Petition — Durant v. United States

33-1468 MAR 5 1984

No. ALEXANDER L. STEVAS.

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

In re Grand Jury Investigaiion No. 83-2-35 (Durant)

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RicHARD Durant a member

of the Michigan and

Supreme Court Bars

2300 Penobscot Building

Detroit, MI 48226

Durant & Durant, P.C. (313) 961-6800

Of Counsel Petitioner, In Pro Per

ee ee me ee nn re ce

RENAISSANCE PRINTING, INC., 76 WEST ADAMS

8TH FLOOR, DETROIT, MICHIGAN 48226 (313) 964-3185

QUESTION PRESENTED

Is the indentity of a client protected by the attorney-client

privilege where:

(a) the client could not be constitutionally compelled to

reveal the same information; and

(b) disclosure would provide the ‘‘last link’’ in an otherwise

existing chain of incriminating evidence which the govern-

ment conceeds will lead to the client’s immediate arrest?

PARTIES TO PROCEEDING

RicHarD Durant — Petitioner

Unrtep States or AMERICA — Respondent

TABLE OF CONTENTS

QUESTION PRESENTED ................005.

PARTIES TO PROCEEDING .... %...........

TASRROP CONTENTS ............... 0.050%;

TABLE OF AUTHORITIES ................05.

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RULE AND CONSTITUTIONAL PROVISIONS

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STATEMENT Of THECASE .................

REASONS FOR GRANTING THEWRIT ......

The Decision Below Conflicts With The Decisions

RS pene ee eS

The Question Is Of Major Signifitance To The

Legal Profession And To The Administration Of

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APPENDIX A:

Opinion of the United States Court of Appeals for

the Sixth Circuit in Jn re Grand jury Investigation No.

83-2-35 (Durant)(CA 6, decided Dec. 7, 1983)... ..

APPENDIX B:

Order Compelling Disclosure by the United States

District Court, Eastern District of Michigan, South-

ON I ey ee Oy a

APPENDIX C:

Order of Contempt by the United States District

Court, Eastern District of Michigan, Southern

PNA es Sere eG ee ee

APPENDIX D:

Opinion of the United States Court of Appeals for

the Sixth Circuit in Jn re Grand Jury Proceedings —

Larry Gordon, No. 83-3243 (CA 6, decided Dec. 5,

DD be Sku IT oui sake ad ce oR SANE eleGee

18a-

19a

TABLE OF AUTHORITIES

CASES PAGE

Annesley v. Earl of Anglesea, 17 How.St.Tr. 1129,

oo ee eer re eer 9

Baird v. Koerner, 279 F.2d 623 (CA9, 1960) ..... 9

Fisher v. United States, 425 U.S. 391 (1976) ...... 12

Geders v . United States, 425 U.S. 80 (1976) ....... 11

Hoffman v. United States, 341 U.S. 479 (1951) .... 12

In re Grand Jury Investigation No. 83-2-35,

No. 83-1290 (Durant) (CA 6, decided Dec. 7,

Be vs oa ok piokiale SEA 4 EOS PME castes iii, 1, 8,

10

In re Grand Jury Proceedings — Larry Gordon, No.

83-3243 (CA 6, decided Dec. 5, 1983) ....... iii, 7, 13

In re Grand Jury Proceedings (Jones), 517 F.2d 666

i Teo Cains svi <eaie hE PCRS ACEO

In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026

ee EPEC LE eee

In re Grand Jury Proceedings (Twist), 689 F.2d 1351

eg I ano hs Cs 4 0.4 60S bos a NSe%

In re Grand Jury Subpoena duces tecum (Marger/

Marenbach), 695 F.2d 363 (CA 9, 1982).......

NLRB v. Harvey, 349 F.2d 900(CA 4, 1965) ....

Temple v. Commonwealth, 75 Va. 892 (1880) .....

United States v. Colandra, 414 U.S. 346 (1974) ....

Upjohn Co. v. United States, 449 U.S. 383 (1981) . .

Constitution, Statute and Rule:

United States Constitution:

CE SFIS ARP ree

EE, a eee

, Le Cee TB > 0 | 6 ) er

Federal Rules of Evidence, Rule 501 .......

