Whitehouse v. U.S. Dist. Court for Dist. of Rhode Island, Nos. 94-1776
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
| Writing for the Court | Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and CYR; TORRUELLA |
| Citation | 53 F.3d 1349 |
| Parties | Sheldon WHITEHOUSE, in his official capacity as United States Attorney for the District of Rhode Island, et al., Plaintiffs-Appellees, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF RHODE ISLAND, et al., Defendants-Appellants. Sheldon WHITEHOUSE, in his official capacity as United States Attorney for the District of Rhode Island, et al., Plaintiffs-Appellees, v. SUPREME COURT OF RHODE ISLAND, Acting Chief Justice Joseph R. Weisberger, Florence K. Murray, Donald F. Shea, Victoria Lederberg and David D. Curtain, as Acting Chief Disciplinary Counsel, et al., Defendants-Appellants. Sheldon WHITEHOUSE, in his official capacity as United States Attorney for the District of Rhode Island, et al., Plaintiffs-Appellants, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF RHODE ISLAND, et al., Defendants-Appellees. . Heard |
| Docket Number | 94-1777 and 94-1889,Nos. 94-1776 |
| Decision Date | 08 December 1994 |
Page 1349
States Attorney for the District of Rhode Island,
et al., Plaintiffs-Appellees,
v.
UNITED STATES DISTRICT COURT FOR the DISTRICT OF RHODE
ISLAND, et al., Defendants-Appellants.
Sheldon WHITEHOUSE, in his official capacity as United
States Attorney for the District of Rhode Island,
et al., Plaintiffs-Appellees,
v.
SUPREME COURT OF RHODE ISLAND, Acting Chief Justice Joseph
R. Weisberger, Florence K. Murray, Donald F. Shea, Victoria
Lederberg and David D. Curtain, as Acting Chief Disciplinary
Counsel, et al., Defendants-Appellants.
Sheldon WHITEHOUSE, in his official capacity as United
States Attorney for the District of Rhode Island,
et al., Plaintiffs-Appellants,
v.
UNITED STATES DISTRICT COURT FOR the DISTRICT OF RHODE
ISLAND, et al., Defendants-Appellees.
First Circuit.
Decided April 20, 1995.
Page 1351
Warren C. Nighswander, with whom Sulloway & Hollis, Concord, NH, was on brief, for appellants U.S. Dist. Court for Dist. of Rhode Island, et al.
John F. Dolan, with whom Elizabeth F. Sullivan and Rice Dolan & Kershaw, Providence, RI, were on brief, for appellants Supreme Court of Rhode Island, et al.
Lauren E. Jones and Jones Associates, Providence, RI, on brief, for American Civ. Liberties Union, Rhode Island Affiliate, Nat. Ass'n of Crim. Defense Attys. and Rhode Island Ass'n of Crim. Defense Attys., amici curiae.
S. Michael Levin, Mark W. Freel, Melissa D. Famiglietti and Edwards & Angell, Providence, RI, on brief, for Rhode Island Bar Ass'n, amicus curiae.
Margaret E. Curran, Asst. U.S. Atty., with whom Craig N. Moore, Asst. U.S. Atty., Providence, RI and Sara Criscitelli, U.S. Dept. of Justice, Washington, DC, were on brief, for appellees.
Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
TORRUELLA, Chief Judge.
The main question for decision is whether a United States District Court has the power to adopt a local rule that requires federal prosecutors to obtain judicial approval before they serve a subpoena on an attorney to compel evidence concerning a client. The United States District Court for New Hampshire held that the federal district court in Rhode Island has the power to adopt such a rule with respect to trial subpoenas, but does not have the power to do so with respect to grand jury subpoenas. For the reasons stated herein, we conclude that the United States District Court for Rhode Island has
Page 1352
the power to adopt the local rule in question, both with respect to trial and grand jury subpoenas. We therefore affirm in part and reverse in part.To fully appreciate the important interests at stake in this case, it is necessary briefly to review some of the recent history leading to this lawsuit.
