OTHER TESTIMONIAL PRIVILEGES APPLICABLE TO GRAND JURY PROCEEDINGS
Privileges, such as the marital and attorney-client privileges, apply in grand jury proceedings. See FED. R. EVID. Rule 501; 2 LOUISELL, FEDERAL EVIDENCE § 218
at 631. While a grand jury “may consider incompetent evidence, …it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law”.
U.S. v. Calandra, 414 U.S. 338, 346 (1974).
This is important because “use” immunity under section 6002 is coextensive with the witness’ Fifth Amendment privilege. Kastigar v. U.S., 406 U.S. 441 (1972). That is, the compulsion only removes one’s protection under the Fifth Amendment, it does not preclude assertion of other valid privileges which may be applicable.
“Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts.” In Re Bruce Lindsey, Nos. 98-3060, 98- 3062, and 98-3072, 1998 WL 418780 (July 27, 1998) (stating that much of the litigation in this area stems from the Freedom of Information Act, exemption 5).
See 5 U.S.C. section 552(b)(5)(1994)
“Intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency are excused from mandatory disclosure with the public.”
However, See In Re Sealed Case, No. 98-3069, 1998 WL 370584 (D.C. Cir. July 7, 1998) (affirming the District Court’s opinion that Secret Service agents do not hold a privilege and may be compelled to testify before a grand jury); In Re Sealed Case, No. 98- 3069, 1998 WL 394652 (July 16, 1998) (holding that the Department of Justice was not entitled to a stay postponing the testimony of secret service officers before grand jury).
Regarding grand jury subpoenas, courts have required invocation of the attorney-client privilege on a document-by-document basis. In re Grand Jury Subpoena, 831 F.2d 225 (11th Cir. 1987).
WHERE THE VERY EXISTENCE OF THE ATTORNEY-CLIENT RELATIONSHIP MIGHT BE INCRIMINATING TO A CLIENT, SAME MAY UNDER LIMITED CIRCUMSTANCES BE PRIVILEGED
While generally the identity and information concerning the fee arrangement between an attorney and his client is not privileged,
Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965), cert. denied, 382 U.S. 1028 (1966);
U.S. v. Finley, 434 F.2d 596 (5th Cir. 1970);
In re Michaelson, 511 F.2d 882, 889 (9th Cir. 1975);
Colton v. U.S., 306 F.2d 633, 638 (2d Cir. 1962);
In re Osterhoudt, 722 F.2d 591, 592 (9th Cir. 1983);
In re Shargel, 742 F.2d 61, 64 (2d Cir. 1984);
In the Matter of Witness Before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984).
an exception has been made where the very existence of the attorney-client relationship might be incriminating in the very matter in which advise has been sought.
In re Semel, 411 F.2d 195, 197 (3d Cir. 1969) (stating, “[A]n exception is made for cases where the existence of the attorney-client relationship might be incriminating to a client”); In re Grand Jury Proceedings (Jones), 517 F.2d 666 (5th Cir. 1975);
In re Grand Jury Subpoena for Attorneys Representing Criminal Defendant, Reyes- Requena, 913 F.2d 1118 (5th Cir. 1990).
But see In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1028-29 (5th Cir. 1982);
In re Grand Jury Proceedings (Damore), 689 F.2d 1351, 1352 (11th Cir. 1982);
In re Grand Jury Proceedings (Slaughter), 694 F.2d 1258 (4th Cir. 1982).
The Seventh Circuit has held that the identity of a person paying legal fees to represent a defendant is protected by the attorney-client privilege under certain circumstances. Matter of Grand Jury Proceeding (Cherney), 898 F.2d 565, 568 (7th Cir. 1990).
The Eleventh Circuit has now limited the applicability of this exception to the general rule requiring disclosure of the client’s identity and fee, to situations where that disclosure would supply the “last link in an existing chain of incriminating evidence likely to lead to the client’s indictment”.
In re Slaughter, 694 F.2d 1258, 1259 (11th Cir. 1982) (describing same as a “limited and rarely available ‘exception …involv[ing] situations where the disclosure of free information would give the identity of a previously undisclosed client/suspect”).
In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1982).
“In [our Jones] holding, we expressly noted that our decision rested on the peculiar facts of that case…. Among those ‘peculiar facts’ was that the six attorneys drawn before the grand jury in Jones represented a generous portion of the criminal law bar of the lower Rio Grande Valley area, and the project was a rather broad attempt to canvass that portion for information detrimental to certain of its clients: that each had paid an attorney or attorneys amounts greater than this reported gross income during the year of payment. This and other features distinguish Jones from our case, including that the identity sought here was by no means the last link in any chain of inculpatory events or transactions, rather the contrary.” In re Grand Jury Proceedings (Pavlick), 680 F.2d at 1027.
Furthermore, the Fifth Circuit, at least intimates such “conspiratorial agreement” by the clients to prospectively provide counsel for those arrested, may be inferred from “custom or a prior course of conduct toward other apprehendees”. In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1029 (5th Cir. 1981).
“…where the government makes a prima facie showing that an agreement to furnish legal assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege to the identity of him who foots the bill -and this even though he be a client of the attorney and the attorney unaware of the improper arrangement. Such an agreement, of course, need only be an effective one, need not be express, and might in a proper case be found to arise even from a custom or a prior course of conduct toward other apprehendees.” In re Grand Jury Proceedings (Pavlick), 680 F.2d at 1029.
In 1990, the Fifth Circuit took this trend one step further, all but overruling the Jones exception. Citing The Return of the Pink Panther, the Court held that Jones only applies where the payment of the fee is coupled with confidential attorney-client communications, which would necessarily be revealed if the fee arrangement were disclosed.
“Jones is not unlike the actor Peter Sellers’ famous character Inspector Clouseau: it has been misunderstood because it invited misunderstanding. We conclude that a proper reading of Jones followed by Pavlick demonstrates that those cases did not fashion “a last link” or “affirmative link” attorney-client privilege independent of the privileged communications between an attorney and his client. Thus, “the last link” or “affirmative link” language in these cases did not significantly amend the normal scope of the attorney- client privilege, nor is it applicable to the case before us . . .
