832 F.2d 649 (1st Cir. 1987), 86-1413, United States v. Klubock

Docket Nº:86-1413.
Citation:832 F.2d 649
Party Name:UNITED STATES of America, et al., Plaintiffs, Appellants, v. Daniel KLUBOCK, et al., Defendants, Appellees.
Case Date:October 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 649

832 F.2d 649 (1st Cir. 1987)

UNITED STATES of America, et al., Plaintiffs, Appellants,


Daniel KLUBOCK, et al., Defendants, Appellees.

No. 86-1413.

United States Court of Appeals, First Circuit

October 30, 1987

Heard Oct. 10, 1986.

Opinion En Banc 832 F.2d 664.

Sara Criscitelli, Dept. of Justice, Washington, D.C., with whom William F. Weld, U.S. Atty., and Martha B. Sosman, Asst. U.S. Atty., Chief, Civil Div., Boston, Mass., were on brief for appellants.

Michael S. Greco with whom Richard W. Renehan, David A. Hoffman and Hill & Barlow, Boston, Mass., were on brief for appellees Mass. Bd. of Bar Overseers, and Bar Counsel, Daniel Klubock.

Benjamin Fierro, III, Edward J. Smith, DiCara, Selig, Sawyer & Holt and Peter W. Agnes, Jr., Boston, Mass., were on brief for appellee Mass. Bar Ass'n.

Max D. Stern with whom Patricia Garin, Stern & Shapiro, Jeanne Baker, Silverglate, Gertner, Baker, Fine, Good & Mizner, Matthew H. Feinberg and Segal, Moran & Feinberg, Boston, Mass., were on brief for

Page 650

intervenors Boston Bar Ass'n and Mass. Ass'n of Criminal Defense Lawyers.

Eugene C. Thomas, President, American Bar Ass'n, Boise, Idaho, Paul S. Diamond, Philadelphia, Pa., Steven H. Goldblatt and Charles G. Cole, Washington, D.C., on brief for The American Bar Ass'n, amicus curiae.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.


TORRUELLA, Circuit Judge.

This appeal presents a question of first impression which directly implicates the rule-making powers of the district courts, and indirectly, rights guaranteed by the Sixth Amendment of the Constitution. 1 The precise point before us is whether a district court can adopt a local rule which requires prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney's clients.


In early 1986 the Supreme Judicial Court of Massachusetts (SJC), at the prompting of the Massachusetts Bar Association, adopted an ethical rule known as Prosecutorial Function 15 ("PF 15"), 2 which states that:

It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness.

Thereafter, on June 27, 1986, the United States District Court for Massachusetts specifically amended its Local Rules to include PF 15 as a rule of the District Court, effective July 1, 1986. 3

The response of the federal prosecutorial establishment to PF 15 was the filing of the law suit which gives rise to this appeal. 4 The United States and various of its prosecutors who are members of the Massachusetts bar, 5 claim the invalidity of PF 15 both as a rule of the SJC and as a local rule of the District Court. The substance of the allegations are that PF 15 violates the Supremacy Clause of the Constitution because it allegedly conflicts with the Federal Rules of Criminal Procedure and federal substantive law, and because the local rule which adopted PF 15 exceeds the District Court's rule-making powers.

After a hearing the District Court on February 28, 1986 denied plaintiffs' request

Page 651

for an injunction, holding that PF 15 was within the judiciary's supervisory power over grand juries, was not violative of the Supremacy Clause, and did not impermissibly interfere with federal prosecutorial responsibilities.

On appeal plaintiffs-appellants claim: (1) that the District Court lacked the power to promulgate PF 15 as a local rule, (2) that the Supremacy Clause bars enforcement of PF 15 against federal prosecutors, and (3) that PF 15 is so wanting in sound policy value that this Court should exercise its supervisory powers to invalidate it.

The Supremacy Clause issue

In our view, appellants' arguments regarding the Supremacy Clause are either moot or fail to present a justiciable controversy at this time.

It is axiomatic that the Supremacy Clause of the Constitution 6 has relevance only to state interference with federal law. See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985); Michigan Canners & Freezers Assn. v. Agricultural Marketing & Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984). Yet, since its adoption by the District Court, PF 15 can no longer be considered to be a state law, because by its incorporation into the local rules, PF 15 has become federal law. See United States v. Hvass, 355 U.S. 570, 574-75, 78 S.Ct. 501, 504, 2 L.Ed.2d 496 (1958). It is immaterial that its origin lies with a rule of the SJC. By its absorption into the local rules, first indirectly in the original version of Local Rule 5(d)(4)(B), and later by specifically including SJC Rule 3:08 (which contains PF 15) within the text of Local Rule 5(d)(4)(B)), PF 15 is as much federal law as if enacted initially by the district court. To that extent, the Supremacy Clause argument is clearly spurious.

