In re Grand Jury Subpoena

• Decision Date: 19 August 2003
• Docket Number: No. 03-1269.,03-1269.
• Citation: 341 F.3d 331
• Parties: IN RE: GRAND JURY SUBPOENA United States of America, Plaintiff-Appellee, v. Under Seal, Defendant, and Under Seal, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

341 F.3d 331

IN RE: GRAND JURY SUBPOENA United States of America, Plaintiff-Appellee, v. Under Seal, Defendant, and Under Seal, Intervenor-Appellant.

No. 03-1269.

United States Court of Appeals, Fourth Circuit.

Argued: June 6, 2003.

Decided: August 19, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Andrea Dennis Callaman, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant.

David Ira Salem, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, Paula Xinis, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant.

Thomas M. DiBiagio, United States Attorney, Greenbelt, Maryland, for Appellee.

Before WILKINS, Chief Judge, and WILLIAMS and TRAXLER, Circuit Judges.

Affirmed by published opinion. Chief Judge WILLIAM W. WILKINS wrote the opinion, in which Judge WILLIAMS and Judge TRAXLER joined.

OPINION

WILKINS, Chief Judge:

Appellant, the subject of a pending grand jury investigation, appeals a district court order compelling his former attorney ("Counsel") to answer two questions before the grand jury.¹ Finding no error, we affirm.

I.

In March 2002, Appellant was interviewed by two FBI agents for the purposes of (1) determining whether Appellant who is of Middle Eastern descent, had any information that might be helpful in connection with terrorism investigations; and (2) discussing with Appellant his earlier filing of an INS document known as Form I-485, sometimes referred to as a "green card" application. This noncustodial interview was conducted in the lobby of Appellant's apartment building and lasted approximately 45 minutes.

During the interview, one of the FBI agents asked Appellant about an answer he had provided to the following question on Form I-485 ("Question 1(b)"): "Have you ever, in or outside the United States... been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations[?]" J.A. 9 (internal quotation marks omitted). Appellant had answered that question "no." Id. (internal quotation marks omitted). Before the interview, the FBI had learned that Appellant had a prior conviction for shoplifting. The FBI agent confronted Appellant with a printout reflecting that conviction and asked why he had answered "no" to Question 1(b). Appellant responded, "I answered `no' to the question ... under the advice of an attorney." Id. at 15 (internal quotation marks omitted). Appellant subsequently identified Counsel by name, and he also gave the name of a second attorney.

In February 2003, in response to a Government subpoena, Counsel appeared before a federal grand jury that was investigating Appellant for making a false statement on Form I-485. After answering some preliminary questions establishing that she was Appellant's former attorney, Counsel was asked two questions that are relevant to this appeal: (1) "[D]id [Appellant] ... consult with you on questions involving the filling out of the I-485?"; and (2) "[D]id you advise him to answer `no' to [Question 1(b)]?" Id. at 7-8 (internal quotation marks omitted). Counsel declined to answer these questions, asserting that her answers would reveal privileged information.

The grand jury proceedings were suspended, and the Government moved to compel Counsel to answer the two questions. Appellant intervened and moved to quash the subpoena, arguing that the questions sought to reveal privileged communications. After conducting a hearing, the district court granted the Government's motion to compel. The court determined that the attorney-client privilege would generally protect the advice that Counsel gave to Appellant. However, the court concluded that Appellant's statements to the FBI agents constituted an implicit waiver of the privilege with respect to the questions at issue. The district court also found that Appellant was not deceived into revealing information to the FBI, emphasizing that the FBI agents were entitled to ask questions of Appellant, who was not in custody. Accordingly, the district court ordered Counsel to answer the questions posed by the Government.

II.

Appellant challenges the ruling of the district court that he waived his attorney-client privilege with respect to the information sought by the Government.² We review factual findings underlying an attorney-client privilege ruling for clear error, and we review the application of legal principles de novo. See Better Gov't Bureau, Inc. v. McGraw (In re Allen), 106 F.3d 582, 601 (4th Cir.1997).

When the attorney-client privilege applies, "it affords confidential communications between lawyer and client complete protection from disclosure." Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir.1998). However, because this privilege "impedes the full and free discovery of the truth," it must be "narrowly construed and recognized only to the very limited extent that excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id. (internal quotation marks, citations & alterations omitted).

This court has adopted the "classic test" for determining the existence of an attorney-client privilege:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982) (per curiam) (internal quotation marks omitted). "The burden is on the proponent of the attorney-client privilege to demonstrate its applicability. The proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived." Id. (citations omitted).

A.

We first consider whether the two questions posed by the Government seek information that is generally protected by the attorney-client privilege. The Government contends that the first question — whether Appellant "consult[ed] with [Counsel] on questions involving the filling out of the I-485," J.A. 7 (internal quotation marks omitted) — was not intended to disclose the substance of Counsel's communications with Appellant but rather to establish the "general purpose of the work performed." Appellee's Br. at 7 (internal quotation marks omitted); see United States v. Under Seal (In re Grand Jury Subpoena), 204 F.3d 516, 520 (4th Cir. 2000) (stating that "the general purpose of the work performed [is] usually not protected from disclosure by the attorney-client privilege because such information ordinarily reveals no confidential professional communications between attorney and client" (internal quotation marks & citation omitted)). This question, however, seeks more than just the "general purpose" of the work performed (for example, providing advice regarding an immigration matter); it specifically asks whether Appellant consulted with Counsel about the preparation of the Form I-485. Thus, the question impermissibly seeks disclosure of the specific nature of the legal advice sought by Appellant. Cf. Chaudhry v. Gallerizzo, 174 F.3d 394, 402-03 (4th Cir. 1999) (holding legal bills that revealed specific nature of research conducted protected by attorney-client privilege).

The Government also contends that its second question — whether Counsel "advise[d] [Appellant] to answer `no' to [Question 1(b)]," J.A. 8 (internal quotation marks omitted) — does not seek information protected by the attorney-client privilege. The Government argues that because Appellant answered "no" to Question 1(b) in a publicly filed document, he cannot claim an attorney-client privilege in connection with that answer because he did not intend for it to remain confidential. The district court declined to address this specific argument, instead focusing on Appellant's waiver of the privilege. Nonetheless, the district court stated that "there is no question ... that there was an attorney-client privilege here" and that "the advice would be within the scope of that privilege." Id. at 52.

We agree with the district court that the attorney-client privilege would generally protect against disclosure of whether Counsel advised Appellant to answer "no" to Question 1(b). The Government's question asked Counsel to reveal the substance of legal advice that she may have given to Appellant concerning his submission of Form I-485 — a confidential communication that clearly falls within the scope of the privilege. See United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748, 750 (4th Cir.1996) ("No doubt exists that, under normal circumstances, an attorney's advice provided to a client, and the communications between attorney and client are protected by the attorney-client privilege.").

Further, we reject the Government's "public document" argument because it misconstrues the nature of the asserted privilege. The underlying communications between Counsel and Appellant regarding his submission of Form I-485 are privileged, regardless of the fact that those communications may have assisted him in answering questions in a public document. Adopting the Government's reasoning would lead to the untenable result that any attorney-client communications relating to the preparation of publicly filed legal documents — such as court pleadings — would be unprotected.

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