[D]espite the opinion’s frequent references to the potentially incriminating nature of the testimony sought from the attorneys, Jones does not seem to rest on that fact apart from its necessary, simultaneous revelation of confidential communications.” In re Grand Jury subpoena for Reyes-Requena, 913 F.2d 1118, 1124 (5th Cir. 1990) (Reyes-Requena I).
The Court also held that in order to receive Jones Protection, the attorney must first demonstrate that the fees were either paid by the client, or by a third party who is also a client. The problem with the Reyes-Requena approach is that the rule swallows the exception. That is, confidential communications between clients and their attorneys have always been protected. Thus, an “exception” which continues to protect those communications when they are coupled with a fee agreement would not seem to be an exception at all, but rather a mechanical application of the general rule. What was unique about the Jones exception was that it protected from disclosure not only confidential communications, but also the existence of the attorney-client relationship itself.
In a later, closely connected case, the Fifth Circuit reopened the Jones umbrella. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423 (5th Cir. 1991) (Reyes-Requena II). The defendant’s attorney submitted affidavits in camera demonstrating that Intervenor, the anonymous third party fee payer, had indeed sought legal advice on Intervenor’s own behalf, in conjunction with the payment of Reyes-Requena’s fee. The Court intimated that the “inextricable intertwining” of the fee payer’s identity with “confidential communications” might be easier to demonstrate than it would at first appear:
“The government is not credible when it asserts that it sought only the fact of intervenor’s identify rather than confidential communications. The government admits that it sought Intervenor’s identity because DeGeurin was representing a man of meager means caught while serving in a lower echelon role in a drug trafficking operation of substantial proportion. The government clearly sought Intervenor’s identity in hopes of broadening their investigation, which was limited to Reyes-Requena, by adding more charges against Reyes-Requena and by obtaining more defendants to charge in a conspiracy. In these circumstances, the government cannot credibly argue that it seeks merely neutral facts.” 926 F.2d at 1432.
COURTS AND COMMENTATORS OFTEN SEPARATE THE EXCEPTIONS INTO ONE OF THREE CATEGORIES:
1. THE “LAST LINK EXCEPTION”:
Attorney-client privilege applies to a client’s identity and fee arrangements only where disclosure of same would supply the “last link” in an existing chain of incriminating evidence likely to lead to the client’s indictment”.
In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982);
In re Grand Jury Proceedings for Attorney Representing Criminal Defendant, Reyes- Requena, 724 F. Supp. 458, 464 (S.D. Tex. 1989)
Rejected by U.S. v. Liebman, 742 F.2d 807, 810, n. 2 (3d Cir. 1984);
In re Shargel, 742 F.2d 61, 62-3 (2d Cir. 1984);
In re Witness Before Special March 1980 Grand Jury, 729 F.2d 489, 491-95 (7th Cir. 1984);
In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983). “LAST LINK” RESURRECTED AND EXHUMED
At least one Federal District Court has recently found that the amount of fees paid to defense counsel were protected from disclosure by the attorney-client privilege, on the ground that such information, based upon the limited fact situation presented by that case, constituted Pavlick’s “last link” of incriminating evidence. There the focus of the investigation was upon the defendants’ financial resources, and abundance of cash from unexplained sources in a RICO investigation. In re Douglas Willams, 717 F. Supp. 1502 (S.D. Fla. 1989).
2. THE “LEGAL ADVICE” EXCEPTION:
The exception to required disclosure of a client’s identity and fee arrangements applies only where the disclosure of such information would implicate the client in the very matter for which he sought advice.
In re Grand Jury Investigation, 723 F.2d 447, 452 (6th Cir. 1983);
U.S. v. Strahl, 590 F.2d 10, 12 (1st Cir. 1978);
In re Grand Jury (Harvey), 676 F.2d 1005, 1009, vacated on other grounds, 697 F.2d 112 (4th Cir. 1982) (en banc).
3.THE CONFIDENTIAL COMMUNICATION EXCEPTION:
Exception applies only where disclosure of client’s identity and fee arrangements would reveal “the substance of confidential professional communications” between attorney and client.
In re Grand Jury Proceedings (Osterhoudt), 722 F.2d 591, 594 (9th Cir. 1983). Some courts have combined or confused these theories.
See In re Grand Jury Proceedings (John Doe), Misc. No. XP (D.R.I., Jan. 7, 1985);
In re Grand Jury Investigation, 723 F.2d 447, 452 (6th Cir. 1983);
In re Grand Jury Subpoena Duces Tecum (Margen), 695 F.2d 363, 365 (9th Cir. 1982). CLIENT WITH PENDING CASE
In one recent case the court held that calling an attorney before a grand jury to testify regarding his fee arrangements with a client he represents in “cases pending for trial” violates the client’s Sixth Amendment right to counsel.
In re Grand Jury Matters, 593 F. Supp. 103, 107 (D.N.H.), affirmed, 751 F.2d 13, 17 (1st Cir. 1984) (noting “the importance that the federal constitution places upon the right to counsel in criminal prosecutions” and that “in these circumstances …the timing of the subpoenas unduly and unnecessarily burdens that right”).
“The actions of the U.S. Attorney are without doubt harassing, show minuscule perception of the untoward results not only to those who practice criminal law, but those in the general practice of law The use of the phrase chilling effect upon the role of an attorney engaged in criminal defense work by being served a subpoena in circumstances such as this is mild. To permit it would have an arctic effect with the non-salutary purpose of freezing criminal defense attorneys into inanimate ice flows, bereft of the succor of constitutional safeguards.” In re grand Jury Matters, 593 F. Supp. 103, 107 (D. N.H.), aff’d, 751 F.2d 13 (1st Cir. 1984).
See also In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Payden),
767 F.2d 26 (2d Cir. 1985).
“The law is settled in this circuit and elsewhere that ‘[i]t is improper to “utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial,’ United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85
S.Ct. 40, 13 L.Ed.2d 50 (1964). See 8 J. MOORE, MOORE’S FEDERAL PRACTICE §
6.04(5) at 6-86 (1984).
