Michaelson, In re

• Decision Date: 22 January 1975
• Docket Number: No. 74--3409,74--3409
• Citation: 511 F.2d 882
• Parties: In re Grand Jury Appearance of Alvin S. MICHAELSON, Esquire.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 882

511 F.2d 882

In re Grand Jury Appearance of Alvin S. MICHAELSON, Esquire.

No. 74--3409.

United States Court of Appeals Ninth Circuit.

Jan. 22, 1975.

Certiorari Denied May 19, 1975.

See 95 S.Ct. 1979.

Barry Tarlow (argued), Los Angeles, Cal., for appellant.

James T. Duff, Sp. Atty., Dept. of Justice (argued), Reno, Nev., for appellee.

Before BARNES, MERRILL and DUNIWAY, Circuit Judges.

OPINION

BARNES, Circuit Judge:

I. Prior Proceedings

This is an appeal from an order of the district court dated December 5, 1974, adjudging appellant, an attorney, in civil contempt and ordering him confined due to his refusal to answer questions before a grand jury after immunity had been granted to him and to his client under § 201(a) of the Organized Crime Control Act of 1970, 18 U.S.C. § 6002 et seq. Appellant is presently at liberty on bail.

The contempt order was entered pursuant to § 301(a) of the aforementioned Act, 28 U.S.C. § 1826.

In that 28 U.S.C. § 1826 requires that an appeal taken from such a contempt order be disposed of by this Court not later than 30 days from its filing (in the instant case, by Monday, January 6th, 1975 (January 4th being a Saturday), see Rule 6(a) Federal Rules of Civil Procedure), this panel on January 6th, 1975 filed an unpublished per curiam memorandum affirming the order of the district court. Judges Barnes and Duniway joined in that memorandum and Judge Merrill reserved the right to file a dissent when the full opinion is published.

In addition to our affirmance of the district court's order, our memorandum of January 6th held:

'Due to the time limitations imposed upon us by § 1826, this Court cannot consider any petitions for rehearing or consideration en banc, and no such petitions will be entertained. See Charleston v. United States, 444 F.2d 504 (9th Cir. 1971); Bacon v. United States, 446 F.2d 667 (9th Cir. 1971).

'This case will be remanded forthwith to the district court to revoke bail and order Mr. Michaelson into confinement.

'However, as counsel for appellant has suggested to us, that in the event of affirmance they may apply for a writ of certiorari, issuance of the mandate is stayed thirty days to enable appellant to apply for a writ of certiorari. If a timely application for such a writ is filed, the stay shall remain in effect until the application has been denied, or, if granted, until the cause has been determined by the Supreme Court. Weg v. United States, 450 F.2d 340 (9th Cir. 1971); Bacon, supra (446 F.2d) at 669; Charleston, supra (444 F.2d) at 506.'

Our memorandum also bore a notation that an opinion setting forth in greater detail our reasons for affirmance would be issued in due course as has been the practice of this Circuit. See Stewart v. United States, 440 F.2d 954 (9th Cir. 1971), aff'd sub nom., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

This now is that opinion.

II. Statement of Facts

Alvin S. Michaelson, Esq., an attorney at law, appeals from an order made by the Honorable Bruce R. Thompson, a district judge of the District of Nevada, dated December 5th, 1974, holding said Michaelson in civil contempt of court for his wilful disobedience of a previous order of the same court, dated October 17, 1974, which denied Michaelson's motion to quash his subpoena, and ordered said Michaelson to give testimony before a United States Grand Jury 'respecting unprivileged communications with his client, Brenda Marie Sibson.' ¹

This was after Miss Sibson had been granted use immunity under 18 U.S.C. § 6002 et seq., when she refused to answer certain questions before the same grand jury.

Michaelson appeared before the grand jury on December 4th, 1974, and refused to answer certain questions propounded by government counsel.

Later on that same day, Michaelson was taken before Judge Thompson who ordered that the secrecy of the grand jury proceedings be lifted, insofar as the testimony of Mr. Michaelson was concerned. Such testimony, read by the grand jury short-hand reporter, disclosed the following questions had been asked of Mr. Michaelson after he had been advised of the nature of the grand jury inquiry, and had known he had been ordered 'to give testimony concerning certain fee arrangements between (himself) and Miss Brenda Sibson, and (was) to testify to those matters and any matters which (were) not subject to the attorney-client privilege.' (R.T. Vol. IV, p. 11, line 14 to p. 12, line 7).

