In Re: Grand Jury Subpoena United States of America v. Under Seal
Docket: 99-2229
Court: Court of Appeals for the Fourth Circuit; February 25, 2000; Federal Appellate Court
The case involves a grand jury subpoena issued to an attorney, compelling him to testify and provide documents regarding the identity of a client. The client intervened, seeking to quash the subpoena on the basis that it infringed upon attorney-client privilege. The district court denied this motion, leading to an appeal.
The grand jury is investigating 37 Forrester Street, S.W., Washington, D.C., suspected of being an open-air drug market managed by Erskine "Pee Wee" Hartwell and associates. Hartwell and others have been indicted for money laundering and conspiracy related to drug distribution, with the property implicated as part of the drug trafficking operation. The property is held under the name "Daniel C. Quispehuman," believed to be a straw owner, and has been the subject of local complaints about drug activity.
In 1998, local legislation allowed community groups to pursue civil action against property owners facilitating drug dealing. The Bellview Improvement Council, Inc. (BIC) engaged a law firm to address the drug issues at the property. A series of letters were exchanged between BIC’s counsel and Quispehuman, culminating in a letter from Mark Rochon, who indicated he would clarify ownership of the property and work towards resolving the issues without resorting to litigation.
The court concluded that the disclosure of the client's identity does not violate attorney-client privilege, affirming the district court's decision.
On May 3, 1999, Davies agreed to delay filing a lawsuit for two weeks at Rochon's request. Subsequently, on May 17, Davies summarized a phone conversation with Rochon, noting that the property in question was "boarded up" and that its tenants had been evicted. Rochon refused to disclose the identity of his client but clarified that he did not represent Mr. Quispehuman, the recorded owner of the property at 37 Forrester Street. On July 12, the government served a grand jury subpoena on Rochon for testimony and documents related to his client and the property. Rochon sought to quash the subpoena, arguing that revealing his client’s identity would breach attorney-client confidentiality. He submitted a declaration affirming that the client wished to keep his identity confidential and had not been disclosed to any third party. The client also moved to intervene and quash the subpoena, which the district court allowed. However, on September 1, 1999, the court denied both motions to quash, leading the client to appeal. The client contended that his identity was protected under the attorney-client privilege because its disclosure would reveal his motives for seeking legal advice. The court concluded that the client could not create a privilege for his identity simply by disclosing a confidential communication. The attorney-client privilege, while protecting confidential communications, is narrowly construed to prevent impeding truth discovery and applies only to disclosures made for legal assistance. The burden is on the party asserting the privilege to demonstrate its applicability.
The attorney-client privilege generally does not protect the identity of the client, the amount of the fee, the case file name, or the general purpose of the work performed, as these do not typically reveal confidential communications between attorney and client. An exception exists where the client's identity is so intertwined with confidential disclosures that revealing it would effectively disclose privileged communication. In the case of NLRB v. Harvey, the court noted that when substantial parts of the communication are already disclosed, identifying the client could breach confidentiality. The court emphasized that a client's identity is privileged only if its disclosure would reveal a confidential communication. Other circuits have considered exceptions based on potential criminal implications of disclosure, but these were rejected, reinforcing the need for clients to demonstrate that disclosure would expose confidential communications. In the present case, the client claimed that revealing his identity would disclose his motives for seeking legal advice regarding specific issues; however, these motives were already disclosed by the client and thus not protected by the privilege, which only covers confidential communications.
In *In re Grand Jury Proceedings*, the court determined that communications between a client and lawyer related to a prospectus intended for public distribution were not confidential, even if the prospectus was never published. The clients had preemptively decided to publish, indicating that the attorney was employed to inform third parties rather than to provide private legal advice. This situation differed from *United States v. Under Seal*, where discussions about potential public filings remained privileged due to the absence of intent to publish.
The court emphasized that a client loses confidentiality when they authorize the disclosure of communications, stating that a client cannot shield their identity by revealing information that would otherwise be protected. The client's argument that revealing more information strengthens their claim of privilege is rejected; confidentiality and disclosure cannot coexist. A recognized exception exists only when a client’s identity must remain confidential to protect undisclosed confidences, as seen in *Harvey*, where a third party leaked information. In contrast, authorized disclosures by the attorney in this case eliminated any claim of privilege regarding the client's motives or purposes.
When a client hires an attorney for public actions, such as sending letters to avoid lawsuits, the privilege does not extend to the client's identity post-disclosure. The attorney-client privilege is not meant to allow attorneys to manage their clients' affairs in secrecy. The court also echoed concerns from the Second Circuit about the potential misuse of a broad privilege that could shield unethical or illegal conduct.
A proposed shield for attorney-client privilege could encourage misuse of lawyers to facilitate criminal activities or launder money, ultimately harming the justice system. Clients cannot "buy" privilege simply by hiring an attorney for tasks that could be performed by non-lawyers. The belief that attorney-client privilege protects a client's identity is insufficient to establish such privilege if the information could be disclosed by the client. The Eighth Circuit has ruled that a client's subjective beliefs cannot transform a non-privileged conversation into a privileged one. The client failed to demonstrate any unauthorized disclosure of confidential communications that would breach the privilege. Instead, the client's own authorized letter revealed motives for seeking legal advice, rendering that information non-confidential. Consequently, the district court's denial of motions to quash was upheld. The classic test for attorney-client privilege requires the existence of a client-attorney relationship, communication made in the context of legal services, and that the privilege has not been waived. Disclosure to non-privileged parties results in waiver of the privilege. The client’s confusion between formal legal action and public disclosure is noted, as sending a letter with confidential motives to outside parties nullifies the privilege.
An attorney can take public action on behalf of an anonymous client while maintaining the client's identity under attorney-client privilege, as established in Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960). In Baird, the attorney represented clients concerned about their tax returns and, upon determining they owed back taxes, anonymously submitted the amount due to the IRS. The IRS later subpoenaed the attorney for the clients' identities, but the Ninth Circuit upheld the privilege, stating that the clients' names were only relevant to demonstrate their acknowledgment of guilt regarding the offenses that prompted the attorney's engagement. Similar conclusions were drawn in Tillotson v. Boughner, 350 F.2d 663 (7th Cir. 1965). However, while Harvey referenced Baird regarding the protection of a client's identity, it rejected the idea that anonymity can be secured by hiring an attorney for disclosures. The court emphasized that one cannot purchase anonymity through legal representation, likening such a practice to renting the privilege rather than utilizing a true legal service. This perspective raises questions about justifying the privilege for an attorney acting as a messenger.
