Grand Jury Subpoena of Stewart, Matter of

• Decision Date: 03 August 1989
• Parties: In the Matter of GRAND JURY SUBPOENA OF Lynne STEWART, David Weiss and Christopher Lynn.
• Court: New York Supreme Court

Page 974

545 N.Y.S.2d 974

144 Misc.2d 1012

In the Matter of GRAND JURY SUBPOENA OF Lynne STEWART, David Weiss and Christopher Lynn.

Supreme Court, New York County Part 72.

Aug. 3, 1989.

[144 Misc.2d 1013] Stanley Cohen, for petitioner Lynne Stewart.

Kenneth Ramseur, New York City, for petitioner Christopher Lynn.

Phillip Stone, for petitioner David Weiss.

Robert M. Morgenthau, Dist. Atty. (Asst. Dist. Atty. Eric Herschmann), for the people.

LESLIE CROCKER SNYDER, Justice.

This case involves a Grand Jury investigation into a major narcotics organization. Petitioner attorneys have moved to quash subpoenae requiring their appearance before the Grand Jury along with the production of "any and all records of amounts billed and payments made for services rendered ... including fee arrangements and retainer agreements" relating to their respective clients.

The People have submitted for court review a number of sealed exhibits as well as the minutes of the Grand Jury proceedings to support their request for an order compelling petitioners to appear before the Grand Jury. Petitioners' motions to quash allege: 1) that the subpoenae seek testimony and materials which are protected by the attorney-client privilege; and 2) that the subpoenae violate the defendants' Sixth Amendment right to counsel and Fifth and Fourteenth Amendment due process rights guaranteed by both the Federal and New York State Constitutions. This case appears to be one of first impression in New York.

The issue presented to the court is whether a subpoena requiring an attorney to appear before a Grand Jury and produce records concerning the fee arrangements with a defendant should be enforced.

CONCLUSION

The court finds that while no attorney-client privilege applies in the instant case, the court nevertheless must balance the broad powers of the Grand Jury against the defendants' significant constitutional claims. In so doing, the court finds that prior to the enforcement of a Grand Jury subpoena issued to an attorney for a defendant whose right to counsel has attached, the People must show: 1) the relevance of the material sought; 2) no reasonable and legally sufficient alternative source; and 3) good faith in issuing the subpoena.

The People have satisfied these conditions precedent to the enforcement of the subpoenae at issue via the sealed materials and Grand Jury minutes submitted. Therefore, petitioners' motions to quash the subpoenae are denied.

DISCUSSION

POWERS OF THE GRAND JURY

It is well settled that every person owes a duty to give evidence before the Grand Jury when requested to do so. Matter of Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151 (1979). The Grand Jury, as an arm of society and the court, must receive the support and cooperation of the community if it is to fulfill its essential function. The community is entitled to the assistance and information of its members in seeking out and controlling the commission of crime. Matter of Additional January, 1979 Grand Jury of the Albany Supreme Court v. Doe, 50 N.Y.2d 14, 19, 427 N.Y.S.2d 950, 405 N.E.2d 194 (1980); People v. Woodruff, 26 A.D.2d 236, 238, 272 N.Y.S.2d 786 (1966), affd., 21 N.Y.2d 848, 288 N.Y.S.2d 1004, 236 N.E.2d 159 (1968). The Grand Jury's authority to subpoena witnesses is not only historic but essential to its task. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972), citing, Blair v. United States, 250 U.S. 273, 279-281, 39 S.Ct. 468, 470-471, 63 L.Ed. 979 (1919).

As an investigatory body with broad exploratory powers, the scope of a Grand Jury investigation is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts concerning whether any particular individual will be found properly subject to an accusation of crime. Matter of Kuriansky v. Seewald and Patel, 148 A.D.2d 238, 544 N.Y.S.2d 336 (1st Dept.). The broad power of the Grand Jury is designed to protect citizens from unfair charges and in that capacity it can summon people suspected of crimes or people who "may be able to provide links in a chain of evidence relating to criminal conduct of others." United States v. Mandujano, 425 U.S. 564, 573, 96 S.Ct. 1768, 1775, 48 L.Ed.2d 212 (1976); Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); In re Grand Jury Subpoena Served Upon Doe (Slotnick), 781 F.2d 238 (2d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986). In other words, the Grand Jury has a dual function: to determine if a crime has been committed under appropriate legal standards and to protect citizens against unfounded criminal charges. Branzburg v. Hayes, supra, at 686-687, 92 S.Ct. at 2659-2660.

