Walsh, Matter of

• Decision Date: 19 May 1980
• Docket Number: No. 79-2340,79-2340
• Citation: 623 F.2d 489
• Parties: 6 Fed. R. Evid. Serv. 363 In the Matter of Carl WALSH, a Witness Before the Special September 1978 Grand Jury. Appeal of UNITED STATES of America.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 489

623 F.2d 489

6 Fed. R. Evid. Serv. 363

In the Matter of Carl WALSH, a Witness Before the Special

September 1978 Grand Jury.

Appeal of UNITED STATES of America.

No. 79-2340.

United States Court of Appeals, Seventh Circuit.

May 19, 1980.

Rehearing and Rehearing In Banc Denied July 31, 1980.

William C. Bryson, Jody M. Litchford, Appellant Section, Crim. Div., Dept. of Justice, Washington, D.C., Jeffrey M. Johnson, Sp. Atty., U.S. Dept. of Justice, Chicago, Ill., Thomas P. Sullivan, U.S. Atty., Chicago, Ill. for appellant.

Michael B. Nash, William J. Linklater, George P. Lynch, Chicago, Ill., for appellee.

Allan A. Ackerman, Santo Volpe, Patrick A. Tuite, Chicago, Ill., for amicus curiae, Illinois Defense Lawyers Associaton.

Philip H. Corboy, Chicago, Ill., for amicus curiae, Chicago Bar Association.

Before FAIRCHILD, Chief Judge, and BAUER and CUDAHY, Circuit Judges.

BAUER, Circuit Judge.

The United States appeals a ruling of the district court denying its petition for a Rule to show cause why attorney Carl Walsh should not be held in contempt for refusing to testify before a grand jury and produce records. The district court quashed the subpoenas duces tecum and ad testificandum on the ground that compliance would violate the attorney-client privilege. We reverse and remand.

I

This proceeding is another phase in the intrigue surrounding the burglary of the residence of Anthony J. Accardo. As reported in an earlier decision, "some time after the burglary shortly thereafter, as a matter of fact various people described by the government as 'known burglars' began showing up dead, none from natural causes, in the Chicago Metropolitan area." United States v. One Residence and Attached Garage, etc., 603 F.2d 1231, 1232 (7th Cir. 1979).

A grand jury has been investigating possible federal criminal violations stemming from these events. Accardo family members and Michael Volpe, a handyman for Accardo who discovered the burglary, appeared before the grand jury, represented by appellee Carl M. Walsh.

The plot thickened when, sometime after Mr. Volpe's appearance before the grand jury, "he left his home for his usual place of employment the Accardo residence and seemingly disappeared from human knowledge." Id. at 1233. The grand jury then began investigating Volpe's disappearance. The attorney Walsh, believed to be one of the last persons to have seen Volpe, was subpoenaed. The subpoena ¹ required Walsh to appear and testify and to produce:

1. Accounts receivable relating to Michael Joseph Volpe, Sr., including ledgers.

2. Time records which describe the amount of time spent by Carl M. Walsh in performing services for Michael Joseph Volpe, Sr.

3. Any and all entries in records, including but not limited to file memoranda, appointment books and calendars for the period from September 8, 1978 to October 31, 1978, which memorialize the date, place, and time of meetings and/or communications between Michael Joseph Volpe, and Carl M. Walsh and Carl M. Walsh's office employees.

4. Copies of all statements, bills, receipts and payments made by and for Michael Joseph Volpe, Sr. relating to attorney services.

5. Retainer contracts, letters of understanding and letters of agreement for Michael Joseph Volpe, Sr. relating to the creation and continuation of an attorney-client relationship.

Walsh's motion to quash was denied and he was ordered to appear before the grand jury on July 11, 1979. Walsh came to the grand jury room on that date but refused to enter the room. The Government filed a motion for a rule to show case why Walsh should not be held in contempt. In ruling on that motion, Judge Parsons held that before an attorney could be required to appear before a grand jury at which his client had already testified, the Government must submit a list of proposed questions for in camera review and must establish:

(1) that the information and materials demanded by the subpoena are not within the ambit of the attorney-client privilege or the attorney work product exemption from disclosure, and (2) that there is a particularized need for the information or materials sought, that no other sources for such information are known or available, and that the information or materials sought are material to the investigation.