MISCELLANEOUS

8 Wigmore, Evidence, Sec. 2291 (McNaughton

aa) ke ins Patent Ng ek oa a tal’

11, 12

2,11

2

2

9

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

NO.

In re Grand Jury Investigation No. 83-2-35 (Durant)

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals is as yet unreported

and is reproduced at pp. la-15a, infra. No opinion was issued

by the District Court; the Order Compelling Disclosure is

reproduced at pp. 16a-17a, infra; the Order of Contempt is

reproduced at pp. 18a-19a, infra.

JURISDICTION

The opinion of the Court of Appeals (pp. la-15a) was issued

on December 7, 1983.' This Court has jurisdiction pursuant

to 28 USC 1254(1).

RULE AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides that: ‘‘No person ... shall be compelled in any

criminal case to be a witness against himself.’’

The Sixth Amendment to the United States Constitution

provides that: ‘‘In all criminal prosecutions, the accused shall

have the right... to have the Assistance of Counsel for his

defense.”’

Federal Rule Evid. 501 provides, ‘‘Fxcept as otherwise re-

quired by the Constitution of the United States . . . the privi-

lege of a witness [or] person shall be governed by the principles

of the common law as tney may be interpreted by the courts of

the United States in the light of reason and experience.’’

' On January 12, 1984 the 6th Circuit Court of Appeals granted a 30-day

stay of that Court’s Mandate to permit the filing of this Petition. A re-

quest to extend that stay was filed by Petitioner on February 14, 1984.

STATEMENT OF THE CASE?

Attorney Richard Durant (Durant), Petitioner herein, seeks

review of a finding of contempt for failure to disclose the

identity of a client to a grand jury upon order of court.

On March 1, 1983 Special Agent Edwards (Edwards) of the

Federal Bureau of Investigation (FBI) visited Durant’s office

and explained that the FBI was investigating the theft of

numerous checks made payable to International Business

Machines, Inc. (IBM). Edwards said that a number of the

stolen checks had been traced and deposited into various bank

accounts under names of non-existent organizations, at least

one of which included the initials ‘‘IBM.’’ He produced a

copy of a certified $15,000.00 check, drawn upon one of these

ficticious accounts, made payable to Durant’s !aw firm.

Durant informed the FBI that this check had been received,

endorsed and banked by his firm for services rendered to a

client in two cases, one of which was ‘‘finished’’ and the other

of which was ‘‘open.’’ He refused to disclose the identity of

the client to whose credit the proceeds had been applied, say-

ing that giving this information might’ tend to incriminate the

client and asserting the attorney-client privilege.

? This Statement of the Case is taken largely from the statement of facts

in the opinion below.

* The next day, March 2, 1983, the ‘‘might’’ apparer-tly turned into cer-

tainty, for the FBI agents announced they would arrest the client as soon

as they learned the client's identity. See page 5, infra.

Durant was subpoenaed to appear before the Grand Jury

the following day, March 2, 1983, where he again refused to

identify his client, giving the same grounds. The government

immediately moved the United States District Court for the

Eastern District of Michigan for an Order requiring Durant to

provide the requested information. At a hearing that same

afternoon Durant informed the Court that disclosure of his

client’s identity could incriminate that client in criminal ac-

tivity under investigation so sis to justify invoking the attorney-

client privilege.

Durant poinied out that the requested information could be

obtained through other methods which would not violate the

attorney-client privilege:

‘*] should add that if the facts as the agents have discussed

them with me are correct and there is a substantial

number of checks floating around the city, all those

checks come back to the drawee bank with bank endorse-

ments on the back. It should be, it seems to me, equally

possible, without violating the at-orney-client privilege,

for the agents to find out who presented, who cashed and

to trace their money through normal commercial chan-

nels, to say nothing of the fact that who opens the mail at

IBM now obviously becomes of significant importance.”’

The Court — The Honorable Julian Abele Cook, Jr., Dis-

trict Judge — ruled that the information sought by the Grand

Jury was not protected by the attorney-client privilege and

ordered Durant to identify his client (pp. 16a-17a, mfra). Upon

refusal to comp!y with this order, Durant was held in con-

tempt (pp. 18a-19a, mfra). Further proceedings were staved

aad ts. 1983, and subsequently stayed until March 22,

1983, to allow Durant to seek appellate review.