I. Attorney-Subpoenas
Until recently, federal prosecutors rarely subpoenaed attorneys to compel testimony relating to their clients. This practice changed in the 1980s as the federal government stepped up its fight against organized crime and narcotics trafficking. Most significantly, Congress passed several new federal statutes which, in the eyes of federal prosecutors, make attorneys fertile ground for eliciting incriminating information about the targets of federal investigations and prosecutions. 1
Because service of a subpoena on an attorney implicates the attorney-client relationship, and thus raises ethical issues for prosecutors, the United States Department of Justice issued guidelines for federal prosecutors seeking to subpoena an attorney. See Executive Office for the United States Attorneys, Department of Justice, United States Attorneys' Manual Sec. 9-2.161(a) (1985). 2 In addition, the American Bar Association (the "ABA") adopted an amendment to its Model Rules of Professional Conduct creating an ethical prohibition against subpoenaing a lawyer/witness without a showing of need, an adversary hearing, and prior judicial approval. See Model Rules of Professional Conduct Rule 3.8(f), reprinted in 6 Laws. Man. on Prof. Conduct (ABA/BNA) 25, 26 (Feb. 28, 1990). The instances of federal prosecutors subpoenaing attorneys to compel evidence regarding their clients have, nevertheless, continued to increase. 3
Page 1353
II. The Present Litigation
In January 1984, the Rhode Island Supreme Court established the Committee to Study the Rules of Professional Conduct (the "Rules Committee") to study and provide recommendations regarding whether Rhode Island should adopt the ABA's Model Rules of Professional Conduct. In February 1987, the Rules Committee published a list of proposed rules and solicited comment from all members of the Rhode Island Bar. The Rhode Island Supreme Court later held a public hearing and received additional comments on the proposed rules. On November 1, 1988, the Rhode Island Supreme Court adopted the proposed Rules of Professional Conduct as an amendment to Rhode Island Supreme Court Rule 47. Among the rules adopted was Rule 3.8(f), which provides:
Rule 3.8. Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall:
* * * * * *
(f) not, without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer to provide evidence concerning a person who is or was represented by the lawyer when such evidence was obtained as a result of the attorney-client relationship.
On April 20, 1989, the United States District Court for Rhode Island issued an order incorporating the Rhode Island Rules of Professional Conduct, including Rule 3.8(f), into its local rules (federal rule hereinafter referred to as "Local Rule 3.8(f)"). 4
On August 2, 1991, the United States Attorney for Rhode Island petitioned the Rhode Island Supreme Court requesting that the court amend the state rule to waive its application to federal prosecutors practicing before Rhode Island's federal courts. The state court invited briefs from the United States Attorney and interested members of the Rhode Island Bar and, after a hearing, denied the petition to amend. The United States Attorney then wrote to the United States District Court for Rhode Island requesting that it exempt federal prosecutors from Local Rule 3.8(f). When the district court denied that request, the United States Attorney petitioned this court for a writ of mandamus requiring the district court to exempt federal prosecutors from the local rule. We dismissed the petition, stating that "the proper method for mounting a facial challenge to the validity of [Local] Rule 3.8(f) ... is through an action for declaratory and/or injunctive relief filed in the district court."
The United States Attorney, and two of his assistants (the "plaintiffs"), then commenced the instant action against the United States District Court for Rhode Island and its sitting judges (collectively, the "federal defendants"), the Rhode Island Supreme Court and its sitting justices, and Rhode Island's Chief Disciplinary Counsel (collectively, the
Page 1354
"state defendants"), seeking declaratory and injunctive relief to prevent the defendants from enforcing the state or federal versions of Rule 3.8(f) against federal prosecutors practicing in Rhode Island's federal courts. 5Upon cross motions for summary judgment, the district court struck down Local Rule 3.8(f) as applied to grand jury subpoenas but upheld the rule as applied to trial subpoenas. The district court 1) granted plaintiffs' motion for summary judgment in part, holding Local Rule 3.8(f) invalid as applied to grand jury subpoenas because it exceeds the federal district court's limited rule-making power; 2) held that the state version of Rule 3.8(f) cannot be applied to federal prosecutors at the grand jury stage without violating the Supremacy Clause of the United States Constitution; and 3) granted the federal defendants' motion for summary judgment in part, holding Local Rule 3.8(f) as applied to trial subpoenas within the district court's rule-making authority. Almond v. U.S. Dist. Court for Dist. of R.I., 852 F.Supp. 78 (D.N.H.1994). These cross-appeals followed.
The material facts are undisputed. We review de novo the district court's rulings of law made in connection with a summary judgment motion. See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994).
We addressed the nearly identical issues presented in this case previously in United States v. Klubock, 832 F.2d 649, 653-54 (1st Cir.1986) ("Klubock I "), vacated, 832 F.2d 664 (1st Cir.1987) (en banc by an equally divided court) ("Klubock II "). In Klubock I, we held that the United States District Court for Massachusetts has the power to adopt an ethical rule ("PF 15") similar to the Rhode Island rule at issue in this case. The original panel opinion in Klubock I was withdrawn, however, when we accepted a petition for rehearing en banc. Upon rehearing en banc, the full court split three-to-three, therefore affirming, by an equally divided court, the district court decision upholding the ethical rule in question. United States v. Klubock, 832 F.2d 664 (1st Cir.1987), aff'g by equally divided court, 639 F.Supp. 117 (D.Mass.1986). 6 Neither Klubock I nor Klubock II are controlling precedent, although the reasoning of both decisions remains of potential persuasive authority. See Trans World Airlines v. Hardison, 432 U.S. 63, 73 n. 8, 97 S.Ct. 2264, 2271 n. 8, 53 L.Ed.2d 113 (1977). See also Charles A. Wright, The Law of Federal Courts 758 (4th ed. 1983).
In Klubock I, we recognized the ethical and legal implications of prosecutors subpoenaing attorneys for the purpose of compelling evidence concerning their clients. We noted that the serving of a grand jury subpoena on an attorney to compel evidence concerning a client may: 1) chill the relationship between...
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