Oberkoetter, In re, 79-1580

• Decision Date: 04 January 1980
• Docket Number: No. 79-1580,79-1580
• Parties: In re Robert OBERKOETTER.
• Court: U.S. Court of Appeals — First Circuit

Page 15

612 F.2d 15

In re Robert OBERKOETTER.

No. 79-1580.

United States Court of Appeals, First Circuit.

Argued Nov. 9, 1979.

Decided Jan. 4, 1980.

Thomas C. Troy, Dorchester, Mass., with whom Troy & Collins, Rosemary Minehan and Michael Reilly, Dorchester, Mass., were on brief for appellant.

Douglas P. Woodlock, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, Senior District Judge. ^*

WYZANSKI, Senior District Judge:

The principal question presented is whether a client may appeal to the court of appeals from a district court's order directing his attorney to testify before the grand jury with respect to a communication allegedly covered by the attorney-client privilege.

October 18, 1979 the District Court issued a subpoena to Robert F. Oberkoetter, counsel to the Executive Council of the Commonwealth of Massachusetts, to testify before the grand jury of the United States District Court for the District of Massachusetts. He appeared but, asserting his status as attorney for the Executive Council, declined to answer on the basis of his claim of an attorney-client privilege.

October 25, the United States filed in the District Court a motion to compel Oberkoetter to testify. At an October 26 hearing on the motion, the District Judge heard counsel for the United States, counsel for Oberkoetter, and counsel for an unnamed "target" of the grand jury who, as a member of the Executive Council, claimed to be Oberkoetter's client. Then the District Judge entered his October 26 order which, after recitals, provides merely that Oberkoetter "shall not be excused from testifying or producing evidence on the basis of attorney-client privilege."

The Court on October 31, 1979 denied a motion for reconsideration.

Without naming his client, counsel for the target filed a notice of appeal to this court. The motion does not allege any explanation for the failure to disclose the name of the client.

Counsel for appellant stated at our bar that Oberkoetter plans to testify as to the appellant's communications with him. But there is no proof that he will do so.

Of the many jurisdictional questions revealed by the record ¹ we shall address at length only the one canvassed in the brief and arguments of counsel.

Our starting point is the well-settled rule that an attorney has no right to appeal from a district court order directing him to testify before the grand jury with respect to an attorney-client communication. Such an order directing a witness to appear and testify before a grand jury is not included in those "final decisions" which the courts of appeals are authorized to review by 28 U.S.C. § 1291. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); United States v. Nixon, 418 U.S. 683, 690-691, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The witness must either obey the court's command or refuse to do so and contest the validity of the order if he is subsequently cited for contempt on account of his failure to obey. Ibid. Mr. Justice Brennan gave as a short summary of the reason for the Cobbledick rule that "the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal." United States v. Ryan, supra, 402 U.S. at p. 533, 91 S.Ct. at p. 1582. A more complete exposition is in 9 Moore, Federal Practice, P 110.13(2) at 153-156 (Ward ed. 1975). See also Wright, Miller & Cooper, Federal Practice and Procedure, § 3914 at 567-68, 576-77 (1976).

Many of the considerations which preclude an attorney from appealing an order to testify before the grand jury with respect to a privileged attorney-client communication apply to a client's claim that he should be allowed to appeal. Whichever appeal was allowed would involve the same interference with and delay in the administration of criminal justice, the same piecemeal process of appeal, the same inundation of appellate dockets (United States v. Fried, 386 F.2d 691, 693, 694 (2nd Cir. 1967); Borden Co. v. Sylk, 410 F.2d 843 (3rd Cir. 1969)), the same risk that delay might require the abandonment of the presentation before the original jury and the renewal of the government's presentation before a new grand jury or might permit wrongdoers to avoid punishment because of later unavailability of witnesses or the running of the statute of limitations. But appellant's argument is that, unlike the attorney, the client does not have the possibility of refusing to obey the court's command and contesting the validity of the order if he is subsequently cited for contempt on account of his failure to obey.

The reply to that argument is that there is no strong reason why, at the initiative of either the client or the attorney, any form of review should be provided. "(T)he right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice." Cobbledick v. United States, supra, 309 U.S., p. 325, 60 S.Ct., p. 541; Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, n. 8, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). In the attorney-client situation the issues of fact and of law customarily raised have a simplicity and familiarity which fall well within the competence of a district judge. A hearing by him is so likely to be fully satisfactory that in the usual case there is no public policy favoring any form of review. Moreover, for patent abuse of discretion, or to settle new and important problems respecting the power of the district court, mandamus is available. National Super Spuds, Inc. v. New York Mercantile Exchange, 591 F.2d 174, 181 (2nd Cir. 1979). Cf. Schlagenhauf v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). See Moore, Supra, at p. 155.

Appellant seeks to avoid the foregoing considerations by resort to Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918).

In our discussion of that questionable case, we are greatly aided by the superb opinion of Judge Friendly in National Super Spuds, Inc. v. New York Mercantile Exchange, supra.

In Perlman the district court had impounded and deposited with the clerk exhibits used in a completed case. The United States Attorney applied to the district court for, and secured, an order (herein called "the first order") directing the clerk to deliver possession of the exhibits to the United States Attorney so that he might present them to the grand jury. Perlman, claiming that he had Fourth and Fifth Amendment privileges with respect to the exhibits, brought, in an independent proceeding, a petition to restrain the United States Attorney from presenting the exhibits to the grand jury. The district judge entered an order (herein called "the second order") denying Perlman's petition, and he appealed from the denial. The government filed a motion to dismiss the appeal. It contended that "the order of the District Court" was interlocutory and therefore "not reviewable" by the Supreme Court. The Supreme Court in an opinion by Mr. Justice McKenna construed that contention as relating to the first order "granted upon . . . (the government's) solicitation." P. 13, 38 S.Ct. 417. Mr. Justice McKenna stated that the government's contention was that Perlman was "powerless to avert the mischief of the order but must accept its incidence and seek a remedy at some other time and in some other way." P. 13, 38 S.Ct. p. 419. The Supreme...