Saturday, July 9, 2005
To say that cases involving the crime-fraud exception are complicated is certainly an understatement, but a recent decision of the First Circuit in In re Grand Jury Investigation* (here) is one of the more Byzantine. The court's summary of the case, with the usual deletion of identifying information, is as follows:
In the course of a grand jury investigation in [[ ]], a lawyer (Lawyer I) directed his client ("Client A") to commit perjury in testifying before the grand jury, after initially advising him to tell the truth. The same lawyer has also represented another client ("Client B") who might or might not have some connection with the earlier perjury. In [[ ]], Lawyer I told Client A to recant the false testimony. Lawyer I did so after consulting with Lawyer II, who represented [[ ]] other clients (collectively "Group C") variously connected with Client B and with pertinent events.
Learning of the perjury, the government is now investigating the possible involvement of others with that perjury and with other possible crimes. The present grand jury summoned Lawyer I, and the prosecutor sought to question him about the prior perjury of Client A including the involvement of others with that perjury and its subornation. Lawyer I refused to answer a number of these questions, saying that answering them would invade Client B's attorney-client privilege and the joint-defense privilege enjoyed by the Group C clients.
Got that? It takes a while, but the multiple representation and the joint defense privilege are nothing new in wide-ranging grand jury investigations. What makes the case interesting is an order by the district court prohibiting Lawyer I from communicating with Client B or Group C about the government's effort to compel Lawyer I to testify before the grand jury. My surmise is that the government sought the order out of a concern that Client B, and perhaps one or more members of Group C, were in on the perjury by Client A concocted with Lawyer I, and would tailor their testimony to the (perjurious) testimony of Client A to present a consistent story. If Lawyer I were to tell others what Client A said in the grand jury, then other witnesses would be able to work around the perjury and the government's investigation of a possible conspiracy to obstruct justice goes down the tubes.
Client B and Group C challenged the order prohibiting Lawyer I from consulting with his client (Client B) and with the attorney for Group C, with whom he had shared confidential information. The First Circuit upheld the order, holding that while Federal Rule of Criminal Procedure 6(e)(2) only imposes a secrecy duty on the government attorney and grand jurors, not witnesses, a court has the inherent power in special cases to effectively silence a witness:
We now decide that the rule's phrasing can, and should, accommodate rare exceptions premised on inherent judicial power. Absent restriction, courts have inherent power, subject to the Constitution and federal statutes, to impose secrecy orders incident to matters occurring before them. The general power is regularly expressed in orders limiting access to discovery materials, closing sensitive proceedings, and in other contexts. Sometimes these powers are reflected in or reconfirmed by rules, e.g., Fed. R. Civ. P. 26(c), but orders of this kind predated such rules which ordinarily reflect or refine the underlying authority without displacing it.
There is, of course, a simple way to avoid the problem that arose here: don't tell your client to commit perjury before the grand jury (or anywhere else for that matter)! At a minimum, I suspect that Lawyer I's law license is in a bit of jeopardy once the Massachusetts Board of Bar Overseers gets the case, if it hasn't already begun a disciplinary proceeding. (ph)
* Don't they all seem to get that name, or something similar? It's enough to drive you nuts if you ever have to write a brief or article on the subject.