975 F.2d 102 (3rd Cir. 1992), 91-1425, Baylson v. Disciplinary Bd. of Supreme Court of Pennsylvania

Docket Nº:91-1425.
Citation:975 F.2d 102
Party Name:Michael M. BAYLSON, James J. West, Thomas W. Corbett, Jr. v. The DISCIPLINARY BOARD OF the SUPREME COURT OF PENNSYLVANIA, Byrd R. Brown; James F. Mundy; Murray S. Eckell; Richard D. Cilardi, Jr.; Judith Heh; John R. Padova; John A. Tumolo; Daniel R. Gilbert; William L. Keller; George F. Douglas, Jr.; Berle L. Schiller; Charles V. Stoelker, Jr.; Fre
Case Date:September 16, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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975 F.2d 102 (3rd Cir. 1992)

Michael M. BAYLSON, James J. West, Thomas W. Corbett, Jr.

v.

The DISCIPLINARY BOARD OF the SUPREME COURT OF PENNSYLVANIA,

Byrd R. Brown; James F. Mundy; Murray S. Eckell; Richard

D. Cilardi, Jr.; Judith Heh; John R. Padova; John A.

Tumolo; Daniel R. Gilbert; William L. Keller; George F.

Douglas, Jr.; Berle L. Schiller; Charles V. Stoelker, Jr.;

Frederick Wells Hill

The Disciplinary Board of the Supreme Court of Pennsylvania,

Appellant.

No. 91-1425.

United States Court of Appeals, Third Circuit

September 16, 1992

Argued Nov. 21, 1991.

As Amended Sept. 21, 1992.

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[Copyrighted Material Omitted]

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Michael M. Baylson (argued), U.S. Atty., Philadelphia, Pa., for appellees Baylson and West.

Richard A. Sprague (argued), Sprague & Sprague, Philadelphia, Pa., for appellant.

John J. Kerrigan, Jr. (argued), Newtown, Pa., for amicus PA Trial Lawyers Ass'n.

Michael A. Bloom (argued), Philadelphia, Pa., for amicus PA Bar Ass'n.

Before: MANSMANN, COWEN and HIGGINBOTHAM, Circuit Judges.

OPINION

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

The issue on this appeal is whether Rule 3.10 of the Pennsylvania Rules of Professional Conduct, which was adopted by the federal district courts in Pennsylvania, may be enforced against federal prosecutors practicing before the federal district courts in that state. The rule requires a federal prosecutor to obtain prior judicial approval before serving a grand jury subpoena on an attorney where the attorney would be asked to testify about past or present clients. We hold that Rule 3.10 may not be enforced against federal prosecutors because its adoption as federal law falls outside the rule-making authority of the district courts, and its enforcement as state law violates the Supremacy Clause of the United States Constitution.

I

On November 7, 1988, the Supreme Court of Pennsylvania adopted Rule 3.10 of the Pennsylvania Rules of Professional Conduct governing lawyers who practice in Pennsylvania. Rule 3.10 provides in its entirety:

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.

Before the addition of Rule 3.10, each of the three federal district courts in Pennsylvania had adopted by local rules the Rules of Professional Conduct of the Pennsylvania Supreme Court, as amended from time to time by the state supreme court, as the standards of professional conduct for attorneys

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admitted to the bars of those federal courts.

After Rule 3.10 was enacted, all three federal district courts in Pennsylvania purported to revise their local rules to state that Rule 3.10 had no application in their respective jurisdictions. All three districts excepted Rule 3.10 from their local rules without using an advisory committee and without giving the public prior notice and opportunity to comment as required by 28 U.S.C. § 2071.

On July 19, 1989, after the federal district courts had excepted Rule 3.10 from their local rules, plaintiffs, Michael Baylson, James West and Thomas Corbett, Jr., (hereafter collectively referred to as Baylson) members of the Pennsylvania bar and Acting United States Attorneys for the three federal districts in Pennsylvania, sued defendant, the Disciplinary Board of the Supreme Court of Pennsylvania (Board), in the federal District Court for the Eastern District of Pennsylvania, to prevent defendant from enforcing Rule 3.10 against them and other federal prosecutors who are members of the Pennsylvania Bar.