The Government submitted to the court an affidavit establishing the need for information from Walsh and a list of 73 proposed questions it intended to ask him. Without requiring Walsh to take the stand, the district court ruled that the "cumulative effect" of the proposed questions violated the attorney-client privilege. The court quashed the subpoenas and denied the Government's contempt motion. The Government appeals under 18 U.S.C. § 3731. ²

II

The first issue here is whether the attorney-client privilege insulates an attorney from having to appear before a grand jury investigating events which may implicate his clients. The grand jury, fundamental to our criminal justice system, performs "the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972). In pursuing its goal the grand jury exercises broad investigatory powers subject to the supervision of a judge.

In contrast stands the attorney-client privilege. The attorney-client privilege protects from disclosure confidential communications made by a client to his attorney. The privilege was developed to promote free consultation of legal advisors by clients. In re January 1976 Grand Jury (Genson), 534 F.2d 719 (7th Cir. 1976). In Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314, 319 (7th Cir.) (en banc), cert. denied, 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963), this Circuit adopted the Wigmore formulation of the privilege:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

8 Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961).

To reconcile the competing values served by the privilege and the grand jury, the privilege must be upheld only in those circumstances for which it was created. Fisher v. United States, 425 U.S. 391, 96 L.Ed. 1569, 48 L.Ed.2d 39 (1976). As it is in derogation of the search for truth, the privilege must not be lightly created nor expansively construed. United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). No privilege, no matter how central to our system of justice, has been held to excuse the "obligation of every person to appear and give his evidence before the grand jury." United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973). Instead, the interest in preserving confidences and the interest in pursuing the public's right to "every man's evidence" are accommodated. To that end, the witness must take the stand and answer or refuse to answer individual questions. Cf. Branzburg v. Hayes; Fisher v. United States.

Walsh asserts that the attorney-client relationship will be endangered if he is compelled to testify. But the privilege protects confidential communications, not the attorney-client relationship as a whole. We do not denigrate the attorney-client privilege nor do we elevate the prerogatives of the grand jury. But were we to afford attorneys the right to refuse to appear before grand juries, we would be granting a protection far greater than the parameters of the privilege.

The district court ruled that the government could not question Walsh unless it established (1) that the materials and information sought were not covered by the attorney-client privilege and (2) that there was a particularized need for the information or materials sought, that no other sources for such information were known or available, and that the information or materials sought were material to the investigation. These restrictions, available to no other grand jury witness, are not a permissible method of accommodating the privilege to the grand jury. First, the burden of establishing the existence of a privilege rests on the party asserting it. In re Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469 (3d Cir. 1979); United States v. Tratner, 511 F.2d 248 (7th Cir. 1975). Second, since there is no privilege to refuse to appear before the grand jury, there can be no privilege to refuse to appear before the grand jury until the government demonstrates some compelling need for the counsel's testimony. See Branzburg v. Hayes, 408 U.S. at 708, 92 S.Ct. at 2670.

Walsh must take the stand without previous restrictions by the district court. ³ He may, of course, initially refuse to answer questions he believes to be protected by the attorney-client privilege. But a general refusal to cooperate or the mere assertion of the privilege is not enough. See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Walsh must establish the elements of the privilege as to each record sought and each question asked so that at the enforcement hearing the court can rule with specificity. United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974).

Before he can even claim the privilege, the attorney-witness must establish the fact of an attorney-client relationship. That task is complicated by Walsh's representation of both Accardo and Volpe. An enormous potential for conflict of interest is generated by Walsh's multiple representation of clients before the grand jury. See In re Investigation Before the April 1975 Grand Jury (Rosen), 531 F.2d 600 (D.C.Cir.1976). ⁴ Since the privilege belongs to the client, Walsh must first establish the existence of...