748 F.2d 871 (4th Cir. 1984), 84-1508, United States v. (Under Seal)

Docket Nº:84-1508, 84-1627 and 84-1628.
Citation:748 F.2d 871
Party Name:UNITED STATES of America, Appellee, v. (UNDER SEAL), Appellant. In re GRAND JURY 83-2 JOHN DOE NO. 462. UNITED STATES of America, Appellee, v. (UNDER SEAL), Appellant. In re JOHN DOE NO. 462. UNITED STATES of America, Appellee, v. (UNDER SEAL), Appellant. In re JOHN DOE NO. 462.
Case Date:November 16, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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748 F.2d 871 (4th Cir. 1984)

UNITED STATES of America, Appellee,

v.

(UNDER SEAL), Appellant.

In re GRAND JURY 83-2 JOHN DOE NO. 462.

UNITED STATES of America, Appellee,

v.

(UNDER SEAL), Appellant.

In re JOHN DOE NO. 462.

UNITED STATES of America, Appellee,

v.

(UNDER SEAL), Appellant.

In re JOHN DOE NO. 462.

Nos. 84-1508, 84-1627 and 84-1628.

United States Court of Appeals, Fourth Circuit

November 16, 1984

Argued July 11, 1984.

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John M. Dowd and Ralph A. Muoio, Washington, D.C. (Neil J. Welch, Jr., Heron, Burchette, Ruckert & Rothwell, Washington, D.C., on brief for John and Jane Doe; Bernard S. Bailor, Caplin & Drysdale, Chartered, Washington, D.C., on brief for third appellant Richard Roe).

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Karen P. Tandy, Asst. U.S. Atty., (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

The appellants 1 appeal from orders of the district court requiring their attorneys to produce documents over their attorneys' and the appellants' assertion of the attorney-client privilege. 2 A grand jury in the Eastern District of Virginia subpoenaed the documents as part of an ongoing investigation. The district court granted the appellants' motions to quash in part, but it required production of documents that it concluded did not reveal confidential client communications. We affirm in part and reverse in part.

I.

Since the summer of 1983, the appellants have been targets of a grand jury investigation. In March and April of 1984, the grand jury issued two subpoenas duces tecum to Egbert Jonker, one of John Doe's tax attorneys, requesting the production of all records concerning John Doe and any business entities associated with him. Jonker explained to the federal agents who issued the subpoenas that John Doe was referred to him by James Pittleman, Esq. Pittleman had asked Jonkers, an expert in Netherlands Antilles tax law, to advise John Doe about the possibility of establishing a corporation in the Netherlands Antilles. Following a series of meetings with John Doe, Jonker prepared a proposed tax ruling and forwarded it to John Doe for his approval. After explaining this to the federal agents, Jonkers filed a motion to quash the subpoena as to four of the requested documents, including the tax ruling, and the Does intervened. Concluding that the documents were not created with an expectation of confidentiality, the district court denied the motion to quash.

The grand jury also issued subpoenas duces tecum to John Wisiackas, Esq., and James Pittleman, Esq., of Odin, Feldman & Pittleman, requesting them to produce all records relating to any transactions between the law firm and the appellants. The appellants, who filed motions to intervene and quash, identified in camera the documents they claimed were privileged. The district court granted in part the Does' motion to quash the subpoena as it applied to fourteen documents, but it required production of thirty-one documents because it concluded that the information contained in the documents either did not originate from these clients or was not intended by these clients to be kept in confidence. For the same reasons, the district court required Richard Roe to produce twenty-one documents but it granted his motion to quash the subpoena as it applied to over twenty of the documents.

II.

The attorney-client privilege, which finds its roots in Roman law, 3 has long been recognized at common law. As modern society became increasingly complex, courts recognized that individuals would need to rely on experts to transact business involving legal problems. "[T]his necessity introduced with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attorneys, in order to render it safe for clients to communicate to their attorneys all proper instructions...." Mounteney, B. in Arnesley

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v. Earl of Arglesea, 17 How.St.Tr. 1225 (1743) quoted in 8 Wigmore,Evidence Sec. 2291 (McNaughten Rev.1961). The privilege has become part of the specialized federal common law in this country 4 and protects the substance of communications made in confidence by a client to his attorney. United States v. Kendrick, 331 F.2d 110, 113 (4th Cir.1964) (en banc). Noting that the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law, the Supreme Court recently reiterated that "[i]ts purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981).

Because the privilege protects the substance of communications, it may also be extended to protect communications by the lawyer to his client, agents, or superiors or to other lawyers in the case of joint representation, if those communications reveal confidential client communications. See Brinton v. Department of State, 636 F.2d 600, 603 (D.C. Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981) (the privilege applies to attorney-client communications originating from the attorney if the communication is based on confidential information provided by the client); Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir.1964) (exchange of memoranda containing confidential client communications between counsel for several clients summoned before grand jury did not abrogate privilege attaching to the memoranda); 8 Wigmore, Evidence Sec. 2301 (McNaughten Rev.1961) ("It has never been questioned that the privilege protects communications to the attorney's clerks, and his other agents ... for rendering his services."). See generally Supreme Court Standard 503(b). 5 However, the privilege protects only confidential client communications; that is, communications not intended to be disclosed to third persons other than in the course of rendering legal services to the client or transmitting the communications by reasonably necessary means. See Supreme Court Standard 503(a)(4). 6 We have recently said that

the "essence" of the privilege is the protection of what was "expressly made confidential" or should have been "reasonably

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assume[d] ... by the attorney as so intended." In determining...

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