testimony information is is or of voice or required subpoena handwriting exemplars. when a is issued to an The issue in Unit Mara, who been tar- supra, has retained the ed was similar.8 necessary withholding judgment 6. We do not think it 7. In to determine on the issue wheth- point showing preliminary showing what would constitute a of er a be must made in important case, requirements every need. for such we understand that other circuits vary showing according See, a adopt e.g., will to the circum- to have declined such a rule. however, note, Liberatore, (2d stances of each case. We do In re 574 F.2d 78 In inquiries prosecution Jury (McLean), that Investigation there are two the re Grand F.2d making showing must address when a of need. First, sought necessary is the information or important grand jury investigation? case, government sought to the 8. In that the enforce- Second, subpoenaed attorney subpoena handwriting requesting is the the best ment of a ex- showing showing probable emplars making source for the information? A without a of be information cannot obtained from anoth- cause. The court held that enforcement of the would, course, to, important er source but would not an unreasonable constitute for, did, necessarily government in- conclusive the second seizure. The how- search and quiry. ever, supply showing exemp- affidavits that the simply “fishing it on expedition.” is a were based on consti- For Dionisio and Mara stated, of the challenges to enforcement the reasons the United tutional States Attor- convinced, however, required ney to subpoenas. pre- We make described liminary showing acquire in to showing we now re- order preliminary supervisory subpoenaed documents from Mr. Marks. exercise of our quire proper is a Accordingly, Harvey’s quash motion to justice power over the administration of granted district court’s enforce have refused to this circuit. Courts of such denial motion is variety of nonconstitutional subpoenas for a Jury Proceedings re reasons. In Grand See REVERSED. (Schofield), at 91. This court has supra, over the conduct of supervisory power MURNAGHAN, Judge, Circuit dissent- grand jury proceedings within this circuit ing: to fashion to fur- power and has the rules myself Regrettably, I find unable to con- justice

ther when administration principal proposition cur in the for which necessary. such rules are McNabb v. See majority panel opinion Despite stands. S., 340-41, U. single decision in the Third Circuit Court 612-13, (1943); Fay 87 L.Ed. v. New Proceedings Appeals, Jury In re Grand York, 261, 297, 1613, 1632, (Schofield), 486 F.2d 85 91 L.Ed. 2043 We hold that do not contrary, appears well established au- requires preliminary the sixth amendment thority, grounded and on well reflection however, showing hold, in this case. We do principle, grand jury that the should be free supervisory power in exercise of our preliminarily, without over proceedings federal in this basis, generalized being required justify circuit, preliminary showing described necessity the relevance and of its action.1 appropriate protect person’s interest Citizenship many confers benefits. It also maintaining proper attorney-client rela- imputes responsibilities, certain one tionship. showing Requiring such a in this government’s which is to aid the search for impede limited will not situation the effec- sufficiently likely information. It is more tiveness grand jury9 well than not that the will be for search relevant facilitate by providing properly disclosable to relieve basis early ruling for a district court’s on a government prosecutors witness’ assertion of the requirement, applicable every privilege. they probable first establish cause. See, e.g., Jury Investigation In re Grand

VI. (McLean), 1977) (“In any asserting has the absence of witness purposes failed to disclose the prosecutorial harassment or misuse of the jury investigation, system, impose relevance of the in upon will not sought by formation of Mr. any pre- or the courts district Marks, important liminary requirements infor impede need such which would mation. has grand jury’s investigative powers.”); Neither at In tempted to believing Proceedings dissuade us from Jury (Hergenroeder), re Grand Special February Jury E.g., Iars were essential and Grand jury investigation 1977) (“A (Lopez), and were to be used for *8 purpose. limited jury duty grand a is not under to disclose rea seeks.”); for the it In re Ber sons any 179, (10th ry, Schofield rule “has not seri- caused F.2d 184 521 cert. disruption grand jury proceedings” ous denied, 928, 276, of in 46 L.Ed.2d Hearings the third circuit. on 94 (1975) (“Relevancy materiality H.R. Before 256 and are not Immigration, the Sub-committee Citizen- enforcement.”). pertinent to ship, and Law International of the House Com- Judiciary, Cong., mittee in the 95th 1st Sess. (1977). 1977) (“In ing a blanket rule that view the burden of 555 F.2d show- government ing good generally cause must be presumption that the met of the the before it ever law, inject can the see no reason to obeys lawyer a an on-going representa- who has investigations jury the grand into routine relationship grand jury target. tional with a upon district courts delay imposition and opened up by will be a rule institution- present stage, Harvey’s At the attorney affidavits.”). disclaiming these alizing in stands the same shoes as banker ledger stockbroker ordinary whose of busi is, that, emphatically, say to That subpoenaed. Simply by ness transactions prospective the witness in fact as- where ledger transactions, maintaining a to record going sumes the burdens of forward and of not, rule, general an under the has persuasion prima and establishes facie that engaged privileged in communications. testimony compelled, the should not be the Rather, privileged the are communications produced. evidence nevertheless It must be person only invoking “where the privi the all comes down to the choice as to which can lege strong probability show that a way run. I presumption the should cannot of exists disclosure such information accept presumption irregulari- of blanket implicate that the very would client in crim ty, resulting proof of and rule activity legal inal for which advice was probable precede production cause of must sought.” v. Hodge any grand jury. subpoenaed by evidence Zweig, 548 F.2d course, panel Of the members of ma- also, Jury Proceedings e.g., In re Grand See jority purport to restrict the decision to (Jones), us, case in which the before one Investigation (Tinari), Jury Grand to issues counsel for someone who is a tar- 1980) (per curiam), cert. However, get inquiry. of jury once denied, accepted respect such a doctrine is with to showing Since no has lawyers, long it will not be well- before been disclosure of documents equality require notions will founded of implicate very in would client “the to all persons extension of a doctrine which legal activity which was criminal advice attorneys. is ill-conceived even if to limited sought,” the documents are no different It speak not do pride equali- does with of ledger of a than sheets or stockbro banker ty law, creating under at the same time attorney, ker. If like other preferential or “ennobled” status for law- witness, shows that the materials yers. privileged, jury’s or overcomes the payments Here we are with confronted presumption regularity, of then he is enti receipts lawyer with connection quashed. tled to have the his representation grand jury’s tar- simply concept To me distorts get, Leon Harvey. fool- process put lawyer the democratic view, ishly, strategic point from a has separate category, and free him of a objectives conceal for the responsibility which must be assumed subpoena, and it well the dis- argument other citizens. The that the rela- judge may trict have occasion conclude tionship with client in so itself is prospective that the witness has carried the require produce tender that him to requisite subpoena, burden to show that the subpoenaed unduly materials would risk di- item-by-item considered on an or category- attorney-client privilege lution of the basis, by-category quashed, should be accused to have However, part. whole inor it is in the trial assistance of for his counsel defense has appellate court and not level that ring. A hollow client who loses faith in his pertinent factual issues inquiries of that lawyer lawyer complies because the with type should humbly law, be resolved. I suggest as banker or a must stockbroker mistake, law, that we invading make a bad has comply adopted an unrea- province court, of the district stance. establish- sonable *9 witness, hearings where to elicit on the as I informa-