But see In re Grand Jury Subpoena Served Upon John Doe, Esq. (Slotnick), 781 F.2d 238 (2d Cir. 1986).
“The Sixth Amendment protects Colombo’s right to be free from unduly burdensome interruption of his counsel’s trial preparation and protects him from any unnecessary or arbitrary disqualification of his counsel. Assessment of whether the subpoena is unreasonable or burdensome can be determined under Rule 17(c). While involuntary disqualification of counsel may prevent an accused from retaining counsel of his choice, courts have the power and duty to disqualify counsel where the public interest in maintaining the integrity of the judicial system outweighs the accused’s constitutional right.
…And, as with the pre-indictment claim, the possibility of disqualification is not a basis for declining to enforce the subpoena; it is an issue for the trial judge if disqualification should arise.” In re Grand Jury Subpoena Served Upon John Doe, Esq. (Slotnick), 781 F.2d 238 (2d Cir. 1986).
TIMING IS EVERYTHING
When a lawyer and his/her client are called before the same grand jury, the subpoena’s timing is key.
“In the instant case, the Government has subpoenaed a defense attorney during the pendency of indictment proceedings. The subpoena here impinges upon the attorney-client relationship and, by diverting attention from the preparation of the client’s defense, severely hinders the attorney’s effectiveness in representing him. Accordingly, apart from the issue of privilege, the Court would quash the subpoena given the timing of, and circumstances surrounding, its issuance.” In Re Grand Jury for Attorney, Reyes-Requena, 729 F. Supp. 458 (S.D. Tex. 1989), rev’d and remanded as moot.
However, the Fifth Circuit recognized that the “oppressive timing” of a subpoena may require the district court to quash the subpoena.” In Re Grand Jury Subpoena for Attorney, Reyes-Requena, 913 F.2d 1118, 1122 (5th Cir. 1990).
DISCUSSIONS BETWEEN AN INDIVIDUAL AND “A LAWYER REPRESENTING ANOTHER IN A MATTER OF COMMON INTEREST” ARE PRIVILEGED
Recognizing that the privilege rules promulgated by the Supreme Court “remain of considerable utility as standards”, the United States District Court for the Eastern District of New York noted that the attorney-client privilege would attach to prevent disclosure of communications by an individual “to a lawyer representing another in a matter of common interest”.
U.S. v. Mackey, 405 F. Supp. 854, 858 (E.D. N.Y. 1975).
However, disclosures to third parties who do not have a common interest with the client waives the privilege.
Oak Industries v. Zenith Industries, 532 N.E.2d 298 (Ill. 1988).
“Sharing confidential information with a third party who had a ‘common legal interest’ does not waive the attorney-client privilege. The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.” Oak Industries v. Zenith Industries, 532 N.E.2d 298 (Ill. 1988).
The “sharing of information between counsel for parties having common interest should not destroy the work product privilege”.
See In Re Auclair, 961 F.2d 65, 70 (5th Cir. 1992). “It necessarily follows that when more than one person seeks consultation with an attorney on a matter of common interest, the parties and the attorney may reasonably presume that the parties are seeking representation of a joint matter . . . [as such] communication is protected by attorney-client
privilege…… ” In Re Auclair, 961 F.2d at 70.
Duplan Corporation v. Deering Milliben, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974);
Continental Oil Company v. U.S., 330 F.2d 347 (9th Cir. 1964);
Hunydee v. U.S., 355 F.2d 183, 185 (9th Cir. 1965);
Hyd Const. Co. v. Coehring Co., 455 F.2d 337 (5th Cir. 1972);
U.S. v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied, 444 U.S. 833 (1979) (covering communications with attorney for common interest party in joint effort);
In re Grand Jury Subpoena, 406 F. Supp. 381 (S.D.N.Y. 1975);
In re LTV Securities Litigation, 89 F.R.D. 595, 604 (N.D. Tex. 1981).
“An examination of the few cases dealing directly with the question of privilege based upon the attorney-client relationship would seem to indicate that persons represented by different attorneys but conducting a ‘joint defense’ may pool information without waiving this privilege.” Transmirra Products Corp. v. Monsanto Chemical Co., 26 F.R.D. 572, 576-77 (S.D.N.Y. 1960).
This privilege applies to all attorneys and all clients who share confidential information.
Wilson P. Abraham Copstruction Corp. v. Armco Steel Corp, 559 F.2d 250 (5th Cir. 1977).
Indeed, the main purpose for-the creation of the attorney-client privilege is to allow just such communications to be made in the interest of establishing a legal defense”.
Duplan Corporation v. Deering Milliben, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974).
PRIVILEGE PROTECTS COMMUNICATIONS AT MEETING BETWEEN “PERSONS SUBJECT TO POSSIBLE INDICTMENT” AND THEIR LAWYER
It is well recognized that the privilege protects communications “[w]here two or more persons who are subject to possible indictment in connection with the same transactions make confidential statements to their attorneys”.
Hunydee v. U.S., 355 F.2d 183, 185 (9th Cir. 1965).
“How well could a joint defense proceed in the light of each co-defendant’s knowledge that any one of the others might trade resultant disclosures to third parties as the price of his own exoneration…?” In re Grand Jury Subpoena, 406 F.Supp. 381 (S.D. N.Y. 1975).
And such “privilege belongs to each and all of the clients and should not be viewed to have been waived without the consent of all of them”. Chahoon v. Commonwealth, 62 Va. 1036, 142 (Va. 1871).
The attorney-client privilege has generally been held inapplicable where advice is sought to assist, further, or induce a crime.
U.S. v. Berry, 627 F.2d 193 (9th Cir. 1980);
U.S. v. Aldridge, 484 F.2d 655 (7th Cir. 1973);
U.S. v. Freidman, 445 F.2d 1076 (9th Cir. 1971);
Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970).