Grand Jury subpoenae are presumptively valid and can only be challenged by an affirmative showing of impropriety. A witness moving to quash a subpoena has Although the powers of the Grand Jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that "the public ... has a right to every man's evidence," except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U.S. 323, at 331, 70 S.Ct. 724, 94 L.Ed. 884; Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 76 L.Ed. 375 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961), is particularly applicable to Grand Jury proceedings. ¹

                the burden of establishing that the subpoena was issued in bad faith or is for some other reason invalid.   These rules are critical to the very nature of the Grand Jury process and its authority.  Matter of Additional January, 1979 Grand Jury of the Albany Supreme Court v. Doe, supra, 50 N.Y.2d at 20, 427 N.Y.S.2d 950, 405 N.E.2d 194, citing, Manning v. Valente, 272 A.D. 358, 361, 72 N.Y.S.2d 88 (1947), affd., 297 N.Y. 681, 77 N.E.2d 3 (1947).   As the United States Supreme Court stated in Branzburg, supra, at 688, 92 S.Ct. at 2660
                

Petitioners contend that the subpoenae at issue request testimony and information protected by the defendants' constitutional rights and by the attorney-client privilege, and that therefore the powers of the Grand Jury should be restricted.

THE ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege is codified in CPLR 4503[a]. ² The privilege exists to insure that one seeking legal advice will be able to confide fully and freely in his or her attorney, secure in the knowledge that any confidences will not later be exposed to public view. This privilege, however, is not limitless. Priest v. Hennessy, 51 N.Y.2d 62, 67-68, 431 N.Y.S.2d 511, 409 N.E.2d 983 (1980); see Hoopes v. Carota, 74 N.Y.2d 716, 544 N.Y.S.2d 808, 543 N.E.2d 73; Matter of Jacqueline F., 47 N.Y.2d 215, 417 N.Y.S.2d 884, 391 N.E.2d 967 (1979).

Since the privilege prevents disclosure of relevant evidence, and thus impedes the quest for truth, it must "be strictly confined within the narrowest possible limits consistent with the logic of its principle." In re Shargel, 742 F.2d 61, 62 (2d Cir.1984), citing, 8 J. Wigmore, Evidence § 2291, at 554 (McNaughton rev. ed. 1961).

In Priest v. Hennessy, the Court of Appeals set forth four principles to be applied in determining whether certain communications are protected by the privilege. First, no attorney-client privilege can be claimed unless an attorney-client relationship has been established. The relationship arises when an attorney is contacted for the purpose of obtaining legal advice or services. Second, it must be shown that the information sought to be protected by the privilege was a confidential communication made to the attorney for the purpose of obtaining legal advice or services. Third, the party claiming the privilege has the burden of proving each element of the privilege. Fourth, in a proper case, public policy may require disclosure. Priest v. Hennessy, supra, 51 N.Y.2d at 68, 69, 431 N.Y.S.2d 511, 409 N.E.2d 983.

In applying these principles, the Court of Appeals in Priest held that communications concerning fee arrangements are collateral to the attorney-client relationship and have no direct relevance to the legal advice sought. Priest v. Hennessy, supra, at 70, 431 N.Y.S.2d 511, 409 N.E.2d 983. Furthermore, the payment of legal fees by a third person does not create a sufficient relationship between the attorney and the third-party benefactor to claim the privilege because such a relationship is not undertaken for the purpose of obtaining legal advice. The court concluded that the name of the person paying the fees and the amount of the retainer paid are "quite simply not the confidences which the privilege was intended to protect". Priest v. Hennessy, supra, at 70, 431 N.Y.S.2d 511, 409 N.E.2d 983.

Federal courts have also consistently held that the attorney-client privilege does not protect fee arrangements. United States v. Pape, 144 F.2d 778 (2d Cir.1944), cert. denied, 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602 (1944); In re Shargel, 742 F.2d 61, supra; Colton v. United States, 306 F.2d 633 (2d Cir.1962); United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir.1977); In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982); In re Grand Jury Proceedings Served Upon Doe, 781 F.2d 238, supra, cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914; Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, supra.

Counsel for Dominick Maldonado argues that since non-disclosure of the fee arrangement was a pre-condition of her being retained in this case, the Priest rationale is inapplicable. In support of this claim, defendant Maldonado has submitted an affidavit stating that at the time he asked Ms. Stewart to represent him, he told her never to "discuss with anyone anything about her retainer including fee arrangements or payments". Furthermore, defendant swears that if his attorney testifies in the Grand Jury, he "could...