In re Williams

• Decision Date: 03 August 1987
• Docket Number: No. GJ 85-7(MIA).,GJ 85-7(MIA).
• Citation: 717 F. Supp. 1502
• Parties: In re Douglas WILLIAMS, Greg Denaro, Sam Rabin, and Jose Quinon.
• Court: U.S. District Court — Southern District of Florida

717 F. Supp. 1502

In re Douglas WILLIAMS, Greg Denaro, Sam Rabin, and Jose Quinon.

No. GJ 85-7(MIA).

United States District Court, S.D. Florida.

August 3, 1987.

MEMORANDUM OPINION¹

SCOTT, District Judge.

The Court is called upon to decide² the legality of grand jury subpoenas served upon the four above-named criminal defense attorneys. The subpoenas seek information relating to the amount of legal fees paid to the defense lawyers in the highly publicized first "River-Cops" trial.³ The Attorney-Witnesses, the Intervenor-Clients, and Amici⁴ oppose the subpoenas on various constitutional, privilege and policy grounds.⁵ In particular, counsel for the Witnesses and Amici invite the Court to decide the matter in a classical constitutional context; namely, right to counsel⁶ and grand jury abuse.⁷ At the outset, the Court declines to accept the invitations to decide this matter on constitutional grounds⁸ but, instead, focuses on the oldest and most basic of common law privileges — the attorney-client.

I. THE ATTORNEY-CLIENT PRIVILEGE

Much has been written recently on prosecutors' subpoenaing criminal defense lawyers and its impact on the attorney-client relationship. DuMouchel, D., Odberg, C., Defense Attorney Fees: A New Tool for the Prosecution, Det.C.L.Rev. 57 (1986); Suni, Subpoenas to Criminal Defense Lawyers: A Proposal for Limits, 65 Or.L. Rev. 215 (1986); Note, A Critical Appraisal of the Justice Department Guidelines for Grand Jury Subpoenas Issued to Defense Attorneys, Duke L.J. 145 (1986); Note, Grand Jury Subpoenas of a Target's Attorney: The Need for a Preliminary Showing, 20 Ga.L.Rev. 747 (1986); Comment, Second Circuit Rejects Need Requirement for Attorney Subpoena: In re Grand Jury Subpoena Served Upon John Doe, Esq. (Slotnick), 60 St. John's L.Rev. 524 (1986); Note, The Grand Jury Subpoena: Is it the Prosecutor's "Ultimate Weapon" Against Defense Attorneys and Their Clients, 13 Pepperdine L.Rev. 791 (1986). Courts and commentators alike have struggled with the conflicting considerations. The focus of the debate centers upon the Government's need to seek everyone's evidence as against the need to maintain the confidentiality of communications between attorney and client. United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973); Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); see DePetris & Bachrach, Subpoenas to Defense Attorneys — Responsible Prosecutional Approach, N.Y.L.J. (April 30, 1980); Moscarino and Merkle, Are Prosecutors Invading the Attorney-Client Relationship? A.B.A.J. (September 1985) p. 38.

The Government contends that the information sought is not protected; such subpoenas are employed only sparingly and in accordance with Department of Justice guidelines and approval; and, in cases involving money-laundering and continuing criminal enterprise, proof of profits and unexplained wealth is essential. Criminal defense attorneys pointedly counter that subpoenaing lawyers is an assault upon an essential element of our justice system. They contend that such subpoenas are, in practice, a tool of intimidation used to break down the adversary system; accordingly, it is incumbent upon a responsible and ever vigilant judiciary to curb such abuse. Using this debate as a point of departure, a brief review of the applicable common law is in order.

A. Background

The attorney-client privilege is a residual of over four hundred years of legal experience. It is a creature of public policy. The privilege shields from disclosure confidential communications between attorney and client. 8 Wigmore § 2290-91 (McNaughton Rev.1961). The purpose of the privilege is to promote full and frank disclosure of necessary information. This "shield of confidentiality" provides a basis for faith, trust, and confidence between attorney and client. Clients understandably must believe that information provided to their attorneys will be kept confidential in order that they feel free to provide the information necessary for proper preparation of the case. Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); see also Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888). Only then are the ends of justice served.

The essential elements of the privilege are (a) an attorney-client relationship; and (b) confidential communication. In re Grand Jury Proceedings (Jones), 517 F.2d 666, 670 (5th Cir.1975); United States v. Ponder, 475 F.2d 37, 39 (5th Cir.1973). The party invoking the privilege has the burden of establishing the attorney-client relationship and the confidential nature of the communication. In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir.1983).