In an obvious attempt* to ascertain the identity of Durant’s

client in an alternative manner, the United States issued a se-

cond subpoena to Durant on March 9, 1983, ordering him to

appear before the grand jury on March 16, 1982 and produce

the following documents:

‘**A listing of all clients of the law firm of Durant &

Durant, P.C., and Richard Durant as of February 18,

1983 including all clients with active cases and clients

who owe fees or have provided a retainer to the firm and

all client ledger cards and other books, records and

documents reflecting or recording payments to the law

firm for the period February 1, 1983 to March 1, 1983.’’

Durant moved to quash this subpoena duces tecum. At the

March 22, 1983 hearing on this motion, Durant again raised

the attorney-client privilege and again asserted that produc-

tion of the subpoenaed documents could implicate his client in

criminal activity. He also said that the FBI had admitted

before the the District Court Judge and himself in chambers

that the FBI would arrest the client immediately following

disclosure of the client’s identity.

‘*T would remind the Court that when, through the cour-

tesy of the Court, we had a session in chambers with the

members of the FBI present, as well as the United States

attorney and myself, the FBI members specifically said

— I can’t remember which one — specifically said that as

soon as we get the name of that client, we are going to ar-

rest the client. .... 2

This statement was never challenged, directly or indirectly,

by either the District Court or the United States.

In effect, the identity of the client was the last link of

evidence necessary to effect an indictment.

* This phrase is the choice of the Court of Appeals. See p 3a.

6

The Court was advised for the first time by Durant that

during the March 2, 1983 hearing the FBI had asked Durant,

under threat of harrassment, to breach the attorney-client

privilege and identify his client without informing the client.

‘*Furthermore — and I put this on the record after consul-

tation with my son, who told me I should have expressed

it on March 2nd. During the time the Court recessed,

preparatory to rendering an opinion, this gentleman —

the FBI agent whose name escapes me for the moment —

and I, the United States attorney were outside, and I was

given the proposition that I should tell the FBI the identi-

ty of my client but not tell my client that I had done so, so

that the FBI presumably could move in.

‘‘When I rejected what was propositicned to me, that I

should give the identity but delay telling my client that I

had done so, so presumably the same result could occur

— when I rejected that, I hope in jest, it was pointed out

that I could be printed and held incommunicado for six

or seven hours while the circuit was written [ridden (sic)]

with me, and I implied it was a good thing that i had in-

structed my office that if they hadn’t heard from me by

3:30, to come over here with a writ of habeas corpus. I

made a phone call.”’

This statement was never challenged, directly or indirectly,

by the government.

In effect, the identity of the client was important enough to

the FBI to warrant threats against the attorney so that he

would break the attorney-client confidentiality in an unethical

manner.

The Court was informed that disclosure of the requested in-

formation would not only implicate Petitioner’s client in

criminal activity, but it would implicate that client in the very

criminal activity for which the legal advice had been sought.

“COURT: Do you contend and do you submit that the

disclosure of the information which is sought by this sub-

poena, quote, would implicate your client in the very

criminal activity for which legal advice was sought?

‘“‘MR. DURANT: Yes, your Honor, I do.

“COURT: Other than — in what way do you contend

that it would?

‘“‘MR. DURANT: Sir, I’m in a catch-22 position again.

I can’t tell you. If I tell you, I have explained things that

my client obviously doesn’t wish to be disclosed.

“COURT: All right.”

The District Court, saying that the issues involved in the

first and second subpoenaes served upon Durant were

‘‘yotentially the same,’’ withheld a decision on Durant’s Mo-

tion to Quash the Subpoena Duces Tecum pending appellate

decision.

The Court of Appeals on December 7, 1983 affirmed the

District Court’s finding of contempt.

It unanimously held that Durant had failed to establish any

exception to the general rule that disclosure of the identity of a

client is outside the protection of the attorney-client privilege.

