29 F.3d 120 (4th Cir. 1994), 94-1718, Sheet Metal Workers Intern. Ass'n v. Sweeney

Docket Nº:94-1718, 94-5404.
Citation:29 F.3d 120
Party Name:SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Plaintiff-Appellee, v. Raymond J. SWEENEY, Party in Interest, Appellant, and Edward J. Carlough; Marie E. Dequatro; Harry Huge; Krista Fogleman; Donovan, Leisure, Newton & Irvine, formerly known as Donovan, Leisure, Rogovin, Hugh & Schiller, formerly known as Rogovin, Hugh & Schiller; Shea & Gould, Def
Case Date:July 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 120

29 F.3d 120 (4th Cir. 1994)

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Plaintiff-Appellee,

v.

Raymond J. SWEENEY, Party in Interest, Appellant,

and

Edward J. Carlough; Marie E. Dequatro; Harry Huge; Krista

Fogleman; Donovan, Leisure, Newton & Irvine, formerly known

as Donovan, Leisure, Rogovin, Hugh & Schiller, formerly

known as Rogovin, Hugh & Schiller; Shea & Gould, Defendants,

v.

Donald FISHER; Arthur R. Moore; Michael J. Sullivan;

Roberts G. Mammini; Timothy H. Roche; Michael L. Cannon;

Raymond Boucher; William F. Stephen; John C. Beaulieu;

Joseph Demark; Lawrence Cassidy, Third-Party Defendants.

In re John DOE, A91-299, Grand Jury 93-3.

UNDER SEAL, Plaintiff-Appellee,

v.

UNDER SEAL, Defendant-Appellant.

Nos. 94-1718, 94-5404.

United States Court of Appeals, Fourth Circuit

July 5, 1994

Argued June 9, 1994.

Page 121

ARGUED: James J. McGuire, Mayer, Brown & Platt, New York City, for appellant. Stephen P. Learned, Asst. U.S. Atty., Alexandria, VA, for appellee U.S.; John O'Brien Clarke, Jr., Highsaw, Mahoney & Clarke, P.C., Washington, DC, for appellee Sheet Metal Workers. ON BRIEF: Nicholas W. Lobenthal, Mayer, Brown & Platt, New York City; Thomas DiLenge, Mayer, Brown & Platt, Washington, DC, for appellant. Helen F. Fahey, U.S. Atty., Alexandria, VA, for appellee U.S.

Before WIDENER, WILLIAMS and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge WIDENER wrote the opinion in which Judge WILLIAMS and Judge MICHAEL joined.

OPINION

WIDENER, Circuit Judge:

This case involves disputes over attorney-client privilege arising from a Grand Jury investigation and a civil case. The cases were consolidated for purposes of this appeal, and we affirm.

In the criminal case, In Re John Doe A91-299, Grand Jury 93-3 (Under Seal), the Grand Jury subpoenaed attorney John Doe of the law firm of Arent Fox Kinter Plotkin & Kahn (Arent Fox). Appellant Raymond J. Sweeney sought to quash the subpoena on the ground that the attorney's testimony would involve matters and documents within the scope of Arent Fox's representation of Sweeney, which were protected by attorney-client privilege. Sweeney appeals the district court's denial of his motion to quash the subpoena. The civil case, Sheet Metal Workers Int'l Ass'n v. Carlough, involves a suit by the Sheet Metal Workers International Association (Union) against its ex-president and Pension Fund Chairman, Edward J. Carlough, and others, for misusing Union funds for the purchase of a residence in violation of ERISA and other statutory and common law obligations. In the civil case, the Union desired to take Sweeney's deposition, but he moved to disqualify the Union's attorneys and quash the subpoena, on the basis that the Union's attorneys had received information covered by the attorney-client privilege from the Pension Fund's former attorneys, Arent Fox. Sweeney advanced the same claim of attorney-client privilege regarding Arent Fox as he did in the criminal investigation. The district court denied the motion to disqualify and the motion to quash, holding in both the civil and criminal cases, that Sweeney did not have an attorney-client relationship with Arent Fox or an expectation of confidentiality and that, to the extent such may have existed, he had waived it. Jurisdiction for both appeals is noted under 28 U.S.C. Sec. 1291 and Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). 1

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We affirm substantially on the basis that the decisions of the district court were not clearly erroneous.

It is not an overstatement to say that the gist of the case is whether the facts presented to the district court warrant its conclusion that Sweeney and Arent Fox did not have an attorney-client relationship, that Sweeney had no reasonable expectation of confidentiality, and that Sweeney waived any privilege that may have existed.

