GENERAL RULE [FED. R. EVID. RULE 501]
Except as otherwise required by the Constitution of the United States or provided by Act of Congress privileges shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. See Trammel v. U.S., 445 U.S. 40, 100 S.Ct. 906 (1910) [inter-spousal privilege is that of witness spouse who may neither be compelled to testify nor foreclosed from testifying]; see also Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987) [the privilege against self incrimination was not violated when the State, in a murder trial, offered for rebuttal purpose part of a psychiatric report about the defendant as the defendant has both requested that examination and had presented a defense of “extreme emotional disturbance]; Schneider v. Lynaugh, 835 F2d.570 (5th Cir. 1988) [requested psychiatric examination is admissible and does not violated Fifth Amendment privilege against self-incrimination].
But see Park v. Montana 6th Judicial Dist. Court, Park, Cty., 961 P.2d 1267 (Mont. June 25, 1998).
In Park, the Court disagreed that Buchanan stands for the idea that a defendant who has raised his mental state as an issue waives his Fifth Amendment privilege for all purposes. He can decide with whom and in what terms he discusses such potentially incriminating matters as the events surrounding the charges against him.
PHYSICIAN-PATIENT AND PRIEST-PENITENT PRIVILEGE
The Supreme Court has recognized:
“The right of privacy has no more conspicuous place than in the physician-patient relationship unless it be in the priest-penitent relation.” Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).
See also In re Grand Jury Subpoena, 710 F. Supp. 999 (D.N.J. 1989) [psychotherapist- patient privilege protecting the confidential communications of psychotherapy patients recognized in federal grand jury investigation].
However, in the context of a grand jury investigation at least one court that “principles of common law” do not allow for recognition of the psychotherapist – patient privilege. See Tumlinson v. State, 663 S.W.2d 539 (Tex.App. – Dallas 1984, pet. for discr. rev. ref=d), appeal after remand, 757 S.W.2d 440 (Tex.App. Dallas B 1988, pet. for discr. rev. refd) [mental health privilege repealed in interim between first trial and second did not affect a substantive right of the Defendant for ex post facto analysis. The admission of psychotherapist’s testimony at the second trial resulted from a change in a procedural rule which only effected an enlargement of the class of witnesses who could testify at a trial].
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); 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.), cert. denied, 439 U.S. 988 (1978); U.S. v. Entreben, 624 F.2d 597, 598 (5th Cir. 1980), reh’g. denied, 629 F.2d 1350, cert. denied, 451 U.S. 971(1981).
“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).
See U.S. v. Koehler, 790 F2d 1256, 1258 (5th Cir. 1986) [describing the two distinct marital privileges the witness-spouse privilege, prevents the government from compelling a spouse to testify against his or her spouse. In federal court, however, the Supreme Court has held that this privilege may be asserted only by the witness spouse, not the defendant spouseY[T]he second marital privilege is the spousal communication privilege. This privilege protects communications “uttered in private between husband and wife.” The privilege applies only to communications, and not to acts.]
ADVERSE TESTIMONIAL PRIVILEGE VESTS IN TESTIFYING SPOUSE
The privilege against adverse spousal testimony belongs to the witness spouse.
Trammel v. U.S., 445 U.S. at 53.
“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.” Trammel v. U.S., 445 U.S. at 53.
COVERT ACT AND COMMUNICATIONS
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. at 51. 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.
NEED NOT BE CONFIDENTIAL
And while the “confidential marital communications privilege” protects only “communications between the spouses” rather than “objective facts”, Percira v. U.S., 347 U.S. 1, 74 S.Ct. 358 (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.
PRIVILEGE APPLIES TO MATTERS PRIOR TO MARRIAGE
Absent a sham or collusive marriage the privilege against adverse spousal testimony applies without regard to whether testimony concerns matters prior to the marriage. In re Grand Jury Proceedings, 640 F. Supp. 988 (E.D. Mich. 1986).
