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IN RE GRAND JURY MATTER

October 28, 1987

In Re Grand Jury Matter Number 86-525-5; In Re Grand Jury Matter Number 86-525-6

E. Mac Troutman, Senior United States District Judge.


The opinion of the court was delivered by: TROUTMAN

HON. E. MAC TROUTMAN, SENIOR UNITED STATES DISTRICT JUDGE

 Presently before us are two Motions to Quash Subpoenas issued pursuant to a grand jury investigation upon application of the United States Attorney's Office. The subjects of the grand jury investigation are the alleged members of an illegal narcotics organization whom the grand jury is investigating for possible violations of federal narcotics laws as well as income tax evasion. (See Motion to Quash, Grand Jury Matter No. 86-525-5, Doc. #1, Schofield affidavit attached thereto as Exhibit "C".)

 The government seeks to obtain from two law firms all records reflecting the amount of fees and/or costs received by the firms from or on behalf of individuals named in the grand jury subpoenas. Specifically, the government seeks seven(7) discrete categories of information, which are as follows: (1) Cash Receipts entries; (2) Bank deposit tickets; (3) Cash Receipts issued for payments (including cash or check); (4) Payment ledgers; (5) Retained copies of any checks received; (6) Any documents identifying the person making the payment; and (7) Records identifying things of value received in lieu of cash or check and the identity of the person tendering the things of value. (See id. at Exhibit "A" and Motion to Quash, Grand Jury Matter No. 86-525-6, Doc. #1, Exhibit "A".) The subpoena in Grand Jury Matter No. 86-525-5 is directed to the "Custodian of Records" of the law firm. The grand jury in this subpoena seeks the documents and information described above with regard to twenty-four(24) different individuals who are designated by their first and last names only. Of these twenty-four(24) individuals, counsel for the law firm to which the subpoena is directed represents that the firm has in the past represented eleven(11) people with names matching those on the list, and of those eleven(11), continues to represent six(6) of them in an undisclosed capacity. The subpoena in Grand Jury Matter No. 86-525-6 is directed to either the firm's senior partner or the firm's designated "Custodian of Records". Here, the grand jury seeks the documents and information listed above with regard to but a single individual. The individual is described not only by his first and last name, but also by an address.

 The law firms to which the subpoenas are directed have raised a variety of objections, constitutional and otherwise, which 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. *fn1"

 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. *fn2"

 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 ...


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