But see BP Alaska Exploration, Inc. v. Superior Court, 245 Cal.Rptr. 682, 199 Cal. App.3d 1240 (Cal.App. 5 Dist. 1988) (holding under California state law, crime fraud exception to attorney-client privilege does not apply to documents containing attorney work-product).
This exception has been held to render the attorney-client privilege inapplicable even where the attorney is unaware of any ongoing criminal or fraudulent purpose on the part of the client.
U.S. v. Hodge and Zwieg, 548 F.2d 1347 (9th Cir. 197);
In re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (5th Cir. 1981);
U.S. v. Pavlick, 680 F.2d 1026, 1028 (5th Cir. 1982) (en banc);
In re Grand Jury Proceedings (Damore), 689 F.2d 135 (11th Cir. 1982).
But see State v. Robinson, 537 So.2d 1128 (Fla. App. [2d Dist.] 1979) (stating the very unlawful nature of the defendant’s conduct gave rise to the conclusion that it must have been undertaken in reliance on the confidential marital communication privilege).
The “crime-fraud” exception to the attorney-client privilege applies, exposing the client’s communications with his or her attorney, even though the “crime” or “fraud” is that of the law firm, unrelated to the client.
In re Impounded Case (Law Firm), 879 F.2d 124 (3d Cir. 1989).
The Government bears the burden of demonstrating the existence of the crime or fraud and that the communications were made with respect to, in furtherance of, or to induce the illegal acts involved.
Clark v. U.S., 289 U.S. 1, 15 (1933);
Matter of Walsh, 623 F.2d 489 (7th Cir. 1980);
In re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (5th Cir. 1981);
U.S. v. Friedman, 445 F.2d 1076, 1086 (9th Cir. 1971).
The standard has been held to be a “prima facie showing that [the attorney] was retained in order to promote intended or continuing criminal or fraudulent activity”.
In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1982) (en banc);
In re Grand Jury Proceedings (Damore), 689 F.2d 1351, 1352 (11th Cir. 1982) (stating “[t]his Court is not bound by Pavlick . . . but we approve its reasoning”).
At the very least, the Government must be able to demonstrate a connection between the attorney’s services sought by this client and the criminal enterprise.
In re Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981).
A strong suspicious appearance that the attorney’s services are somehow connected with the crime or fraud is insufficient to destroy the attorney-client privilege.
In re Grand Jury Proceedings (Fine), 641 F.2d 199 (5th Cir. 1981);
In re Grand Jury Proceedings (Lawson), 600 F.2d 215, 218-19 (9th Cir. 1979).
“As a matter of law, these …facts alone are inadequate to serve as the basis for a prima facie showing that [advice was sought] to further a criminal enterprise. These facts may support a strong suspicion, which is often enough for police and prosecutors, but it is not enough for courts.” In re Grand Jury Proceedings, 600 F.2d 215, 218-9 (9th Cir. 1979). In re Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981).
However, the Fifth Circuit, at least intimates such “conspiratorial agreement” by the clients to prospectively provided counsel may be inferred from “custom or a prior course of conduct toward other apprehendees”.
In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1981).
” ‘where the government takes a prima facie showing that an agreement to furnish legal assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege to the identity of him who foots the bill and this even though he be a client of the attorney and the attorney unaware of the improper arrangement. Such an agreement, of course, need only be an effective one, need not be express, and might in a proper case be found to arise even from a custom or a prior course of conduct toward other apprehendees.” In re Grand Jury Proceedings (Pavlick), 680 F.2d at 1029.
One circuit has even held that carrying the name and address of a criminal defense attorney when arrested is circumstantial evidence of consciousness of guilt.
U.S. v. Tille, 729 F.2d 615 (9th Cir. 1984).
IN CAMERA EXAMINATION
MAY “PRIVILEGED COMMUNICATION” ITSELF BE CONSIDERED IN DETERMINING ITS OWN ADMISSIBILITY?
The United States Supreme Court recently addressed the issue of whether a court may consider the privileged material itself in determining whether it is admissibility in U.S. v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 105 L.Ed.2d 469 (1989). The Court held that an “in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception …however …before a district court may engage in “in camera” review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that established showing …may be met by using any relevant evidence, lawfully obtained, privileged.” Zolin, 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed. 2d 469 (1989) (emphasis supplied).
See In re Grand Jury Proceedings, 867 F.2d 539 (9th Cir. 1989) (holding an in camera inspection available for attorney-client privilege and work product privilege; target of grand jury subpoena need not be alerted to inspection).
PRELIMINARY REQUIREMENT OF RELEVANCY
While some circuits require a preliminary showing of the relevancy of any testimony regarding such matters,
In re Grand Jury Proceedings (Schofield, II), 507 F.2d 963 (3d Cir.), cert. denied, 421
U.S. 1015 (1975) (stating subpoenaed items are required to be (1) relevant to an investigation, (2) property within the grand jury’s jurisdiction, and (3) not sought primarily for another purpose);
In re Grand Jury Subpoena (Legal Services Center), 615 F. Supp. 958, 963 (D.C. Mass. 1985).
others have not required such a showing as a prerequisite to compelling counsel’s testimony.
U.S. v. Guerrero, 567 F.2d 281 (5th Cir. 1978);
In re Grand Jury Proceedings, 694 F.2d 1258 (11th Cir. 1982);
In re Grand Jury Subpoena (Battle), 748 F.2d 327, 330 (6th Cir. 1984). PRELIMINARY REQUIREMENT OF NEED
In addition to a “relevancy” requirement the Fourth Circuit has required a showing that there exists “an important need for the information sought”.
In re Special Grand Jury (Harvey), 676 F.2d 1005, 1011 (4th Cir. 1982). The prosecution must address two inquiries when making a showing of need:
- Is the information sought necessary or important to the grand jury investigation? and
- Is the subpoenaed attorney the best or only source for the information? Supra, In re Special Grand Jury (Harvey), 676 F.2d at 1011 n.6.
See also In re Grand Jury Subpoena (Legal Services Center), 615 F. Supp. 958, 963 (D.C. Mass. 1985);
In the Matter of Joseph Nackson, Esq., 534 A.2d 65 (N.J.App. 1987) (Stern, J.) (finding that the attorney-client privilege and coinciding need for confidentiality presented issues of Constitutional dimensions directly involving the right to effective assistance of counsel).