Sweeney was retained counsel for the Sheet Metal Workers National Pension Fund (Fund) and advised the Fund in 1989 with respect to its intended purchase of a large home to be leased back to the Union as office space, known as Conference Center II. In 1991, Arent Fox also became the Fund's attorneys, specifically in connection with a federal grand jury investigation of the Fund, including its purchase of Conference Center II. Sweeney had dealings with Arent Fox attorneys in the course of the government's investigation. His best case follows, many of the following facts being taken from Sweeney's affidavit. On March 30, 1992 he met with Arent Fox lawyers who advised him to be candid about the Fund and did not advise him to retain his own counsel. On December 23, 1992 he met with Arent Fox and provided them with documents in his possession concerning Conference Center II and other matters in which he had represented the Fund. Arent Fox advised him what documents in his file should be produced pursuant to a grand jury subpoena duces tecum directed to the Fund. In January of 1993, Katherine Voelker, an attorney with Arent Fox, prepared Sweeney for an interview with the Assistant United States Attorney (AUSA) investigating the Fund's purchase of Conference Center II, and accompanied him to the interview. On August 24, 1993 Arent Fox presented Sweeney with a tolling agreement, which extended the statute of limitations for any cause of action the Fund might have against Sweeney. On October 21, 1993, Sweeney met with Doe of Arent Fox and told him he had memoranda to his file discussing the 1989 purchase of Conference Center II and conversations between Sweeney and Carlough, among others. Sweeney mailed Doe those memoranda the next day. He also mailed copies of the same memoranda to Edmund D'Elia, newly appointed general counsel of the Fund and the Union. Sweeney mailed copies of those memoranda to the AUSA on November 9, 1993. On November 17, 1993, Sweeney again met with the AUSA, in the presence of Mrs. Voelker, but at some point in the interview Sweeney asked her to leave. The AUSA continued the Sweeney interview with a labor investigator present. On this factual basis, Sweeney claims to have had a belief that Arent Fox represented him personally up until the tolling agreement of August 24, 1993 and claims that he had a joint defense-type relationship with Arent Fox in which he had a reasonable expectation of confidentiality.

Besides the Union's case against the trustees, to which Sweeney is not a party, one Loonie, a participant in the Fund, filed a suit against several trustees and attorneys, including Sweeney, Loonie v. Carlough, et al., Civil Action No. 93-1596-A. Arent Fox represented the plaintiff in that case and sued Sweeney for legal malpractice for his advice to the Fund's trustees regarding the purchase of Conference Center II. The trustees and attorneys, but excluding Sweeney (who joined in the motion later), moved to disqualify Arent Fox. On February 18, 1994, the district court dismissed the Loonie complaint on the basis that Arent Fox was disqualified because of the trustees' and their attorneys' expectation of confidentiality that was not clearly negated by the actions of Arent Fox. The firm of Tydings & Rosenberg replaced Arent Fox in this suit, and the district court denied it use of Arent Fox's work product and again dismissed the complaint on March 11, 1994, with leave to file an amended complaint that would not rely on any confidential information. On the same day as the dismissal, Sweeney filed an affidavit and motion in support of the motion to dismiss the complaint, based on Sweeney's allegation that he too enjoyed an attorney-client relationship with Arent Fox and an expectation of confidentiality pursuant to a joint defense-type relationship. Tydings & Rosenberg refiled

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the Loonie complaint on April 1, 1994, but the district court dismissed that complaint on May 20, 1994, for lack of jurisdiction. It is the understanding of the parties that this action will be refiled as a diversity case.

In the meantime and pursuant to its investigation, the Grand Jury issued a subpoena duces tecum to Doe to testify on May 10, 1994 and bring with him the memoranda that Sweeney had given to him in October of 1993. However, based on Sweeney's affidavit filed in the Loonie case brought by the Fund, Doe declined to testify before the grand jury unless ordered to do so by the court. The government sought a show cause order against Doe, and, at a district court hearing on the order held on May 27, 1994, Sweeney presented his affidavit and an ex parte, in camera supplemental affidavit regarding his claimed representation by or expectation of confidentiality with Arent Fox. The government presented the affidavits of Mrs. Voelker, the sealed affidavit of an attorney for a defendant in one of the civil cases, James M. Pitt, a senior investigator for the United States Department of Labor who was present during Sweeney's interview with the AUSA on November 17, 1993, and Brian McCarthy, the...

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