Grand Jury Proceedings, In re, 85-1116
| Decision Date | 03 April 1985 |
| Docket Number | No. 85-1116,85-1116 |
| Citation | 760 F.2d 26 |
| Parties | 18 Fed. R. Evid. Serv. 567 In re GRAND JURY PROCEEDINGS. Appeal of Barry P. WILSON. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Carol A. Donovan, Boston, Mass., with whom Norman S. Zalkind and Zalkind & Sheketoff, Boston, Mass., were on brief, for appellant.
James E. O'Neil, Asst. U.S. Atty., Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., and James H. Leavey, Asst. U.S. Atty., Providence, R.I., were on brief, for U.S.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
In granting the government's motion to compel attorney Barry P. Wilson to answer questions before a grand jury, the district court, in a careful opinion, ruled that all but one of the questions that Wilson declined to answer fell outside the scope of the attorney-client privilege. On appeal, Wilson does not urge that the district court erred in its application of the law of privilege as it is presently understood. Rather Wilson urges us to hold that, notwithstanding the absence of the attorney-client privilege, the district court abused its discretion in compelling Wilson to answer. Wilson would apparently also have us interpret the fifth and sixth amendments so as to allow a claim of privilege by an attorney whenever a client could refuse to answer on the basis of his privilege against self-incrimination were he asked the same question.
We hold that the district court did not abuse its discretion in requiring Wilson to answer. Certainly Wilson derives no help from our recent decision in In re Grand Jury Matters, 751 F.2d 13 (1st Cir.1984). We emphasized there that in the absence of some recognized privilege, courts should normally enforce subpoenas that sufficiently meet standards of specificity, timeliness, etc. Id. at 18. To be sure, we held that the judge's oversight authority under Fed.R.Crim.P. 17 was broad enough to allow him to refuse to enforce the subpoenas in that case "at the particular moment" when the subpoenaed attorneys were engaged in defending clients in a state criminal trial. Id. Various unique factors existed in that situation, however, including the absence of any showing by the government of an urgent need for the information at the precise time in question, id. at 19, and the district court's explicit finding that the government was engaged in "harassment" of defense counsel.
Here comparable factors do not exist, and the district court, which we said in In re Grand Jury is owed "much deference" in these matters, id. at 16, ordered that the questions be answered. Wilson had voluntarily acted as a reference for the individual about whom particulars are now being sought. And Wilson was not a defense attorney in an ongoing criminal case but had merely served in a landlord-tenant matter. This is not in any...
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