“[W]hen there are less intrusive means for obtaining information necessary to return an indictment against the client of an attorney, those means must be pursued to avoid any infringement on the cherished Sixth Amendment and State Constitutional right to counsel ” Id.
But see In re Grand Jury Subpoena Served Upon John Doe, Esq., 781 F.2d 238 (en banc) overturning a panel decision, In re Grand Jury Proceedings (Doe), 759 F.2d 968 (2d Cir. 1985) (noting panel had imposed requirements of a particularized need and the information’s unavailability from a non-attorney source). ATTORNEY SELF-DEFENSE EXCEPTION
This exception “includes the attorney’s right to disclose confidential attorney-client communications where and to the extent necessary in defense of a civil charge of wrongdoing asserted by a third party, i.e. not the client”. In re National Mortgage Equity Corp. Mortgage Pool Certificates Securities Litigation, 857 F.2d 1238 (9th Cir. 1988) (stating law firm and client charged with fraud arising out of client’s business activities).
GRANT OF IMMUNITY TO CLIENT DOES NOT DESTROY ATTORNEY-CLIENT PRIVILEGE
Since the policies underlying the attorney-client privilege go beyond merely the client’s Fifth Amendment privilege against self-incrimination [i.e. to encourage frank discussions between client and counsel], the privilege should not be destroyed by any grant of immunity to the client.
U.S. v. Pappadio, 346 F.2d 5 (2d Cir. 1965), vacated on other grounds by Shillitani v. United States, 384 U.S. 364, 365 (1966).
But see In re Witness Before the Grand Jury, 631 F. Supp. 32 (E.D. Wis. 1985) (stating privilege not a basis for client’s refusal to testify in grand jury investigation of his attorney).
Further, for the same reason that a grand jury who hears a witness’ immunized testimony should not be able to indict; a grand jury that hears incompetent testimony may not itself violate a valid privilege.
U.S. v. Garrett, 797 F.2d 656 (8th Cir. 1986);
U.S. v. Beery, 678 F.2d 856, 859-60 (10th Cir. 1982), cert. denied, 471 U.S. 1066, 105
S.Ct. 2142 (1985);
U.S. v. Helstoski, 635 F.2d 200, 203-05 (3d Cir. 1980).
STATE CHALLENGE OF ATTORNEY’S GRAND JURY SUBPOENA
In Texas, an attorney is incompetent to testify as to any fact which came to his knowledge by reason of the attorney-client relationship. However, the attorney has been required by one federal court to assert the attorney-client privilege on a document by document basis.
In re Grand Jury Subpoena, 831 F.2d 225 (11th Cir. 1987). TEX. CODE CRIM. PRO. Art. 38.10 provides in part:
“All Other Competent Witness. All other persons …whatever may be the relationship between the defendant and witness, are competent to testify, except that an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.” (emphasis added).
“A client has a privilege to prevent the lawyer or the lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney client relationship.”
Courts in Texas have applied this principle, holding that knowledge of an attorney as to the location of a Deed of Trust relevant to a criminal trial was privileged in a criminal trial.
Downing v. State, 136 SW 471 (Tex.Cr.App. 1911).
Texas Courts have held that the payment and amount of attorney’s fees is within the proscription prohibiting such testimony.
Holden v. State, 71 SW 600 (Tex.Cr.App. 1903).
“Appellant …excepted to the action of the court, requiring M.C. Cullen, an attorney at law, and who had previously represented defendant in this case as her counsel and attorney, to testify that when defendant employed him she gave him $10 as a fee. She paid him two $5 bills. This was objected to on the ground that it was a privileged communication between attorney and client. The court overruled this objection, and witness was compelled to testify…. This testimony should not have been admitted. There was no dispute as to the relation of attorney and client, and the evidence introduced was in fact transpiring by virtue of that employment And it has been expressly held that it does not matter whether the information has been derived from a client’s words, actions, or personal appearance.”
Holden v. State, 71 SW 600, 601 (Tex.Cr.App. 1903).
This rule, has been codified in the Goldstein privilege at Art 38.38 of the Texas Code of Criminal Procedure.
Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense in a criminal case, neither the judge nor the attorney representing the state may comment o n the fact that the defendant has contacted an attorney in the case
Cf. Braesfield v. State, 600 S.W.2d 288, 295 (Tex.Cr.App. 1980) (holding that there the attorney had given no incriminating testimony, and that testimony relating to the “fact” that the witness’ client was in a particular city was “harmless” since several others had testified to same).
CODE OF PROFESSIONAL RESPONSIBILITY
In Massachusetts the local rule of professional conduct was amended in 1997 to impose a requirement on the prosecutor seeking to subpoena an attorney for information regarding a past or present client. The local rule (3.8(f)) stated that a prosecutor could only seek out the information concerning an attorney’s client if the information was essential and could not be obtained anywhere else, and court approval was obtained. See Stern v. District Court for District of Massachusetts, 214. F.3d 4, 8 (1st Cir. 2000). However, the 1st Circuit in Stern held that rule 3.8(f) altered the grand jury’s historic role, by placing it under overly intrusive court supervision, curbing its broad investigative powers, reversing the presumption of validity given to grand jury subpoenas, undermining secrecy of the proceedings and creating procedural delays. Stern v. District Court for District of Massachusetts, 214 F.3d 4, 16 (1st Cir. 2000).
See generallyUS Court upholds ruling on lawyers: subpoenas seeking information on clients need judicial approval, BOSTON GLOBE, Nov. 3, 1987, at 26.
