In Re: Grand Jury USA. v. Under Seal, 99-2229

• Decision Date: 30 November 1999
• Docket Number: No. 99-2229,CA-99-2417-AW,99-2229
• Citation: 204 F.3d 516
• Parties: (4th Cir. 2000) In Re: Grand Jury Subpoena UNITED STATES OF AMERICA, Respondent-Appellee, v. UNDER SEAL, Petitioner-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 516

204 F.3d 516 (4th Cir. 2000)

In Re: Grand Jury Subpoena

UNITED STATES OF AMERICA, Respondent-Appellee, v. UNDER SEAL, Petitioner-Appellant.

No. 99-2229 (CA-99-2417-AW)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: November 30, 1999

Decided: February 25, 2000

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. [Copyrighted Material Omitted] ARGUED: Joshua R. Treem, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL, L.L.C., Baltimore, Maryland, for Appellant. Sandra Wilkinson, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Rod J. Rosenstein, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Before WIDENER and WILLIAMS, Circuit Judges, and Samuel G. WILSON, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge Wilson wrote the opinion in which Judge Widener and Judge Williams joined.

OPINION

WILSON, Chief District Judge:

The United States served a grand jury subpoena on an attorney commanding him to testify and produce documents concerning the identity of a client. The client intervened and moved to quash on the ground that compliance would invade the attorney-client privilege. The district court denied the motion, and this appeal followed. We conclude that the compelled disclosure of the client's identity would not violate the privilege. Accordingly, we affirm.

I.

A federal grand jury in the District of Maryland is investigating allegations that 37 Forrester Street, S.W., Washington, D.C. ("the property"), is an open air drug market under the control and authority of Erskine "Pee Wee" Hartwell and his alleged confederates. The same grand jury has returned indictments against Hartwelland numerous alleged co-conspirators for money laundering and conspiracy to distribute heroin, cocaine, and marijuana in the District of Maryland and has named the Forrester Street property in a forfeiture count as drug trafficking proceeds. The grand jury continues to investigate the ownership of the property as it relates to other aspects of the drug trafficking operation.

The property is titled in the name "Daniel C. Quispehuman," whom the government believes to be a straw owner. According to Washington, D.C., land records, the property was titled in that name on June 23, 1991. For a number of years, residents living near the property complained that drug dealers were operating in and around the building. In 1998, the D.C. Council enacted laws that permit community groups to file civil nuisance lawsuits against owners of properties used for drug dealing. A non-profit community organization, known as Bellview Improvement Council, Inc. ("BIC"), retained a law firm to help stop the drug activity at the property, and, on September 11, 1998, Mark S. Davies, counsel for BIC, sent a letter to "Daniel Quispehuman" demanding that he stop the drug dealing at the property. After receiving no response, Davies sent a second letter addressed to Quispehuman on April 9, 1999, indicating that he would file suit on April 29, 1999, absent a response to his letter.

On April 28, 1999, Mark Rochon wrote a letter to Davies, stating:

I will be undertaking the clarification of ownership of 37 Forrester Street, S.W., Washington, D.C. 20032. My client hopes to re-title the property in his name and make efforts to deal with the problems described in your letters to Mr. Daniel C. Quispehuman, dated September 11, 1998 and April 19, 1999.I will need about two weeks to put these efforts into place. Please forego any other actions until that time, as I am sure that needless and fruitless litigation is not your goal.

I look forward to working with you to remedy the problems at 37 Forrester Street. I will be able to be more forthcoming in the near future, once title is clear.

On May 3, 1999, Davies replied to Rochon, agreeing to postpone filing suit for two weeks. On May 17, 1999, Davies wrote Rochon to summarize a phone conversation of that day, stating that Rochon had informed him that the property was "now `boarded up'" and "its `tenants have been evicted.'" Davies further noted that Rochon "declined to disclose the name of [his] client, but stated that [he did] not represent Mr. Quispehuman, the recorded owner of 37 Forrester Street."

On July 12, 1999, the government served a grand jury subpoena on Rochon seeking Rochon's testimony, as well as any: (1) written retainer agreements with the unidentified client referenced in Rochon's April 28 letter; (2) nonprivileged documents reflecting any efforts to re-title 37 Forrester Street in the name of the client referenced in the April 28 letter; (3) correspondence with Daniel C. Quispehuman; and (4) nonprivileged documents relating to the ownership of 37 Forrester Street. Following issuance of the subpoena, an Assistant United States Attorney involved in the investigation informed Rochon that she would question him before the grand jury concerning the identity of his client.

Rochon moved to quash the subpoena, contending that requiring him to disclose the identity of his client would reveal the client's purposes and motives for retaining him and, therefore, would result in the disclosure of confidential attorney-client communications. In support of his motion, Rochon submitted a declaration stating that the client retained him in connection with certain issues relating to the property, that the client requested that his identity not be disclosed without his consent, and that Rochon had not disclosed his client's identity to any third party.

Adopting Rochon's arguments, the client moved to intervene and quash the grand jury subpoena. The district court granted the motion to intervene but, on September 1, 1999, denied Rochon and his client's motions to quash. The client filed a timely notice of appeal, and the district court stayed enforcement of the subpoena pending the appeal.

II.

The client argues that his identity, something normally not protected by the attorney-client privilege, is protected because its disclosure would reveal a confidential communication -his motive or purpose for seeking legal advice. Despite his authorization of Rochon's letter to Davies, the client claims that he never intended for Rochon to reveal his identity. It follows, he argues, that since Rochon's letter reveals his motives or purposes in seeking legal advice, matters that are ordinarily privileged, the court must extend that privilege to his identity, which is not ordinarily privileged. We conclude that the client cannot create a privilege that protects his identity by voluntarily disclosing a confidential communication. If we extended the privilege to the client's identity in this case, we would be allowing him to do just that. Therefore, the client's identity is not protected.

"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn v. United States, 449 U.S. 383, 389 (1981). "[W]hen the 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, since it impedes the full and free discovery of the truth, the attorney-client privilege "is to 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. (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)).

As such, it applies only to "[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance," Fisher v. United States, 425 U.S. 391, 403 (1976), and "`[t]he burden is on the proponent of the attorney-client privilege to demonstrate its applicability.'" Hawkins, 148 F.3d at 383 (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). ¹

"`[T]he identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege,'" Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999) (quoting Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992)), because "such information ordinarily reveals no confidential professional communications between attorney and client . . . ." In re Grand Jury Matter, 926 F.2d 348, 352 (4th Cir. 1991) (quoting In re Osterhoudt, 722 F.2d 591, 593 (9th Cir. 1983)). "Absent special circumstances, disclosure of the identity of the client and fee information stand on a footing different from communications intended by the client to explain a problem to a lawyer in order to obtain legal advice." In re Shargel, 742 F.2d 61, 63 (2nd Cir. 1984).

In NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965), we recognized that, under special circumstances, the attorney-client privilege may extend to the client's identity. In Harvey, an attorney, apparently in furtherance of his representation of a client, hired a detective. See 349 F.2d at 901-02. The district court ordered the detective to name the attorney who hired him. See id. at 901. Once named, however, the attorney refused to identify his client, and the district court quashed the subpoena requiring identification. See id . at 901-02. On appeal, we recognized an exception to the general rule that a client's identity is not privileged:

To the general rule is an exception, firmly bedded as the rule itself. The privilege may be recognized when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication.

Id. at 905. It appeared that the client's identity was...