It specifically rejected (p 13a, infra) the exception of the ‘‘lart

link in an existing chain of incriminating evidence likely to

lead to the client’s indictment’ adopted by the 5th and 11th

Circuits (Jn re Grand Jury Proceedings (Pavlick), 680 F.2d 1026

(CA 5,1982) (en banc); In re Grand Jury Proceedings ( Twist), 689

F.2d 1351 (CA 11, 1982).

Two days previously the lower court had denied an appeal

involving essentially the same issue in Jn re Grand Jury Pro-

ceedings — Larry Gordon, No. 83-3243, (CA 6, decided

December 5, 1983). That decision is reproduced, infra, pp.

20a-31a. The earlier Gordon case — for which a Petition for a

Writ of Certiorari to the United States Court of Appeals for

the Sixth Circuit is currently pending in this Court — cited

this Durant case as precedent.

REASONS FOR GRANTING THE WRIT

The Writ of Certiorari should be grantee! for 2 reasons.

First, to resolve a conflict existing between the Circuits.

Second, to resolve a question of major significance to the

legal profession and to the administration of justice.

The Decision Below Conflicts With

The Decisions Of Other Circuits

The attorney-client privilege is historic. Its purpose

‘is to encourage full and frank communication between

attorneys and their clients and thereby promote broader

public interests in the observance of law and administra-

tion of justice. The privilege recognizes that sound legal

advice or advocacy serves public ends and that such ad-

vice or advocacy depends upon the lawyer’s being fully

informed by the client.’’ (Upjohn Co. v. United States, 449

U.S. 383, 389 (1981).

The purpose is destroyed if clients are reluctant to consult

with and confide in attorneys. To overcome that reluctance

the privilege was established prior to the reign of Elizabeth I°

* It began as a ‘‘point of honor’’ for the attorney; it had evolve by the

18th Century into the public policy we recognize today, when the

privilege is the client’s in order to have full consultation with legal

counsel.

and corifirmed in Annesley v. Earl of Anglesea, 17 How. St. Tr.

1129, 1225 (Ex.1743), as quoted in 8 Wigmore, Evidence, Sec.

2291, at 546 (McNaughton rev., 1961):

‘*The reason why attornies are not to be examined to

anything relating to their clients or their affairs is because they

would destroy the confidence that is necessary to be

preserved between them. This confidence between the

employer and the person employed, is so sacred a thing,

that if they were at liberty, when the present cause was

over that they were employed in, to give testimony in

favour of any other person, it would not answer the end

for which it was instituted. The end is, that persons with

safety may substitute others in their room; and therefore

if you cannot ask me, you cannot ask that man; for

everything said to him, is as if I had said it to myself, and

he is not to answer it.’’ (Emphasis added.)

Federal courts are unanimously of the opinion that the

identity of a client is, with limited exceptions, not protected by

the attorney-client privilege.

There are three of these limited exceptions, all based upon

Baird v. Koerner, 279 F.2d 623 (CA 9, 1960).

The first of these is known as the ‘‘legal advice’’ exception.

‘‘A significant exception to this principle of non-

confidentiality holds that such information may be

privileged when the person invoking the privilege is able

to show that a strong possibility exists that disclosure of

the information [the identity] would implicate the client

in the very matter for which legal advice was sought in

the first place.’’ (Jn re Grand Jury Subpoenas Duces Tecum

(Marger — Merenbach), 695 F.2d 363, 365 (CA 9, 1982).

10

The second of these is known as the ‘‘tantamount to a com-

munication’’ exception.

‘**To the general rule is an exception, firmly bedded as

the rule itself. The privilege may be recognized where so

much of the actual communication has already been

disclosed that identification of the client amounts to

disclosure of a confidential communication.’’ (NLRB v.

Harvey. 349 F.2d 900, 905 (CA 4, 1965)

The third of these is known as the “‘last link’’ exception.

‘*We have long recognized the general rule that matters

involving the payment of fees and the identity of clients

are not generally privileged. Jn re Grand Jury Proceedings,

(United States v. Jones), 517 F.2d 666 (5th Cir. 1975); see

cases collected id. at 670 n.2. There we also recognized,

however, a limited and narrow exception to the general

rule, one that obtains when the disclosure of the client’s

identity by his attorney would have supplied the last link

in an existing chain of incriminating evidence likely to

lead to the client’s indictment.’’ (Jn re Grand Jury Pro-

ceedings (Pavlick), supra, at 1027.)

