Baylson v. Disciplinary Bd. of Supreme Court of Pa.

• Decision Date: 22 April 1991
• Docket Number: Civ. A. No. 89-5264.
• Parties: Michael M. BAYLSON, James J. West and Charles D. Sheehy v. The DISCIPLINARY BOARD OF the SUPREME COURT OF PENNSYLVANIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

764 F. Supp. 328

Michael M. BAYLSON, James J. West and Charles D. Sheehy v. The DISCIPLINARY BOARD OF the SUPREME COURT OF PENNSYLVANIA.

Civ. A. No. 89-5264.

United States District Court, E.D. Pennsylvania.

April 22, 1991.

COPYRIGHT MATERIAL OMITTED

Michael M. Baylson, U.S. Atty., David F. McComb, Asst. U.S. Atty., Philadelphia, for plaintiffs.

Richard A. Sprague, Thomas A. Sprague, Philadelphia, for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The plaintiffs in this action are members of the Pennsylvania Bar and the United States Attorneys or Acting United States Attorneys for the three districts of Pennsylvania. They seek relief from a state disciplinary rule that impresses an ethical obligation on them, as prosecutors, to obtain judicial approval before subpoenaing any lawyer to give evidence about his or her client to a grand jury. The parties have filed cross-motions for summary judgment. For the reasons that follow, the Court will grant the plaintiffs' motion.

I.

After the advent of the Racketeer Influenced and Corrupt Organizations Act, Pub.L. 98-473, 98 Stat. 1837 (codified as amended at 18 U.S.C. §§ 1961-68), and the Continuing Criminal Enterprise statute, Pub.L. 91-513, 84 Stat. 1265 (codified at 21 U.S.C. § 848), Justice Department officials concluded that attorneys often held non-privileged information pertinent to criminal investigations and thus discarded their previous reticence in subpoenaing them to appear before grand juries. See Stern & Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U.Pa.L.Rev. 1783, 1786-89 (1988). This revision in policy has inspired a vigorous national debate about the propriety and ramifications of compelling lawyers to testify before investigative bodies. See, e.g., Pierce & Colamarino, Defense Counsel as a Witness for the Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas to Counsel for Targets of Investigations, 36 Hastings L.J. 821 (1985); Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L.Rev. 1091, 1178-79 (1985); Note, A Critical Appraisal of the Justice Department Guidelines for Grand Jury Subpoenas Issued to Defense Attorneys, 1986 Duke L.J. 145; Note, Grand Jury Subpoenas of a Target's Attorney: A Need for a Preliminary Showing, 22 Ga.L.Rev. 747 (1986); Lawyer Cited for Contempt Over Fee Data, N.Y. Times, Apr. 18, 1991, at B1, col. 5; Thornburgh Policy Leads to a Sharp Ethics Battle, N.Y. Times, Mar. 1, 1991, at B4, col. 3; New Rule Set on Lawyer Subpoenas, Nat'l L.J., Nov. 4, 1985, at 3, 42. It also has motivated some state and federal courts to devise disciplinary rules that require prosecutors to secure judicial approval before subpoenaing attorneys. D.Mass.R. 5(d)(4)(B); Mass.S.J.C.R. 3:08 (PF 15); Tenn.Ct.R.DR 7-103; Va.S.Ct.R. 3A:12 (codified as DR 8-102(A)). This roster now includes the Supreme Court of Pennsylvania, which has enacted Rule 3.10 of the Rules of Professional Conduct. The Rule provides:

A public prosecutor or other governmental lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness. Adopted Nov. 7, 1988, effective Nov. 26, 1988.

COMMENT

It is intended that the required "prior judicial approval" will normally be withheld unless, after a hearing conducted with due regard for the need for appropriate secrecy, the court finds (1) the information sought is not protected from disclosure by Rule 1.6 concerning confidentiality of information, the attorney-client privilege or the work product doctrine; (2) the evidence sought is relevant to the proceeding; (3) compliance with the subpoena would not be unreasonable or oppressive; (4) the purpose of the subpoena is not primarily to harass the attorney/witness or his or her client; and (5) there is no other feasible alternative to obtain the information sought.