Nonetheless appellants press this claim against the possibility that a federal prosecutor, a member of the Massachusetts bar, may be theoretically vulnerable to being charged in the state disciplinary forum if he/she acts contrary to PF 15 in a jurisdiction other than Massachusetts, (for example, if plaintiff Dabrowski, a member of the Massachusetts bar, serves a subpoena in Connecticut, where he is an assistant United States attorney, without compliance with PF 15). If PF 15 is read literally, appellants' fears, although somewhat far-fetched, cannot be totally discounted. We are not free, however, to ignore the record in this case and the policy statements of those charged with administering PF 15. See Field v. Brown, 610 F.2d 981, 991 (D.C.Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 792 (1979).

As interpreted by defendant-appellee Klubock, Bar Counsel of the Massachusetts Board of Bar Overseers and the person charged with instituting all disciplinary proceedings in Massachusetts, PF 15 will not be applied against any federal prosecutor for any action taken extraterritorially. Furthermore, Klubock has stated that any enforcement proceedings dealing with alleged violation of ethical rules, including PF 15, would, as applied to federal prosecutors, be brought only in the District Court of Massachusetts. Thus, as presently interpreted and enforced by the Massachusetts authorities, federal prosecutors who are members of the Massachusetts bar are subject to PF 15 only for their actions within the District of Massachusetts, and, in such cases, through disciplinary action brought only in the federal forum. That forum also has before it the policy statements of the Massachusetts authorities, upon which we are relying for this decision. While such policy continues in effect, there is no case or controversy for us to decide, and hence there is no remaining Supremacy Clause issue. See Field v. Brown, supra. We, of course, cannot predict

Page 652

any changes in the stated policy, or what would be the outcome of any legal situation created thereby--we should not cross that proverbial bridge until required to do so by the constitutional circumstances.

The Rule-Making Power of the District Courts

It is generally accepted that the district courts have broad rule-making powers both by reason of the inherent nature of the judicial process, ex-statute, see Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812); Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir.1985) (en banc), and pursuant to powers statutorily vested in the courts. See 28 U.S.C. Sec. 2071; 7 Fed.R.Crim.P. 57; 8 Fed.R.Civ.P. 83; 9 Michaelson v. United States, 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821); Eash v. Riggins Trucking Inc., supra; Ma v. Community Bank, 686 F.2d 459, 471 (7th Cir.), cert. denied, 459 U.S. 962, 103 S.Ct. 287, 74 L.Ed.2d 273, reh'g denied, 459 U.S. 1081, 103 S.Ct. 504, 74 L.Ed.2d 642 (1982). See generally Roberts, The Myth of Uniformity in Federal Civil Procedure: Federal Civil Rule 83 and District Local Rule-making Powers, 8 Univ. Puget Sound L.Rev. 537 (1985); Flanders, In Praise of Local Rules, 62 Judicature 28 (June--July, 1978); Weinstein, Reform of Federal Court Rulemaking Procedures, 76 Col.L.Rev. 905 (1976); Note, Rule 83 and the Local Rules, 67 Col.L.Rev. 1251 (1967); Comment, The Local Rules of Civil Procedure in the Federal District Courts--A Survey, 1966 Duke L.J. 1011.

We need not, for purposes of this appeal, fully describe the nature or extent of this rule-making power. Initially it is sufficient if we make reference to the various cases holding that this power is generally limited to (1) procedural rather than substantive matters, see Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (local rule that established six-person juries for civil cases is a permissible procedural innovation), (2) which are not inconsistent with the Federal Rules, see Hawes v. Club Ecuestre El Comandante, 535 F.2d 140, 143 (1st Cir.1976) (local rule requiring nondomiciliary plaintiffs to post security for costs, expenses and attorneys' fees is valid and not contrary to Federal Rules), or (3) with Federal statutes. See Johnson v. Manhattan Ry., 289 U.S. 479, 503, 53 S.Ct. 721, 730, 77 L.Ed. 1331 (1933) (local rule regarding work assigned to district judge invalid as inconsistent with specific statutory provision regarding...

To continue reading