Almond v. US Dist. Court for Dist. of RI, Civ. No. C-93-19-B (D.N.H.). (D.R.I. C.A. No. 92-0663).

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
Citation852 F. Supp. 78
Docket NumberCiv. No. C-93-19-B (D.N.H.). (D.R.I. C.A. No. 92-0663).
PartiesLincoln C. ALMOND, Edwin J. Gale and Michael Davitt, v. U.S. DISTRICT COURT FOR the DISTRICT OF RHODE ISLAND, et al.
Decision Date31 May 1994

852 F. Supp. 78

Lincoln C. ALMOND, Edwin J. Gale and Michael Davitt,

Civ. No. C-93-19-B (D.N.H.). (D.R.I. C.A. No. 92-0663).

United States District Court, D. New Hampshire.

April 18, 1994.

Order Granting Reconsideration May 31, 1994.

852 F. Supp. 79

James Gillis, Boston, MA, Sara Criscitelli, U.S. Dept. of Justice, Washington, DC, Margaret Curran, U.S. Atty., Providence, RI, for plaintiffs.

Lauren Jones, ACLU, S. Michael Levin, RI Bar, John Dolan, Providence, RI, Warren Nighswander, Concord, NH, for defendants.


BARBADORO, District Judge.

Rhode Island Rule of Professional Conduct 3.8(f) requires prosecutors to obtain judicial approval before subpoenaing attorneys to give evidence "concerning a person who is or was represented by the lawyer when such evidence was obtained as a result of the attorney-client relationship." The rule was originally adopted by the Rhode Island Supreme Court and later incorporated by reference into the local rules of the Federal District Court for the District of Rhode Island. The United States Attorney for the District of Rhode Island and two of his assistants presently challenge the state and federal versions of Rule 3.8(f) by suing the United States District Court for the District of Rhode Island and its sitting judges (collectively the "federal defendants"), and the Rhode Island Supreme Court, its sitting justices and Rhode Island's Chief Disciplinary Counsel (collectively the "state defendants"). The prosecutors seek declaratory and injunctive relief, alleging that the federal defendants lacked the power to adopt Rule 3.8(f) as a local federal rule because it (i) is inconsistent with Fed.R.Crim.P. 17, and (ii) impermissibly infringes on the independence of the grand jury. They further contend that since the local rule cannot be enforced as a matter of federal law, the state defendants cannot enforce the state version of Rule 3.8(f) against federal prosecutors without violating the Supremacy Clause.1 The matter is before

852 F. Supp. 80
me on the parties' cross-motions for summary judgment.2


A. Background

This case is the latest skirmish in an ongoing battle between federal prosecutors and the criminal defense bar over the legitimacy of attorney subpoenas. Prior to 1980, prosecutors rarely subpoenaed attorneys to testify about their clients. In the 1980s, however, a rising crime rate and the growing sophistication of many forms of criminal behavior prompted federal prosecutors to employ new tactics in their "war" on crime. Criminal conspiracy statutes passed in the 1970s were put to new and more frequent uses; Max D. Stern & David A. Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U.Pa.L.Rev. 1783, 1787 & n. 16 (1988) (citing the Racketeer Influenced and Corrupt Organization Act, Pub.L. 91-452, 84 Stat. 941 (1970) (codified at 18 U.S.C. §§ 1961-68), and the Continuing Criminal Enterprise Act, Pub.L. 91-513, 84 Stat. 1265 (1970) (codified at 21 U.S.C. § 848)); new federal laws were passed to help prosecutors track the proceeds of illegal activity and prosecute money launderers; House Committee on Government Operations, Federal Prosecutorial Authority in a Changing Legal Environment: More Attention Required, H.Rep. No. 986, 101 Cong., 2d Sess., 22-23 (1990) (citing 26 U.S.C. § 6050I and 18 U.S.C. § 1957); and Congress allocated additional funds to hire more federal prosecutors, id. at 1. This renewed emphasis on law enforcement inevitably led to closer scrutiny of attorneys as potential witnesses to criminal conduct. Stern & Hoffman, supra, at 1787-88; see also David J. Fried, Too High A Price For Truth: The Exception to the Attorney-Client Privilege for Contemplated Crimes and Frauds, 64 N.C.L.Rev. 443, 471-76 (1986).