Although various statutes and the Federal Rules of Procedure constitute the primary means for regulating practice in the federal district courts, the judges of each district are authorized to promulgate and amend local rules of practice. 28 U.S.C. § 2071(a); Fed.R.Civ.P. 83; Fed.R.Crim.P. 57. Pursuant to this rulemaking power, all three federal district courts situated in Pennsylvania ostensibly revised their local rules to state in terms that Rule 3.10 had no application in their respective jurisdictions. Local Rule 22 of the United States District Court for the Western District of Pennsylvania provides that the "Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania, as amended from time to time by the state court, except as otherwise provided by specific rule of this court." W.D.Pa. R.P. 22(I)(B). On March 11, 1989, the Court issued an Order provisionally expunging Rule 3.10 from its Local Rules:

Rule 3.10 of the Rules of Professional Conduct, adopted by the Supreme Court of Pennsylvania and effective November 26, 1988, shall be and hereby is deleted as a rule of this court.

COMMENT: The Board of Judges concludes that Rule 3.10 of the Rules of Professional Conduct, adopted by the Supreme Court of Pennsylvania, imposes an unnecessary and unreasonable burden on the Department of Justice and this court. Federal law and existing practice provide defense counsel and their clients with standing to raise justiciable issues in appropriate cases following the issuance of a grand jury subpoena. The Clerk of Court is directed to comply with Rule 73 of the Rules of Civil Procedure forthwith and the order shall take effect 60 days thereafter, unless otherwise ordered by the court.

On May 17, 1989, the judges of the Western District signed an Order formally integrating the exception into Local Rule 22. Similarly, the Middle District amended its Local Rule 304.2 to read: "The Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania, except Rule 3.10, as amended from time to time by that court, unless specifically excepted in this court's rules." Eastern District Local Rule of Civil Procedure 14, applicable to criminal proceedings pursuant to Local Rule of Criminal Procedure 2, provides that

The Rules of Professional Conduct adopted by this Court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania, as amended from time to time by that state court, except as otherwise provided by specific Rule of this Court after consideration of comments by representatives of bar associations within the state, except that prior court approval as a condition to the issuance of a subpoena addressed to an attorney in any criminal proceeding, including a grand jury, shall not be required. The propriety of such a subpoena may be considered on a motion to quash.

Amended May 23, 1990.

E.D.Pa.R.Civ.P. 14(IV)(B).

The plaintiffs instituted this action to prevent the defendant, the Disciplinary Board of the Supreme Court of Pennsylvania, from enforcing Rule 3.10 against them and other federal prosecutors who are members of the Pennsylvania Bar. Created in 1972, the Disciplinary Board is an eleven member body that serves under the direction of the Pennsylvania Supreme Court and is charged with administering the state's Rules of Professional Conduct. Pa.R.D.E. 102(a), 201, & 205(a). The Board may commence an investigation into alleged attorney misconduct either on its own motion or in response to a complaint filed by any person. Pa.R.D.E. 205(c)(1) & 208(a)(1). Generally speaking, formal disciplinary proceedings against an attorney are conducted before a Board-appointed hearing committee, Pa.R.D.E. 205(c)(3) & (5), which, after receiving evidence and entertaining argument, submits to the Board a recommended disposition of the matter. The Board, after review of the committee's report, prepares its own statement of findings and recommendations, which is forwarded to the Supreme Court. Pa.R.D.E. 205(c)(6) & 208(d)(2).

According to the plaintiffs' complaint, because the district courts' amendments deleting Rule 3.10 from the local rules are federal laws and therefore supreme, they cannot be sanctioned for failing to secure prior judicial approval of attorney subpoenas. The plaintiffs also argue, among other things, that Rule 3.10 conflicts with the Federal Rules, violates article II of the Constitution by infringing on their executive duties to investigate criminal wrongdoing and to enforce federal laws, and interferes with the judiciary's article III powers to supervise federal grand juries. Both parties initially moved for judgment on the pleadings. The defendant asserted various reasons in support of its motion, including comity, justiciability, and failure to join an indispensable party. The plaintiffs, on the other hand, thought that the district courts' exceptions to Rule 3.10 in the local rules entitled them to judgment. The Court denied both motions, primarily because there were conflicting factual allegations regarding the procedural validity of the district courts' revisions to their local rules. Resolution of that question, in the Court's view, dictates whether other issues of potentially constitutional dimension need be reached. In other words, even though some grounds raised by the plaintiffs could have been disposed of on the pleadings, notions of judicial restraint required that the Court consider the local rules dispute first because it comprised the narrowest possible nonconstitutional ground upon which a decision could rest. See Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784 (1980); Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101,...