The subpoenaing of lawyers to provide fee information has been addressed by several circuits in recent history, often with divergent results. In re Grand Jury Subpoena Service Upon Doe, 759 F.2d 968, 971 (2d Cir.1985); United States v. Liebman, 742 F.2d 807 (3d Cir.1984); In re Shargel, 742 F.2d 61 (2d Cir.1984); In re Ousterhoudt, 722 F.2d 591 (9th Cir.1983); In re Grand Jury Proceedings (Gordon), 722 F.2d 303 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). While these opinions are instructive and properly may be used as analogues, they are not binding. It is for this reason that the following discussion will primarily concern itself with controlling precedent from the Eleventh Circuit Court of Appeal and its predecessor Fifth Circuit.⁹

B. Prior Circuit Precedent

In this circuit, the seminal decision is In re Grand Jury Proceedings (Jones), 517 F.2d 666, 670 (5th Cir.1975). While not the original case to address the present issue, see, e.g., United States v. Ponder, 475 F.2d 37, 39 (5th Cir.1973); United States v. Finley, 434 F.2d 596 (5th Cir.1970), Jones established the basic legal principles for analyzing a claim of attorney-client privilege.¹⁰ A review of the subsequent cases reveals that Jones continues as the operative framework for analysis.¹¹

Jones teaches that lawyers' fee arrangements are generally not protected by the privilege. Nevertheless, the court recognized that in "exceptional circumstances," fee information may be privileged. "Just as the client's verbal communications are protected, it follows that other information, not normally privileged, should also be protected when so much of the substance of the communications are already in the Government's possession that additional disclosures would yield substantial probative links in an existing claim of inculpatory events or transactions." Jones, 517 F.2d at 674.

Jones recognized that cases of this nature present "discrete" issues which must be given considered thought before resolution. There must not be a wooden application of an automatic rule. "On many occasions the general rule has been invoked rather mechanically to justify a result which was reached without more thoughtful analysis." Id. at 671 n. 2. Each controversy must be decided on a case-by-case basis bottomed on its own peculiar facts, "... since the purpose of the privilege — to suppress the truth — runs counter to the dominant aims of the law." Id. at 671-72.

In a subsequent Fifth Circuit opinion, In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir.1982) (en banc) which is not binding here but has been approved by the Eleventh Circuit, In re Grand Jury Proceedings (Twist), 689 F.2d 1351, 1352 (11th Cir.1982) ("This Court is not bound by Pavlick ... but we approve its reasoning.") the Court limited the "exceptional circumstances" discussed in Jones to what has now been termed the "last link" exception. "There we also recognized, however, a limited and narrow exception to the general rule, one that obtains when the disclosure of the client's identity by his attorney would have supplied the last link in an existing chain of incriminating evidence likely to lead to the client's indictment." Pavlick, 680 F.2d at 1027. See also United States v. Clemons, 676 F.2d 124, 125 (5th Cir.1982); In re Grand Jury Proceedings In Matter of Fine, 641 F.2d 199, 203 (5th Cir.1981).

Since its creation, the Eleventh Circuit has found itself considering this issue routinely. United States v. Innella, 821 F.2d 1566 (11th Cir.1987); In re Grand Jury Subpoena (Bierman), 765 F.2d 1014 (11th Cir.1985), vacated in part, 788 F.2d 1511 (11th Cir.1986); In re Grand Jury Investigation (Harvey), 769 F.2d 1485 (11th Cir. 1985); In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571 (11th Cir.1983); In re Slaughter, 694 F.2d 1258 (11th Cir.1982); In re Grand Jury Proceedings (Twist), 689 F.2d 1351 (11th Cir. 1982).¹² Scrutiny of these decisions reveals that the Eleventh Circuit approved the "last link" as an available but rarely employed exception; has continued to apply a probing case-by-case analysis as required by Jones, and, at the same time, given considerable credence to the trial judge's decision;¹³ has rejected any government invitation to abolish or narrow the exception; and has consistently refused to apply the exception where there is even a hint of crime or fraud by the attorney invoking the privilege.

Reading these decisions in their totality, a pattern emerges that the circuit will not tolerate use of the privilege to frustrate the legitimate ends of law enforcement in seeking the truth,¹⁴ save for those situations where a true confidential setting would be invaded. A last link of incriminating evidence provides such a setting. The question remains, therefore, whether the present subpoenas served upon the four putative witnesses constitute just such a setting. The answer to this question, in turn, requires particularized concern with the facts of this case.

II. HISTORY OF THE CASE

A short procedural history of this litigation reveals the following:

1. Between...