But see U.S. v. Roberson, 859 F.2d 1376 (9th Cir. 1988) [although couple was still technically married the marital privilege did not apply as couple was irreconcilably separated at time of communication]; U.S. v. Singleton, 260 F.3d 1295 (11th Cir. 2001)[marital privilege not applicable to tape recording of conversation between couple who had permanently separated and for who there was no reasonable expectation of reconciliation].
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 occur”, applies only to the privilege’s “protection of confidential marital communications”. U.S. v. Mendoza, 574 F.2d 1373, 1381 (5th Cir.), cert. denied, 439 U.S. 988 (1978); U.S. v. Entrekin, 624 F.2d 597, 598 (5th Cir. 1980), reh’g. denied, 629 F.2d 1350, cert. denied, 451 U.S. 971(1981).
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) [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, 280 (3d Cir. 1980); U.S. v. Armstrong, 476 F.2d 313, 315-16 (5th Cir. 1973);
In re Grand Jury, 673 F.2d 688 (3d Cir. 1982).
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 (3d Cir. 1979).
The federal attorney-client privilege was designed to encourage and foster the candid disclosure of information essential to providing the effective assistance of counsel guaranteed an accused by the Sixth Amendment. Careful attention should be paid to the context in which attorney-client communications take place. In In re Grand Jury Subpoenas Dated March 9.2001, 179 F. Supp. 2d 270 (S.D. N. Y. 2001) the court concluded that the lawyers, seeking executive clemency from President Clinton for Marc Rich, were acting as lobbyists rather than lawyers. Thus Judge Chin held that the documents withheld under attorney-client and work doctrine privileges were subject to production in the grand jury probe.
ATTORNEY/CLIENT PRIVILEGE IS APPLICABLE TO GRAND JURY PROCEEDINGS
Privileges, see FED. R. EVID. Rule 501, such as the marital and attorney-client privilege, apply in Grand Jury proceedings. 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 ‘ 6002 et. seq. is coextensive with the witnesses’ Fifth Amendment privilege. Kastigar v. U.S., 406 U.S. 441 (1972). That is, an immunity grant only removes one’s protection under the Fifth Amendment, it does not preclude assertion of other valid privileges which may be applicable.
COMPELLING GRAND JURY WITNESS TO INVOKE ATTORNEY-CLIENT PRIVILEGE
A Pennsylvania state court recently held that a criminal defendant has a right to compel a witness to invoke the attorney-client privilege in front of a petit jury as part of his defense strategy to shift criminal responsibility to the testifying witness. Commonwealth v. Sims, 521 A.2d 391 (Pa. 1987).
“We recognize the firmly established principle that the prosecution in a criminal defense case may not call a witness who it has reason to believe will refuse to testify on the basis of a constitutional privilege against self-incrimination. [citations omitted] In those cases we said that such a tactic would unfairly prejudice the defendant by the innuendo of guilt by association. That reasoning is not applicable, however, where the defendant attempts to cross-examine a witness who has been called by the Commonwealth as the principal accuser against him. To insulate such a witness from having to invoke his privilege in the jury’s presence, as did the trial court in this case, unfairly bolstered the credibility of a witness whose testimony was crucial to the success of the prosecution. [FN1] There is nothing in the privilege or its purposes which militates against allowing the jury to at least know that a claimant of the privilege, while testifying as witness, has elected to withhold from the jury’s consideration possible previous statements made by him concerning the matter on trial. The communication itself is not revealed nor is the interest of the witness adversely affected thereby. For these reasons we are forced to conclude that the trial judge’s refusal to require Hilton to invoke the privilege in the presence of the jury was an unacceptable infringement upon appellant’s right of confrontation.” Commonwealth v. Sims, 521 A.2d 391 (Pa. 1987).
See In re Grand Jury Proceedings, 43 F.3d 966 (5 Cir. 1996) [holding that although documents were prepared by attorneys in contemplation of terminated criminal investigation of client for money laundering, documents continued to be protected by work-product privilege in subsequent broadened grand jury investigation of money laundering by client and others.]
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); 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 Before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984). An exception has been made where the existence of the attorney- client relationship might be incriminating in the very matter in which advice has been sought. In re Semel, 411 F.2d 195, 197 (3d Cir. 1969) [“[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).