Specifically, plaintiffs complained that Rule 3.10 violated Article II of the United States Constitution by infringing on their executive prosecutorial duties. Plaintiffs also claimed that Rule 3.10 conflicted with Federal Rule of Criminal Procedure 6(e) by improperly interfering with the grand jury process. Finally, plaintiffs argued that, because the district courts' amendments deleting Rule 3.10 from the Local Rules were supreme federal laws, application of Rule 3.10 to federal prosecutors would violate the Supremacy Clause of the Constitution.

Both Baylson and the Board moved for summary judgment. On April 22, 1991, the district court granted Baylson's motion for summary judgment. First, the court held that the amendments by the federal district courts deleting Rule 3.10 from their local rules were invalid because the district courts had not used advisory committees, nor had they notified and sought comment from the public, as they are required to do by the Judicial Improvement Act, 28 U.S.C. § 2071(b). The court then agreed with the Board that, since the amendments to the local rules were invalid, Rule 3.10 remained in force. The court also agreed with the Board that insofar as the district courts had adopted it, Rule 3.10 was federal law. Nonetheless, the court concluded that Rule 3.10 could not be enforced against federal prosecutors in the Eastern, Middle and Western Districts of Pennsylvania because the rule violated the Supremacy Clause of the United States Constitution.

The Board now appeals. Baylson has not appealed the district court's holding that the amendments by the three federal district courts, excepting Rule 3.10 from their local rules, were invalid.

II

In its order granting summary judgment in favor of Baylson, the district court held that "the United States District Courts for the Western, Middle and Eastern Districts of Pennsylvania have not adopted Pennsylvania Rule of Professional Conduct 3.10 and that Rule 3.10 is in conflict with federal law." Baylson v. Disciplinary Board of Supreme Court of Pennsylvania, 764 F.Supp. 328, 349 (E.D.Pa.1991).

As far as we can tell, the district court based its holding on four different grounds.

As to the first ground, the district court reasoned that the local disciplinary rules themselves implicitly reject the absorption of Rule 3.10 because the local rules are not meant to establish mechanisms of judicial review, rules of procedure or evidentiary standards. Rule 3.10, according to the district court, does exactly that. It "initially creates a rule of criminal procedure that contains evidentiary standards for judicial review and then impresses an ethical duty upon prosecutors to adhere to that procedure." Baylson, 764 F.Supp. at 337. In short, the district court read Rule 3.10 as a procedural and evidentiary rule masquerading as a rule of conduct.

As to the second ground, the court determined that Rule 3.10 conflicts with two specific provisions of the Federal Rules of

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Criminal Procedure: Rule 6(e) and Rule 17. Rule 6(e) generally prohibits the disclosure of matters occurring in front of the grand jury. According to the district court, Rule 3.10 violates this policy of secrecy because it would force the government to disclose secret grand jury information in every instance in which a subpoena commands an attorney to give evidence about a client.

Rule 17 regulates subpoena practice. Specifically, Fed.R.Crim.P. 17 provides in relevant part that the clerk of the court, without judicial supervision, shall issue a subpoena to a party requesting it. Thus, according to the district court, Rule 3.10 conflicts with Fed.R.Crim.P. 17 because Rule 3.10 requires prior judicial approval of an attorney subpoena, whereas Fed.R.Crim.P. 17 makes no allowance for judicial intervention in the issuance or service of a subpoena to an attorney. Id. at 346.

As to the third ground, the district court found Rule 3.10 to conflict with the historic powers and functions of the grand jury for two reasons: First, the review procedure required by Rule 3.10 would invite delays and detours thereby interfering with the speed of the grand jury investigations. Id. at 340. Second, Rule 3.10 would subvert the autonomy of the grand jury by interposing substantive restraints on the grand jury's ability to gather evidence. Id.

As to the fourth ground, the district court determined that Rule 3.10 impermissibly broadens the scope of the attorney-client privilege at the expense of the grand jury, again for two reasons. First, according to the district court, the attorney-client privilege only protects information learned directly from the client and does not prevent an attorney from testifying about information learned from sources other than the client. On the other hand, Rule 3.10 seems to go beyond the attorney-client...

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