The questions which Mr. Michaelson refused to answer and which he was ordered to answer, were these (R.T. Vol. III, pp. 8--9):

1. Q. Did anyone refer Miss Sibson to you?

2. Q. Did you discuss a fee arrangement with Miss Sibson?

3. Q. Did any other individual besides Miss Sibson ever discuss with you a fee arrangement for your representation of Miss Sibson?

4. Q. What is your fee arrangement with Miss Sibson?

5. Q. How much money have you received from Miss Sibson?

6. Q. Have you received any money from any other person besides Miss Sibson to represent Miss Sibson?

7. Q. Have you received any funds from Miss Sibson?

8. Q. Have you made arrangements with Miss Sibson to pay your expenses?

9. Q. Have you made an arrangement with any other person besides Miss Sibson for the payment of your expenses to represent her? ²

Judge Thompson rejected appellant's counsel's arguments that the information sought to be elicited by the questions was privileged under any of the grounds which appellant asserts, granted Michaelson use immunity, and again ordered him to answer the questions.

On December 5th, 1974, Mr. Michaelson again refused to answer the same questions; and Judge Thompson thereupon held Mr. Michaelson in contempt, and pursuant to the provisions of 28 U.S.C. § 1826 ordered him confined until he answered the questions, or until the term of the grand jury had expired. (C.T. 40--41). Mr. Michaelson filed this appeal, and was thereafter released on bail.

We first note that no objection was made to the form of the questions, or to their relevance to the grand jury investigation.

The sole question then before us is whether the information sought is privileged. Judge Thompson held it was not.

Mr. Michaelson urges that the information sought is privileged under one or more of the following reasons:

1. The First Amendment right of freedom of association.

2. The Fourth Amendment right of privacy.

3. The Fifth Amendment, raised on behalf of Miss Sibson. ³

4. The Sixth Amendment right to effective counsel (alleging that forcing him to answer to the above questions would have a 'chilling effect' on the attorney-client relationship).

5. The American Bar Association Code of Professional Responsibility.

6. The State of California Business and Professions Code, § 6068(e) and (h).

7. People v. Canfield, 12 Cal.3d 699, 117 Cal.Rptr. 81, 527 P.2d 633 (1974).

8. The attorney-client privilege.

III. Appellant's claims of privilege lack merit

Several of Mr. Michaelson's positions are answered adversely to him by this Court's decision in United States v. Cromer, 483 F.2d 99 (9th Cir. 1973):

'Cromer (an attorney) next claims that he need not respond to the summons due to the attorney-client privilege. The summons in question required Cromer to testify as to the amounts owed to him by Bell and Brooks (Cromer's clients) on certain dates, the identification of payments by case file name, the general purpose of the legal work and whether it was performed for Brooks or Bell.

'(6, 7) The nature and existence of the privilege are determined by Nevada law. Baird v. Koerner, 279 F.2d 623, 632 (9th Cir. 1960). The applicable Nevada statute ⁵ is of recent origin and we are left without guidance from Nevada courts. However, the term 'confidential' has been statutorily defined:

'A communication is 'confidential' if it is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.'

'Nev.Rev.Stat. § 49.055. We fail to see how the specific information requested can be considered a confidential communication. See Colton v. United States, 306 F.2d 633, 637--638 (2nd Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); C. McCormick, Evidence § 90 (2d ed. 1972).

'(8) Finally, Cromer attempts to raise Fourth and Fifth Amendment claims for his clients as well as himself. Even if he could raise the rights of Bell and Brooks, neither could prevent the sought-after testimony of Cromer. See Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); DeMasters v. Arend, 313 F.2d 79, 85 (9th Cir.), appeal dismissed per stipulation, 375 U.S. 936, 84 S.Ct. 341, 11 L.Ed.2d 269 (1963).

'(9) Equally unmeritorious is his claim that enforcement of this summons would violate his own Fourth and Fifth Amendment rights. Cromer does not demonstrate, as he must, how, as a result of revealing the answers to the specific questions that he has been ordered to answer, there will be a violation of his rights. His speculation and conjecture are insufficient. 'It is well established that the privilege protects against real dangers, not remote and speculative possibilities.' Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972); Hoffman v. United States, 341 U.S. 479, 486--487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).' (Id. at 101--102)

We observe that in Cromer, this Court, relying on Colton v. United States, 306 F.2d 633, 638 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963) (as well as McCormick on Evidence § 90 (2d Ed. 1972)), summarily disposed of one primary issue raised in the instant case in stating it: 'fail(ed) to see how the specific information requested can be considered a confidential communication,' as that language is used in the Nevada law. Cromer is the law of...