The government's increased use of attorney subpoenas has come under heavy fire from critics who argue that any investigative rewards the government may reap by subpoenaing attorneys come at the "direct expense of the attorney-client relationship." United States v. Perry, 857 F.2d 1346, 1347 (9th Cir.1988). The perceived costs of such subpoenas include: the "chilling effect" produced by the concern that a subpoenaed attorney might betray his or her client's confidential communications; the potential conflict of interest that could result if an attorney were forced to testify against a client; the diversion of the subpoenaed attorney's attention and resources to the "second front" which his or her new interest in the investigation creates; and the Due Process and Sixth Amendment concerns raised by the risk that the attorney might eventually be disqualified from representing his or her client. United States v. Klubock, 832 F.2d 649, 653-54 (1st Cir.), vacated, 832 F.2d 664 (1st Cir.1987) (en banc), aff'g by equally divided Court 639 F.Supp. 117 (D.Mass.1986). In addition to its costs, critics also argue that the attorney subpoena is too often "a tool of prosecutorial abuse and ... an unethical tactical device US Attorneys employ to go on a `fishing expedition' with legal counsel without first pursuing alternative avenues to get the information." Perry, 857 F.2d at 1347.

Responding to these concerns, the American Bar Association (the "ABA") adopted a 1988 resolution designed to "limit the issuance of attorney subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the attorney-client relationship." ABA Standing Committee on Ethics and Prof.Resp. and Criminal Justice Section, Report to House of Delegates 1 (1988). The resolution created an ethical rule that: (1) required pre-service judicial approval of attorney subpoenas; (2) specified the standards a judge should consider before approving an attorney subpoena; and (3) provided that this evaluation should take place in the context of an adversary proceeding. Id. Following the ABA's lead, several state and federal courts promptly devised disciplinary rules requiring prosecutors to submit attorney subpoenas for similar pre-service judicial approval. Baylson v. Disciplinary Board,

852 F. Supp. 81
764 F.Supp. 328, 331 (E.D.Pa.1991), aff'd, 975 F.2d 102 (1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1578, 123 L.Ed.2d 147 (1993). The Rhode Island Supreme Court and the Federal District Court for the District of Rhode Island have followed suit

B. The Challenged Rules

In 1988, the Rhode Island Supreme Court adopted a modified version of the ABA's Model Rules of Professional Conduct as an amendment to R.I.Sup.Ct.R. 47. In re Petition of Almond, 603 A.2d 1087, 1088 (R.I. 1992). The rule at issue in this case, Rule 3.8(f), provides:

Rule 3.8 Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall:
(f) not, without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer to provide evidence concerning a person who is or was represented by the lawyer when such evidence was obtained as a result of the attorney-client relationship.

The Comment to Rule 3.8(f) states that the rule was

added because of the increasing incidence of grand jury and trial subpoenas directed towards attorneys. It is the belief of the committee that the requirements of prior judicial approval, which should be granted or denied after an opportunity for an adversarial proceeding, will serve as an appropriate safeguard to this practice and its threat to the confidentiality and integrity of the attorney-client relationship.

After thus explaining the rule's purpose, the Comment sets out a five-part standard to guide courts that are called upon to approve attorney subpoenas. According to the Comment,

prior judicial approval should be withheld unless (1) the information sought is not protected from disclosure by an applicable privilege, (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution and is not merely peripheral, cumulative or speculative, (3) the subpoena lists the information sought with particularity, is directed at information regarding a limited subject matter in a reasonably limited period of time, and gives reasonable and timely notice, (4) the purpose of the subpoena is not to harass the attorney or his or her client, and (5) the prosecutor has unsuccessfully made all reasonable attempts to obtain the information sought from non-attorney sources and there is no other feasible alternative to obtain the information.

In 1989, the United States District Court for the District of Rhode Island adopted Rule 3.8(f) and the other Rhode Island Rules of Professional Conduct by amending its Local Rule 4(d) to state that "the rules of Professional Conduct of the Rhode Island Supreme Court shall be the standard of conduct for all attorneys practicing before this court."3

The United States Attorney and his assistants intend to use attorney subpoenas in several pending grand jury investigations. They have not yet sought judicial approval for any such subpoenas, however, because they claim that to do so would "compromise or otherwise jeopardize these investigations." To support this claim, the prosecutors point to the fact that Senior Judge Boyle informed an assistant United States Attorney that he would apply Local Rule 3.8(f) in accordance with its comment's five-part standard. In an affidavit, Chief Judge Legueux has stated that he would do the same. To ensure the secrecy of grand jury proceedings, however, both judges stated that hearings in any adversary proceedings conducted under the rule would be held in camera. Judge Legueux also stated that he would initially review attorney subpoenas ex parte to determine whether they could be properly served. The record is silent regarding the way in which the other judges on the court would enforce the rule.

C. Procedural History

The United States Attorney began his attack on Rule 3.8(f) at the state...

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