If the burden is be, we not quash submit should Specifically, should tion. order in to determine the subpoena, rather should affirm but may nature of the he wish to action, by which it care- district court’s hear testimony from Assistant United fully the reluctant left available to witness Attorney regarding the matter. respect opportunity, to each docu- with 6(e)(3)(C)(i) per- Fed.R.Crim.P. specifically documents, category ment or to assert a mits occurring disclosure of matters before privilege, put grounds sup- to forward grand jury a by “when so directed a court porting privilege, ruling and to obtain a preliminary judi- to or connection with in a any compul- from the district court before cial proceedings,” provides: sion to turn document or over the docu- If disclosure the court orders of matters Assuming ments becomes effective. occurring grand jury, before the dis- production district court concludes manner, closure made in such shall be at compelled, not be no should material time, such such and under conditions as however, problem If, 'exists. the district may the court direct. court determines the material should Moreover, disclosed, in long be there is available an immediate courts have held that camera appeal pursuant 1826(b),2 hearings appropriate to U.S.C. an § and, appropriate, stay where of incarcera- resolving disputed efficacious means of is- tion, prospective should the States, witness elect to Kerr v. United privilege. sues of position stand on his and to draw a con- 394, 405-06, 2119, 2125, 426 U.S. 96 S.Ct. tempt citation.3 McLawhorn v. North (1976); L.Ed.2d 725 Carolina, 5-6 n.13 panel majority’s concern that Helms, Halkin v. 5-7 overstepping its bounds can (D.C.Cir.1978). Stonewalling by assuaged be fundamentally without alter- ing proceedings might in those grand jury proceedings. burdens in At proceeding, properly by an enforcement a district considered the district court judge should feel free to conduct in camera ruling in on of privilege. the claim ing 1826(b) provides part: assuming 2. 28 that to be the § further U.S.C. Any persuaded appeal that he cannot be located and an order or from of confinement court, compelled [governing appear under this section to before the recalcitrant district disposed obviously lawyer point shall be witnesses] of as some is free to practicable, thirty soon required as but not later than merely determine how he is much not days appeal. filing from the of such represent ability to to the best client of his willing but to substitute himself for-a client not Appellant express curiae and amici concern contempt himself to sustain the citation neces- lawyer compelled that a should be to risk con- sary appel- to have the issue reviewed tempt and, and incarceration for a client on the late court. coin, other side of the concern for the client Moreover, actuality of severe inconven lawyer, validity whose of'the confident lawyer magnified unduly. ience to the position unwilling or event to lan- ap guish Whenever the pealed, of a order district court is vile, proceeds comply in durance to ruling and the protest correctness over the of the client. appears substantially problem well, district doubt, however, court to be ap- be more parent stay granted Harvey of incarceration than either real. Leon has himself judge pending appeal scope the district intervened. us It is well within the of alter- 1826(b); judge, natives available. Jury § available to district Cf. 28 U.S.C. should he In Grand (Horak), privilege particular Proceedings find a claim of as to a 625 F.2d 767 invalid, denied, group document or of documents cert. Harvey him to appear summon Leon before him, Harvey lawyer simply impressed by direct to order the I am not the claimed materials, turn Harvey, over the plight lawyer, and to find whose client leaves the field lawyer, rather contempt than failing demanding lawyer of battle that the remain to to do so. him, accept defend then and who chooses to post-briefing post-argument contempt go jail In a commu- citation and where the nication, prospects appeal U. S. slight Assistant has indi- success are too Harvey may disappeared, cated that Mr. justify stay have pending appeal. resolution on making that alternative Assum- unworkable. *10 sum, disagreement my is not with the majority’s zealous concern the interests

which adhere rela- Rather,

tionship. I do it neces- not believe

sary depart radically from settled

jury procedures. I dissent. Therefore COMPANY,

HOGG’S OYSTER

INC., Appellee, America,

UNITED STATES of

Appellant.

No. 81-2104. Appeals,

United States Court of

Fourth Circuit.

Argued March 1982. April

Decided