DISTINCT PRIVILEGE UNDER “WORK-PRODUCT DOCTRINE”
The “work-product doctrine” precludes compelled disclosure of notes, work product, witness statements and interviews conducted by an attorney preparing for trial, or the adversary proceeding. This is the rare circumstance of the presidential pardon process, a district court held that the attorney’s work papers used to prepare a pardon application were not protected by the work product doctrine. The court reasoned that in such circumstances the lawyers were acting as lobbyists who had no adversary and thus the work product did not apply. The lawyers were not acting as legal counsel or providing legal advice in the traditional sense. In Re Grand Jury Subpoena date March 9, 2002, M-11-189 (D.C.), 179 F.Supp.2d 270 ( S.D. N.Y. 2001)
In Hickman v. Taylor, the Supreme Court recognized that for an attorney to faithfully perform his duties in protecting the rights and interests of his client it is essential that the lawyer work with a degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Hickman v. Taylor, 329 U.S. 495, 507 (1947).
See also F.T.C. v. Grolier, Inc., 103 S. Ct. 2209 (1983).
An attorney must be entitled to adequately prepare his case by interviewing relevant witness.
Hickman v. Taylor, 329 U.S. 495, 510, 511 (1947);
Kent Corp. v. N.L.R.B., 530 F.2d 612 (5th Cir. 1976);
U.S. v. Nobles, 422 U.S. 225 (1975);
Upjohn v. U.S., 101 S. Ct. 677 (1981).
WORK PRODUCT DOCTRINE PROTECTS ADVERSARY PROCESS ITSELF
The doctrine focuses upon the integrity of the adversary process itself, safeguarding the vigorous representation of a client’s cause from the debilitating effects by counsel.
U.S. v. American Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980);
Hercules v. Exxon Corp., 434 F. Supp. 136 (D. Del. 1977).
WORK-PRODUCT DOCTRINE BROADER THAN ATTORNEY-CLIENT PRIVILEGE
“Work-product doctrine” is broader than the “attorney-client privilege” in that the communication may be immune from disclosure as work product even though it was not made to the attorney by his or her client.
Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977);
In re Grand Jury Proceedings, 473 F.2d 840 (8th Cir. 1973) (stating even if not communicated in confidence).
See also Notes of Advisory Committee to 1970 Amendments to FED. R. CRIM. PRO.
DOCTRINE PROTECTS ATTORNEY NOT CLIENT
Unlike the attorney-client privilege7, the “work-product doctrine” is designed to protect the attorney, not the client.
In re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979);
First Wisc. Mortgage v. First Wisc. Corp., 86 F.R.D. 160 (E.D. Wis. 1980). DOCTRINE APPLICABLE TO CRIMINAL PROCEEDINGS
As one commentator has noted, “[i]n criminal litigation, the role of the doctrine in insuring the proper functioning of the judicial system is even more vital than in the civil area”,
U.S. v. Nobles, 422 U.S. 225, 238 (1975);
In re Special Sept. 1978 Grand Jury, 640 F.2d 49 (7th Cir. 1980), reflecting both Fifth and Sixth Amendment concerns;
Matter of Rosenblum, 401 F. Supp. 807 (S.D.N.Y. 1975).
DOCTRINE APPLIES TO TESTIMONY RESPECTING A WITNESS’ ORAL STATEMENTS TO AN ATTORNEY PREPARING HIS CASE FOR TRIAL
In addition to the documents and “tangible things” specifically set out in FED. R. CRIM. PRO. Rule 26 the “work-product doctrine” is applicable to protect against disclosure of oral statement made by a witness to an attorney in anticipation of litigation.
Hickman v. Taylor, 329 U.S 495, 512 (1947);
Phoenix Nat. Corp. v. Bowater United King Paper, 98 F.R.D. 669 (N.D. Ga. 1980);
Ford v. Phillips Electrical Instruments Co., 82 F.R.D. 359 (E.D. Pa. 1979);
In re Anthracite Coal Antitrust Litigation, 81 F.R.D. 516, 522 (M.D. Pa. 1979);
Upjohn v. U.S., 101 S. Ct. 677 (1981).
“But as to oral statements made by witnesses [to an attorney] …we do not believe that any The “attorney-client privilege” belongs to the client, not his attorney. US v. Juarez, 573 F.2d 267 (5th Cir. 1978); Hett v. US, 353 F.2d 761 (9th Cir. 1965); US v. Hankins, 581 F.2d 431 (5th Cir. 1978).
showing of necessity can be made under the circumstances of this case so as to justify production.” Hickman v. Taylor, 329 U.S. 495, 512-13 (1947) (noting that to require an attorney to testify or respect what witnesses have told him would cause the standards of the profession to suffer).
In fact, the Jenks Act [18 U.S.C. § 3500] as well as FED. R. CRIM. PRO. Rule 26 which provide for disclosure of a witness’ written or recorded statement, expressly excludes summarized notes of a witness interview.
In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973);
In re Grand Jury Investigation, 412 F. Supp. 943, 949 (E.D. Pa. 1976);
In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (2d Cir. 1979). CRIME-FRAUD EXCEPTION
To apply, the party raising the exception must show prima facie that a crime or fraud exists, and that there is a relationship between the work product sought and the alleged crime or fraud. Pandick, Inc. v. Rooney, F.2d (Ill. 1988).
CLIENT’S LOCATION MAY BE A PRIVILEGED COMMUNICATION
With regard to whether the client’s location is a communication covered by attorney-client privilege, the answer appears to be the proverbial “that depends.” For example, in Matter of Grand Jury Subpoenas Served Upon Field, 408 F. Supp. 1169 (S.D.N.Y. 1976), the Court noted that:
“In this Court’s view, a determination of whether the client’s whereabouts must be disclosed will depend on an analysis
of the facts of the case and the nature of the communication.”
Matter of Grand Jury Subpoenas Served Upon Field, 408 F. Supp. 1169, 1172-73 (S.D. N.Y. 1976).
The Field court went on to hold that there the:
“ . . . attorneys learned of [the client’s] whereabouts precisely because he sought their advice with respect to that matter. The Court concludes that on the facts of the case, the residence and whereabouts of [the client] were communicated to these attorneys in confidence, as an incident to the obtaining of legal advice and as part of an attorney-client relationship. Therefore, this is a Communication within the scope of the privilege.” Matter of Grand Jury
Subpoenas Served Upon Field, 408 F. Supp. 1169, 1172-73 (S.D. N.Y. 1976).
