In Re: Grand Jury Subpoena United States of America v. Under Seal
204 F.3d 516, 46 Fed. R. Serv. 3d 165, 2000 U.S. App. LEXIS 2793 (2000)
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Rule of Law:
The attorney-client privilege does not protect a client's identity when the client has authorized the disclosure of communications revealing the client's motives or purposes for seeking legal advice to third parties, as such information ceases to be confidential upon disclosure.
Facts:
- A federal grand jury in the District of Maryland was investigating allegations that 37 Forrester Street, S.W., Washington, D.C., was an open-air drug market controlled by Erskine “Pee Wee” Hartwell and his alleged confederates.
- The property at 37 Forrester Street was titled in the name “Daniel C. Quispehuman” since June 23, 1991, whom the government believed to be a straw owner.
- In 1998, the Bellview Improvement Council, Inc. (BIC), a non-profit community organization, retained a law firm to address drug activity at the property.
- On September 11, 1998, and April 9, 1999, Mark S. Davies, counsel for BIC, sent letters to “Daniel Quispehuman” demanding that he stop the drug dealing and threatening a civil nuisance lawsuit.
- On April 28, 1999, attorney Mark Rochon wrote a letter to Davies, stating he would undertake “clarification of ownership” for the property, that his client hoped to re-title it in his name, and that his client would make efforts to deal with the problems described in Davies' letters, requesting a two-week postponement of any lawsuit.
- On May 17, 1999, Davies spoke with Rochon, who informed him the property was “boarded up” and its “tenants have been evicted,” but Rochon declined to disclose his client’s name, stating that he did not represent Mr. Quispehuman.
Procedural Posture:
- A federal grand jury in the District of Maryland served a subpoena on attorney Mark Rochon, commanding him to testify and produce documents concerning his client's identity.
- Rochon moved to quash the subpoena, contending that requiring him to disclose the identity of his client would reveal the client’s purposes and motives for retaining him, invading the attorney-client privilege.
- The unidentified client moved to intervene and join Rochon's motion to quash.
- The district court granted the client’s motion to intervene but denied Rochon and his client’s motions to quash on September 1, 1999.
- The client filed a timely notice of appeal to the Fourth Circuit, and the district court stayed enforcement of the subpoena pending the appeal.
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Issue:
Does the attorney-client privilege protect the identity of a client from disclosure in response to a grand jury subpoena when the client's attorney, with the client's authorization, has already revealed the client's motives and purposes for seeking legal advice to third parties?
Opinions:
Majority - Chief Judge Wilson
No, the compelled disclosure of the client’s identity would not violate the attorney-client privilege in this case because the client authorized the public disclosure of communications revealing his motives for seeking legal advice, thereby waiving confidentiality. The attorney-client privilege is narrowly construed and generally does not protect a client’s identity, fee amounts, or the general purpose of work performed, unless disclosure would essentially reveal a confidential communication. While the Fourth Circuit, in NLRB v. Harvey, recognized a narrow exception for cases where a client’s identity is so intertwined with confidences that disclosure of one reveals the other, this exception does not apply when the client voluntarily discloses the confidential communication. Here, the client asserted that disclosing his identity would reveal confidential motives (concern over allegations, avoiding litigation, re-titling property, remedying drug problems). However, these motives were voluntarily disclosed by attorney Rochon in his April 28 letter to Davies, which the client authorized. Once a client authorizes the disclosure of information to third parties, even if to avoid litigation, those motives or purposes cease to be confidential. The court distinguished Harvey because, in that case, the client did not authorize the public disclosure of confidential interests; instead, a third party made the disclosure. Allowing the privilege to extend to the client's identity in these circumstances would permit a client to 'bootstrap a privilege' by anonymously disclosing information that could have been kept confidential, which the privilege is not designed to do.
Analysis:
This case significantly clarifies the limits of the attorney-client privilege regarding client identity, especially when a client's objectives are revealed to third parties. It reinforces the principle that the privilege protects only confidential communications, and that voluntary disclosure, even if authorized by the client for strategic purposes like avoiding litigation, destroys that confidentiality. For legal practitioners, the ruling underscores the critical importance of carefully considering the implications of any public or third-party communications made on a client's behalf, as such actions can inadvertently waive privilege over information like client identity. This decision limits the ability of clients to use an attorney as a shield for anonymous business dealings that involve public engagement.
