Thursday, October 20, 2005
The Ninth Circuit upheld a district court order quashing a federal grand jury subpoena to defense counsel because compliance would have effectively destroyed the attorney-client relationship. Federal Rule of Criminal Procedure 17(c) permits a court to quash a subpoena if it is "unreasonable or oppresive," a standard that is very difficult to meet under the analysis in United States v. R. Enterprises, 498 U.S. 292 (1991), that views grand jury subpoenas as presumptively reasonable. In United States v. Bergeson (here), the defense attorney, Nancy Bergeson, was subpoenaed to testify before a grand jury about her communication with her client, Michael Casey, about his trial date after Casey failed to appear. While Bergeson conceded her communication with Casey of the trial date was not privileged (apparently on the same basis that courts have held client identity and fee information is generally unprotected), the Ninth Circuit held that quashing the subpoena was proper because requiring her to testify against her client would interfere with the attorney-client relationship when the government had access to other sources of information to prove Casey's knowledge of the trial date (an element of the offense of bail-jumping).
The court stated: "That the government does not need the testimony bears on whether the subpoena is 'unreasonable,' and that it would destroy the attorney-client relationship bears on whether the subpoena is 'oppressive.'" The Ninth Circuit also noted that the U.S. Attorney's Manual, which states that all reasonable alternatives should be pursued before issuing a subpoena to an attorney to testify against a client, cut in favor of quashing the subpoena:
There were good reasons for the district court’s exercise of discretion. A client’s confidence in his lawyer, and continuity of the attorney-client relationship, are critical to our system of justice. The Justice Department restraints on issuing subpoenas to lawyers that we discussed in United States v. Perry and that the district court cited in this case are instructive on this point. Though these Justice Department directives are directions by an employer to its employees and not law, they demonstrate the recognition that the government has given to this fundamental interest. Issuing subpoenas to lawyers to compel them to testify against their clients invites all sorts of abuse.