Again, in In Re Stolar, the Court held that:
“During the course of that conversation [with his lawyer], Shepard gave the attorney his telephone number. As part of the attorney-client discussions which thereafter took place. Sheppard also disclosed his home address………….. The Court is of the opinion that the information sought was communicated to the attorney confidentially and solely for the purpose of receiving legal advice. Under the circumstances, Shepard had a legitimate basis to expect that such information disclosed to his attorney would not be revealed.” In Re Stolar, 397 F. Supp. 520, 524 (S.D. N.Y. 1975).
But see Sullivan v. Carrigan, 10 F.R.Serv.3d 431 (E.D. Pa. 1988) (holding that a client’s whereabouts did not “go to the heart of the legal advice sought”).
FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED PRODUCTION OF “PRIVATE PAPERS”
While the content of voluntarily prepared business records is not privileged, U.S. v. Doe, 465 U.S. 605 (1984); Fisher v. U.S., 425 U.S. 391 (1976), the privilege may apply to the act of producing them.
“A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect.” U.S. v. Doe, 465 U.S. 605, 612 (1984).
In re Grand Jury Subpoena Duces Tecum, 754 F.2d 918 (11th Cir. 1985).
“[tlhe Fifth Amendment .–does not alone preclude production by an attorney of documents concerning his client. See Fisher, 425 U.S. at 396-97; Couch v. United States, 409 U.S. 322, 328 (1973); however, …if under the circumstances the attorney client privilege is also implicated, the Fifth Amendment can operate to provide a basis for quashing a subpoena of certain types of materials . . .
‘when the client himself would be privileged from production of the document, either as a party to common law . . . or as exempt from self-incrimination……. ‘”
If a subpoena compels production by a collective entity, one circuit requires that it appoint a custodian to produce the documents.
In re Two Grand Jury Subpoenas Duces Tecum, 769 F.2d (2d Cir. 1985);
In re Grand Jury Subpoenas Issued to 13 Corporations, 775 F.2d 43 (2d Cir. 1985). But, the sole practitioner need not do so.
(Under Seal) v. U.S., No. 86-883 (E.D. N.Y. 1986).
However, compelling an accused to sign a consent form has been held not to fall within the act of production doctrine.
U.S. v. Ghidoni, 732 F.2d 814, 816 (11th Cir. 1984);
In re Grand Jury Proceedings (Thier), 767 F.2d 1133, 1134 (5th Cir. 1985). FOREIGN LAW
Even where foreign law provides “a broader privilege for the attorney-client relationship than is found in American Law”, and even though foreign counsel may be subjected to sanctions for violation of that privilege, same does not prevent enforcement of a federal grand jury subpoena. In re Grand Jury Proceedings (Bowl), 694 F.2d 1256 (11th Cir. 1982).
See also In re Bank of Nova Scotia, 186 F.2d 817 (11th Cir. 1984).
And an immunized witness may only refuse to answer on the grounds that the answer might incriminate him or her under foreign law where a foreign prosecution is pending or imminent.
In re Grand Jury Proceedings (Chevrier), 748 F.2d 100 (2d Cir. 1984). MARITAL PRIVILEGES
[ADVERSE SPOUSAL TESTIMONY VS. MARITAL COMMUNICATIONS]
The so-called marital or spousal privilege could be said to encompass two distinct protections: the “privilege against adverse spousal testimony” which is separate and apart from “…the independent rule protecting confidential marital communications”.
Trammel v. U.S., 445 U.S. 40 (1980);
In re Grand Jury Proceedings (Hermann), 664 F.2d 423 (5th Cir. 1981);
U.S. v. Burton, 631 F.2d 280, 281-82 (4th Cir. 1980);
U.S. v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977);
U.S. v. Mendoza, 574 F.2d 1373, 1379 (5th Cir. 1979);
U.S. v. Entreben, 624 F.2d 597, 598 (5th Cir.), reh. denied, 629 F.2d 1350 (1980).
“This Court previously has held “that conversations between husband and wife about crimes in which they are jointly participating when the conversations occur are not marital communications for the purpose of the marital privilege, and thus do not fall within the privilege’s protection of confidential marital communications.” U.S. v. Entreben, 624 F.2d 597, 598 (5th Cir. 1980).
The privilege against adverse spousal testimony belongs to the witness spouse. Trammel
- U.S., 445 U.S. 40, 53 (1980).
“We conclude that the existing rule should be modified so that the witness spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.”
The privilege against adverse spousal testimony “. . .is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications”. Trammel v. U.S., 445 U.S. 40, 51 (1980). Unlike the attorney-client, physician-patient, or priest-penitent privileges, the privilege against adverse spousal testimony “is not limited to confidential communications”. Trammel v. U.S., 445 U.S. at 51.
See State v. Robinson, 376 S.E.2d 606 (W.Va. 1988) (noting that defendant’s actions, allegedly growing marijuana in wife’s presence, were subject to marital privilege).
NEED NOT BE CONFIDENTIAL
While the “confidential marital communications privilege” protects only “communications between the spouses” rather than “objective facts,”
U.S. v. Cameron, 556 F.2d 752, 756 (5th Cir. 1977);
Percira v. U.S., 347 U.S. 1 (1954).
. . . the “privilege against adverse spousal testimony” covers both “criminal acts and of communications made in the presence of third persons”. Trammel v. U.S., 445 U.S. at 51.
NO PRIVILEGE IF MARRIAGE DEFUNCT
A defendant cannot use the privilege to keep an ex-spouse or an estranged spouse from testifying.
U.S. v. Roberson, 859 F.2d 1376 (9th Cir. 1988) (holding that privilege is inapplicable to communication that occurred two months after defendant had filed for divorce and moved out).