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).
Both the Fifth and Eleventh Circuits have now limited the applicability of this exception to situations where the disclosure of a client’s identity and fee 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 (Damore), 689 F.2d 1351, 1252-53 (11th Cir. 1982) [citing Jones]; 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 fee 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 canvas 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(5th Cir. 1981).
Furthermore, the Fifth Circuit, at least intimates that a “conspiratorial agreement” by the clients to prospectively provide counsel to a fellow confederate in the event of his arrest 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 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(5th Cir. 1981).
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).
Rejected by 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).
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 “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 5th 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 creditable when it asserts that it sought only the fact of intervenor’s identity 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.
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 No. 83-2-35, 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 (4th Cir.), 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).
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. 1984), aff’d, 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. 1984), 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, 39 (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 MOORES
FEDERAL PRACTICE & 6.04 at 6-86 (1984).”
But see In re Grand Jury Subpoena Served Upon John Doe, Esq., 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.”
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).
The “sharing of information between counsel for parties having common interest should not destroy the work product privilege”.
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); 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, 576-7 (S.D. N.Y. 1960).
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 ATTACHES “FROM THE INITIAL SALUTATION AND GREETING ON”
The joint defense privilege attaches to communications between a lawyer and potential clients who are seeking representation “from the initial greeting and salutation on.” In re Grand Jury Proceedings, Jean Auclair, 961 F.2d 65, 70 (5th Cir. 1992). Just as with the attorney-client privilege, the defendant need not wait until the attorney has accepted the case before he can safely consider his communications privileged and confidential. Id. This complies with the ethical requirement that a lawyer learns the facts of the case and makes a determination whether any probable conflicts will arise from the representation of two people seeking advice in the same matter.
PRIVILEGE MUST BE WAIVED BY ALL DEFENDANTS
Once the joint defense privilege has attached, it cannot be waived unless all holders of the privilege (i.e., all the clients) agree to waive it. Chahoon v. Commonwealth, 62 Va. 822 (Va. 1872); In re Grand Jury Proceedings, Jean Auclair, 961 F.2d 65 (5th Cir. 1992).
WRITTEN AGREEMENT NOT NECESSARY
While the safest course is to enter into a formal written joint defense agreement before sharing information among defense counsel, such a document is not a vital element of the privilege. Cf. In re Grand Jury Proceedings, Jean Auclair, 961 F.2d 65 (5th Cir. 1992).
ONE WITH RETAINED COUNSEL IN A MATTER MAY NOT BE CONTACTED BY THE PROSECUTION
The ABA Code of Professional Responsibility expressly mandates that: “DR7-104. Communicating with One of the Adverse Interest.
“(A) During the course of his representation of a client a lawyer shall not:
“(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
What this means is that once a criminal defendant is represented by an attorney the Government may not communicate with that defendant unless his/her attorney is notified. See U.S. v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973). The Fifth Circuit has recognized that conduct which violates this Cannon of Ethics is reprehensible and suppression is the appropriate sanction. U.S. v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied sub nom, Brunk v. U.S., 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981) [noting the defendant relied solely on the violation of “ethical principle of the legal profession”].
“We agree that the conduct which occurred in this case was highly improper and unethical. …Suppression of the statements would probably have been the appropriate sanction in this case, were it not for the refusal of the government to use those statements The action that was taken in this case is truly reprehensible and taints the dignity of the offices of the U.S. Attorney, the DEA and the FBI.”
U.S. v. Killian, 639 F.2d at 210.
Whether DR7-104(A)(1) is violated pre or post indictment suppression is warranted.
U.S. v. Hammed, 858 F.2d 834 (2d Cir. 1988). “Moreover, we resist binding the Code’s applicability to the moment of indictment. The timing of an indictment’s return has substantially within the control of the prosecutor. Therefore, were we to construe the rule as dependant upon indictment, a government attorney could manipulate grand jury proceedings to avoid its encumbrances.” U.S. v. Hammad, 858 F.2d 834 (2d Cir. 1988).
