they claim require that the subpoenas be quashed. Those challenges may be summarized as follows:
(a) the subpoenas intrude upon the ongoing lawyer/client relationship of the six(6) individuals currently represented by the law firm subpoenaed in Grand Jury Matter No. 86-525-5 and the single individual currently represented by the firm subpoenaed in Grand Jury Matter No. 86-525-6 in violation of the Sixth Amendment to the United States Constitution;
(b) the subpoenas intrude upon the aforementioned ongoing lawyer/client relationships in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution;
(c) the subpoenas intrude upon individual client's choice of representation in violation of the Sixth Amendment and the Due Process Clause of the Fifth Amendment;
(d) the act of producing the documents sought by the grand jury may tend to implicate the individuals in the commission of the very acts for which they have sought representation;
(e) the government has failed to proffer any reason why the information sought cannot be obtained through other means, thereby avoiding interference with ongoing lawyer/client relationships;
(f) the use of a grand jury subpoena in these matters to secure the information sought by the government violates Rule 17(c) of the Federal Rules of Criminal Procedure and this court should quash the subpoenas pursuant to its supervisory power over the operations of the grand jury; and
(g) the subpoena issued in Grand Jury Matter No. 86-525-5 violates Rule 17(c) of the Federal Rules of Criminal Procedure in that it is overbroad, unspecific and might require the law firm to produce information unnecessary and unwanted by the Grand Jury since the subpoena only identifies the individuals by their first and last names and provides no other information which would demonstrate that these are, in fact, the individuals which the Grand Jury seeks such information with regard to.
Counsel argue that before an attorney for an unindicted target of a grand jury investigation may be compelled to produce the documents and information delineated above, the government should be required to make a preliminary showing of: (1) the relevance of the attorney's testimony and records; (2) an important need for the testimony and documents; and (3) the lack of an alternative source from which the information sought may be obtained.
Counsel first attempt to anchor their argument that such a preliminary showing should be required upon the Fifth and Sixth Amendments to the United States Constitution, and more specifically, an individual's purported right to counsel of his or her own choosing. As is admitted by counsel for both law firms, the right to counsel specified in the Sixth Amendment does not attach at the grand jury stage. An individual subpoenaed to testify before a grand jury has neither a right to have counsel appointed to "represent" him, nor a right to have counsel he has retained on his own accompany him into the grand jury room. See, e.g., In re Grand Jury Subpoena Served Upon Doe, 759 F.2d 968 (2d Cir. 1985), rev'd. en banc, 781 F.2d 238. Thus, with the possible exception of the six(6) individuals the law firm in Grand Jury Matter No. 86-525-5 asserts that it continues to represent, Motion to Quash, Doc. #1, para. 7, and the single individual in Grand Jury Matter No. 86-525-6 who has retained that firm to represent him with regard to this grand jury investigation, Motion to Quash, Doc. #1, para. 3, the Sixth Amendment and the rights that it provides thereunder at present provide no basis for the firms' argument. As to the six(6) individuals in Grand Jury Matter No. 86-525-5 just mentioned, with the exception of one(1), the firm has failed to offer any explanation as to the nature of its continuing representation of these individuals. It is unclear whether it represents them in civil or criminal litigation, and if the latter, whether these individuals have sought the firm's legal counsel only with regard to this grand jury investigation or some other criminal prosecution. As shall be seen, only in the latter situation would the firm possess some basis for its argument that the subpoena should be quashed. As to the one individual the firm subpoenaed in Grand Jury Matter No. 86-525-5 has offered some explanation as to the nature of its continuing representation and the single individual represented by the firm subpoenaed in Grand Jury Matter No. 86-525-6, it is clear that such representation does not pertain to, e.g., an impending state criminal prosecution. See, e.g., In Re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984). Thus, we are not presented with a situation where the attorneys' compliance with the subpoenas at issue here might result in their disqualification in another case. Therefore, we find no basis in the Sixth Amendment to quash the subpoenas as they pertain to any of the individuals either firm claims to represent.
The firms' next line of attack upon the subpoenas is the Due Process Clause of the Fifth Amendment. Relying heavily upon Judge Rosenn's opinion in In Re Grand Jury Subpoena Served Upon Doe, 759 F.2d 968, counsel argue that under the Due Process Clause, a right to counsel of one's choice may exist regardless of whether formal criminal proceedings have been instituted against the individual. In In Re Grand Jury Subpoena Served Upon Doe, Judge Rosenn, sitting in the Second Circuit by designation, concluded that,
when a subpoena is issued to an attorney to testify before a grand jury investigating his client whom he has heretofore represented, and where the attorney will be disqualified if he testifies, the Government should make a preliminary showing of relevance and reasonable need.