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April 30, 1976

In re GRAND JURY INVESTIGATION, Joseph B. Sturgis, Esq., Witness

The opinion of the court was delivered by: BECKER


 This matter involves the nature and scope of the attorney work product doctrine as it applies to grand jury witnesses.

 In connection with its investigation of certain bank loan transactions, the grand jury issued a subpoena duces tecum to the respondent, an attorney with a law firm which represents the bank. The bank, as client, waived the attorney-client privilege, but the witness asserted the work product doctrine in refusing to produce eight particular documents from his legal files or to answer related questions. The United States, on behalf of the grand jury, moved for an order compelling full compliance with the subpoena. *fn1" The matter at issue can be understood only in light of the unusual nature of the criminal investigation which underlies it and which may be summarized as follows.

 The grand jury suspects that certain bank customers may have made false statements in applying for loans, in violation of 18 U.S.C. § 1014. Also under investigation, however, is the possibility that certain bank officers, knowing that criminally false statements had been made in loan applications, actively concealed that information from responsible authorities, in violation of 18 U.S.C. § 4, which forbids misprision of felony. *fn2" Thus, the advices of counsel to bank employees regarding the legal effect of particular statements in loan applications could bear on whether the bank or its officers had "knowledge of the actual commission of a felony," an element of misprision. Concomitantly, the bank officers' knowledge of their obligation (if any) to report what they knew might, in the grand jury's view, bear on their criminality vel non.

 Because of the very nature of the suspected crime, then, this is probably a rare case where the advices of counsel might be "relevant to an investigation being conducted by the grand jury and properly within its jurisdiction" under the test of In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93 (3d Cir. 1973); see also Schofield II, 507 F.2d 963 (3d Cir. 1975). And even in this case we probably would not have been required to reach the questions discussed below had there not been a waiver of the attorney-client privilege. The precise documents at issue are two memoranda of law researched by associates of the respondent and the notes underlying one of them; a draft of a letter, never ultimately sent, from respondent to a bank officer; a page of respondent's handwritten notes to himself on legal questions involved in the loan transactions; and memoranda for the file of three telephone conversations with bank officers or employees.

 We observe preliminarily that we are disturbed by the practice of calling a lawyer before a grand jury which is investigating his client, especially where the government does not have good grounds for belief that the lawyer possesses unprivileged, relevant evidence that cannot be obtained elsewhere. The dangers and disadvantages of the practice have been demonstrated in such cases as In re Terkeltoub, 256 F. Supp. 683 (S.D.N.Y. 1966); In re Kinoy, 326 F. Supp. 400 (S.D.N.Y. 1970); and In re Stolar, 397 F. Supp. 520 (S.D.N.Y. 1975). The practice permits the government by unilateral action to create the possibility of a conflict of interest between attorney and client, which may lead to a suspect's being denied his choice of counsel by disqualification. The very presence of the attorney in the grand jury room, even if only to assert valid privileges, can raise doubts in the client's mind as to his lawyer's unfettered devotion to the client's interests and thus impair or at least impinge upon the attorney-client relationship. The importance of that relationship and of its protection have only recently been reiterated by the Supreme Court:

Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests.

 United States v. Nobles, 422 U.S. 225, 237, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975), quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 91 L. Ed. 451, 67 S. Ct. 385 (1947). Moreover, as Justice Jackson noted in his Hickman concurrence:

[It] too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs. The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences of such a practice as petitioner urges secondarily but certainly.

 329 U.S. at 514-15, cited in Nobles, supra, 422 U.S. at 237. But to say the practice is bad or distasteful is not to say it is unlawful, as Judge Frankel made clear in Kinoy, supra. The government has pressed for respondent's appearance before the grand jury, and we accordingly proceed to consider whether he must comply with the subpoena.

 We agree with respondent that work product is a valid ground on which to refuse a grand jury's subpoena or questioning. In United States v. Nobles, 422 U.S. 225, 236-40, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975), the Supreme Court held that the work product doctrine, first authoritatively enunciated in the context of civil discovery in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947), aff'g 153 F.2d 212 (3d Cir. 1945) (en banc), also gives rise to a qualified testimonial privilege assertable by a witness in a criminal trial. *fn3" Under Fed.R.Evid. 1101(c), (d)(2), evidentiary privileges also apply in grand jury proceedings.3A Accordingly, we hold that a grand jury witness may resist questioning or a subpoena on grounds that it calls for the production of work product. *fn4"

 In Nobles, as in Hickman, the material in controversy was an attorney's written report of an investigative interview with a witness. The Court held that by calling as a trial witness the investigator who made the report, Nobles waived the work product privilege. 422 U.S. at 239-40. Having found this privilege waived in any case, the Court had no need to define its scope. The Court in Hickman indicated that the important public policy supporting the privacy of an attorney's file in preparing for adversary litigation was qualified in some circumstances by the legitimate demands of fact-finding in civil cases, and Fed.R.Civ.P. 26(b)(3) now codifies this view. We cannot say that this same policy would fare better in the grand jury context than in the civil setting, or than did the First, Fourth, and Fifth Amendment, legislative or executive privileges considered in several recent grand jury cases. *fn5" In sum, we think the work product privilege assertable in bar of grand jury inquiry is essentially coextensive with the work product doctrine applicable to civil discovery, from which the qualified testimonial privilege derives.

  One important limitation upon the work product doctrine is temporal: if the documents in question were not produced "in the course of preparation for possible litigation after a claim has arisen," Hickman, supra, 329 U.S. at 497, then they cannot be work product as that term has come to be defined. *fn6" If respondent's papers predate that time, difficult though it may be to pinpoint, irrelevance under Schofield, supra, and attorney-client privilege are the only applicable defenses to their production. *fn7" In view of the respective times at which the documents in question were ...

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