At least one court has dismissed an indictment on the grounds of prosecutorial misconduct, where the prosecutor contacted represented defendants without their lawyers’ knowledge. United States v. Lopez, 765 F.Supp. 1433 (N.D.Ca. 1991).
“Relying on a faulty and tortured reading of existing authority, the Attorney General has issued a policy directive instructing attorneys of the Department of Justice to disregard a fundamental ethical rule embraced by every jurisdiction in this country. In the case at bar, the Attorney General’s policy resulted in both the intentional disregard of the court’s Local Rules by the Assistant United States Attorney and the loss by the defendant of his counsel of choice. This court will not allow the Attorney General to make a mockery of the court’s constitutionally- granted judicial powers. The title U.S. Attorney does not give the prosecutor a hunting license exempt from the ethical constraints of advocacy. [T]he court is convinced that no remedy short of dismissal will have any significant deterrent effect on future government misconduct of the type found in this case. Therefore, the court hereby exercises its supervisory power and DISMISSES the indictment of Jose Orlando Lopez.” Lopez, 765 F.Supp. At 1463.
Since the Lopez decision Congress enacted a statute, which makes the codes of ethics applicable to prosecutors, thus removing the Attorney General’s argument that the Supremacy Clause exempted government lawyers from ethical rules of professional conduct.
COMMUNICATIONS BETWEEN CORPORATIONS AND CORPORATE COUNSEL
While a corporate employee’s communications to the corporation’s legal counsel may be protected under the attorney-client privilege, one court has held that former corporate employees may not be protected. Connolly Data Systems, Inc. v. Victor Technologies, Inc., 114 F.R.D. 89 (S.D. Cal. 1987).
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, 1042 (Va. 1971).
However, the Supreme Court has held that the fact that a government witness posed as a defendant and attended joint meetings prior to and during trial did not violate other Defendant’s Sixth Amendment right to effective assistance of counsel or Fifth Amendment right to fair trial, where no showing could be made the prosecution was informed of or utilized any information gained by said witness in his capacity as a co-defendant.
Weatherford v. Bursey, 429 U.S. 545 (1977).
On the other hand, where it can be demonstrated the government has utilized an informant or other means to eavesdrop on privileged communications between a client and his attorney, same has been held to intrude upon and deprive the defendant of his right to effective assistance of counsel.
See Hoffa v. U.S., 385 U.S. 293 (1966);
U.S. v. Kliefgen, 557 F.2d 1293 (9th Cir. 1977);
U.S. v. Valencia, 541 F.2d 618 (6th Cir. 1976);
U.S. v. Zarzour, 432 F.2d 1 (5th Cir. 1970); Caldwell v. U.S., 205 F.2d 879 (D.C. Cir. 1953); Coplon v. U.S., 191 F.2d 749 (D.C. Cir. 1951);
U.S. v. Ostrer, 422 F. Supp. 93 (S.D. N.Y. 1976);
In re Bull, 123 F. Supp. 389 (D. Nev. 1954);
U.S. v. Levy, 577 F.2d 200 (3d Cir. 1977);
U.S. v. Rispo, 460 F.2d 965 (3d Cir. 1972);
U.S. v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976) [noting Government informant used as “sham” defendant in joint proceedings].
The attorney-client privilege has generally been held inapplicable where advice is sought to assist, further, or induce a crime.
U.S. v. Morales-Martinez, 672 F. Supp. 762 (D. Vt. 1987);
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).
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.
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, 135 (11th Cir. 1982).
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 facia 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) [ “This 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).
IN CAMERA REVIEW
In U.S. v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 105 L.Ed.2d 469, 490 (1989), the Supreme
Court, after first concluding that nothing in the Federal Rules of Evidence bars such use of in camera review, held that when a party alleging a crime-fraud exception to the attorney-client privilege requests an in camera review of the privileged material, that party must first show “a factual basis adequate to support a good faith belief by a reasonable person …that in camera review of the materials may review evidence to establish the claim that the crime-fraud exception applies”.