CRIMINAL ENTERPRISE EXCEPTION APPLIES ONLY TO “CONFIDENTIAL COMMUNICATIONS PRIVILEGE” NOT “ADVERSE TESTIMONIAL PRIVILEGE”
The so-called “criminal enterprise exception”, which excludes from protection “conversations between husband and wife about crimes in which they are jointly participating when the conversations occurs”, applies only to the privilege’s “protection of confidential marital communications”. U.S. v. Mendoza, 574 F.2d 1373, 1381 (5th Cir. 1979); U.S. v. Entreben,, 624 F.2d 597, 598 (5th Cir.), reh. denied, 629 F.2d 1350 (1980).
Thus, contrary to the rule with respect to the “confidential marital communications privilege”, even where “the spouses have been partners in crime” and the witness spouse “was allegedly involved in the criminal acts of her husband”, the “privilege against adverse spousal testimony” is not abrogated and same constitutes “no exception to the privilege”. Appeal of Malfitano, 633 F.2d 276, 277-80 (3d Cir. 1980) (noting well-reasoned discussion).
TESTIMONY NEED NOT BE TECHNICALLY INCRIMINATING TO BE “ADVERSE”
In order for the witness to invoke the “adverse spousal testimony” privilege the inquiry need only indirectly inculpate the non-testifying spouse.
In re Grand Jury (Malfitano), 633 F.2d 276, 180 (3d Cir. 1980);
U.S. v. Armstrong, 476 F.2d 313, 315-16 (5th Cir. 1973);
In re Grand Jury Matter, 673 F.2d 688 (3d Cir. 1982). CRUEL TRILEMMA
As one court noted:
“A witness before a grand jury should not be compelled to choose among perjury, contempt, or disloyalty to a spouse”. In re Grand Jury Investigation, 603 F.2d 786, 789 (9th Cir. 1979).
ESTABLISHING PRIVILEGE BY IN CAMERA PROFFER
The appropriate procedure for establishing a privilege may be in camera, ex parte, proffer to the court outside the presence of Counsel for the Government, in order that one not be required to waive his or her privilege in their effort to assert same.
U.S. v. Kampiles, 609 F.2d 1233, 1248 (7th Cir. 1979);
U.S. v. Brown, 539 F.2d 467, 470 (5th Cir. 1976);
U.S. v. Bocra, 623 F.2d 281, 285 (3d Cir. 1980);
In Re Investigation (Lynchburg), 563 F.2d 652, 654 (1977).
“In response to the Government’s Motion to disqualify the two attorneys [for conflict of interest], the court examined five of the witnesses . . . in camera and ex parte, at Appellant’s [the criminal defendant’s] request. It sealed the record . . . also at appellant’s request.” Id.
The Supreme Court has indicated that it is the “duty of the District Court to treat …material as presumptively privileged upon receiving a claim of privilege” and then to order “an in camera examination” of that material in order to ascertain the validity of the claim and provide for a meaningful appellate review:
“Upon receiving a claim of privilege …it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the prejudicial material was essential to the justice of the [pending criminal] case …here the District Court treated the material as presumptively privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in-camera examination of the subpoenaed material.”
(Emphasis supplied) U.S. v. Nixon, at 713-14. FAMILY PRIVILEGE
Case law recognizing a parent-child privilege:
In re Grand Jury Proceedings (Greenberg), 11 Fed.R.Ev.Serv. 579 (D.C. Conn. 1982) (noting mother’s refusal to disclose confidential communications with daughter);
People v. Fitzgerald, 422 N.Y.2d 309, 313 (1979);
Application of A&M, 403 N.Y.2d 375 (1978).
“The parent-child privilege did not develop because as a practical matter it was little needed. The catalyst for the aggressive lawmaking of Agosto was a new law enforcement tactic implemented by federal prosecutors and investigators in Nevada . . . The problem then, was to substantiate legally the existence of a privilege for which there has never been explicit authority. Yet, the very absence of such explicit authority appears to be testimony to the pervasiveness and depth of our society’s conviction that the parent-child bond should be free from state intrusion.” Kandoian, The Parent-Child Privilege and the Parent-Child Crime: Observations on State v. DeLong and In re Agosto, 36 MAINE L. REV. 59, 83 (1984).
Cases refusing to recognize a parent-child privilege:
Recent attention has been focused on the lack of a parent-child privilege which the specter of Monica Lewinski’s mother being called to testify before the grand jury about private conversations her daughter had with her concerning intimate relations with the President of the United States. The D.C. district court declined to recognize a parent child privilege and compelled the testimony. This unseemly conduct by the independent counsel has lead to grass roots efforts to establish the parent child privilege. David Savage, Legacy of a Scandal, Presidency and the People: Impeachment case puts in doubt. L.A. Times, Feb, 13, 1999; Harvey Silvergate, Zippergate Update: Monica’s Reading List. The Boston Pheonix, April 3, 1998; Investigating the President: The Newsletter with Jim Lehrer Transcript, Feb. 10, 1998.
In Re Grand Jury, 103 F.3d 1140, 1146-47 (3d Cir. 1997) (denying parent-child privilege stating that no state within the Third Circuit has recognized such a privilege).
Port v. Heard, 764 F.2d 423 (5th Cir. 1985);
In re Kinoy, 326 F. Supp. 400 (1970);
U.S. v. Penn, 647 F.2d 876 (9th Cir. 1980) (noting 5-4 decision, the court narrowly rejected a derivative claim of parent-child privilege);
In re Grand Jury Proceedings (Starr), 647 F.2d 511 (5th Cir. 1981);
United States ex rel. Riley v. Franzen, 653 F.2d 1153 (7th Cir. 1981) (dicta);
U.S. v. Jones, 683 F.2d 817 (4th Cir. 1982) (rejecting privilege on grounds there was no showing that the testimony would be “adverse” to the parent);
In re Matthews, 714 F.2d 223 (2d Cir. 1983) (holding no “in law” privilege). PSYCHOTHERAPIST-PATIENT PRIVILEGE
The New Jersey District Court has recognized a psychotherapist patient privilege protecting confidential communications of psychotherapy patients in federal grand jury investigations. In re Grand Jury Subpoena, 710 F. Supp. 99 (D.N.J. 1989) (following a Sixth Circuit decision, disagreeing with the Eleventh Circuit)