Once the party opposing the privilege has made such a showing, the district court, within its sound discretion, may conduct such an in camera review. Id.
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 at 204;
In re Grand Jury Proceedings, 600 F.2d 215, 218-9 (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, 218-19 (9th Cir. 1979).” In re Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981); but see In re Grand Jury Proceedings, 803 F.2d 493 (9th Cir. 1986) (“It is not the law that the requisites of the attorney-client privilege are met whenever evidence regarding the fees paid the attorney would implicate the client in a criminal offense regarding which the client sought the attorney’s legal advice . . . The attorney-client privilege protects a client’s identity only in limited circumstances where disclosure would convey the substance of a confidential professional communication between the attorney and the client.”).
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).
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 (3rd Cir.), cert. denied, 421 U.S. 1015 (1975);
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 Subpoena (Battle), 748 F.2d 327, 330 (6th Cir. 1984);
In re Grand Jury Proceedings, 694 F.2d 1258 (11th Cir. 1982).
PRELIMINARY REQUIREMENT OF NEED
In addition to a “relevancy” requirement of 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 at 1011.
The prosecution must address two inquiries when making a showing of need:
- is the information sought necessary or important to the grand jury investigation?
- is the subpoenaed attorney the best or only source for the information? at 1011n.6.
But See In re Grand Jury Subpoena Served Upon John Doe, Esq. (Slotnic), No. 84-6319, 38 Cr.L.Rptr. 2313, 2314 (2d Cir. 1986) (en banc) [overturning a panel decision];
In re Grand Jury Proceedings (Doe), 759 F.2d 968 (2d Cir. 1985) (panel) [imposing requirements of a particularized need and the information’s unavailability from a non-attorney source].
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.
LAW OFFICE SEARCHES
The search of a law office’s files and records impinges not only the Fourth Amendment rights of the attorneys, but the confidentiality of his work-product and his clients’ correspondence and records. While some courts have held such searches unreasonable per se, O’Conner v. Johnson, 287 NW2d 400 (Minn. 1979);
others have imposed a particularity requirement of “scrupulous exactitude”;
U.S. v. Abrams, 615 F.2d 541 (1st Cir. 1980); analogous to that required in the First Amendment area.
See Zurcher v. Stanford Daily, 436 U.S. 547 (1978) [search of student newspaper office];
Stanford v. Texas, 379 U.S. 476 (1965) [search for communist literature];
Roden v. Kentucky, 413 U.S. 496 (1973).
See also Federal Guidelines for Law Office Searches, 28 C.F.R. ”59 & 59.4c(1)- (2) (1981);
Bloom, The Law Office Search, 69 GEO.L.J. 107 (1980).
Court’s have held that seizures pursuant to over broad warrants violate both the attorney- client privilege and the Privacy Protection Act [42 U.S.C. ‘ 2000aa-11], suggesting that in the future a “special master” should be appointed to supervise the process of determining what records are privileged. Klitzman, Klitzman and Gallagher v. Krent, 744 F.2d 955 (3d Cir. 1984).
TEXAS HAS BROADER MORE ENCOMPASSING ATTORNEY-CLIENT PRIVILEGE
In Texas, an attorney is incompetent to testify as to any fact which came to his knowledge by reason of the attorney-client relationship. TEX. R. EVID. 503.
The rule’s predecessor, TEX. R. CRIM. P. Art. 38.10 provided 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.”
TEX. R. EVID Rule 503(b) expressly provides:
“A client has a privilege to prevent the lawyer or the lawyer’s representative from disclosing any …fact which came to the knowledge of the lawyer or the lawyer’s representation by reason of the attorney-client relationship.” This all- encompassing statutory attorney-client privilege has been in effect long before the enactment of the Texas Rule or predecessor, TEX. R. CRIM. P. Art. 38.10.
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 as well 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 at 601.
Cf. Braesfield v. State, 600 SW.2d 288, 295 (Tex.Cr.App. 1980), overruled on other grounds by Janecka v. State, 739 S.W.2d 813 (Tex. Crim. App. 1987), [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].