The Sixth Circuit, in its decision here, is willing to agree

with the ‘‘legal advice’’ exception (p 10a, infra) and with the

‘‘tantamount to a communication’’ exception (p 12a, infra) but

rejects the ‘‘lask link’’ exception because

‘‘fajlthough the last link exception may promote con-

cepts of fundamental fairness against self-incrimination,

these concepts are not proper considerations to invoke

the attorney-client privilege. Rather, the focus of the in-

quiry is whether disclosure of the identity would adverse-

ly implicate the confidentiality of communications. Ac-

cordingly, this Court rejects the lask link exception as ar-

ticulated in Pavlick.’’ (Durant, p 13a, infra.)

11

There is thus created conflict and confusion between the

Circuits. It is made the more serious because it involves a

client’s Fifth and Sixth Amendment rights.

The Court of Appeals holds that implicating the client in

criminal activity by disclosing his identity ‘‘has no roots in

confidentiality or communication [and therefore] cannot be

advanced”’ as a justification for invoking the attorney-client

privilege.

But, given the circumstances of this case, what greater con-

cept of confidentiality or communication can there be than the

identity of the client?

The right to assistance of counsel in one’s defense includes

the right to confer with one’s lawyer (Geders v. United States,

425 U.S. 80 (1976)), and thus to disclose one’s identity.

What becomes of the Sixth Amendment right to counsel if a

potential defendant is afraid to confer with counsel lest, if his

identity is disclosed by such counsel, he will be arrested?

The use made here of the identity ‘‘rule’’ by the Sixth Cir-

cuit turns it into a tool to undermine the attorney-client

privilege and one’s rights under both the Fifth and Sixth

Amendments. It creates a powerfv] deterrent to any client

from making full disclosure, including his identity, to his at-

torney in order to seek legal advice.

Durant was not simply asked the ‘‘identity’’ of the client —

he was asked to give the name of the person who was involved

with a certified check drawn on an account containing stolen

funds. The FBI specifically said that once it had the name of

the client, the client would be arrested.

The attorney was being compelled explicitly to put his client

in jail.

This case demonstrates serious misuse of the grand jury

subpoena (cf. United States v. Calandra, 414 U.S. 346 (1974)).

12

The sanctity and trust of the attorney-client relationship is

corrupted to obtain information which cannot be constitu-

tionally compelled directly from the client. Could the grand

jury insist that the client say, ‘‘I am the person involved with

this check drawn on a phoney bank account?’’ And, which

this concededly provide the ‘‘last link’’ of evidence necessary

for indictment and arrest.

The attorney’s refusal to answer should be privileged unless

it is ‘* ‘perfectly clear, from a careful consideration of all the cir-

cumstances in the case, that . . . the answer cannot posst)ly have

such tendency’ to incriminate’’ his client. (Hoffman v. United

States, 341 U.S. 479, 488 (1951), quoting Temple v. Com-

monwealth, 75 Va. 892, 898 (1880) (emphasis added in Hoffman).

Only this standard is consistent with the holding in Fisher v.

United States, 425 U.S. 391 (1976), that the attorney-client

privilege shields compelled disclosure by the attorney of informa-

tion which, under the Fifth Amendment, may not be coerced

from the client.

The Court of Appeals maintained that ‘‘identity’’ is not a

‘‘communication.”’ Yet on the same page it ran a footnote point-

ing out the identity ‘‘was tantamount to a communication or ad-

mission from the clients to the attorney that ‘they had not paid

a sufficient amount in income taxes some one or more years in

the past.’’’ (p 13a, infra)

Here the identity is ‘‘tantamount to a communication ox ad-

mission from the client to the attorney that the client’’ is involved

in stolen funds and checks drawn on fraudulent bank accounts.

Certainly the FBI regarded it as tantamount to ‘‘a com-

munication or admission.’’ The arrest warrant was apparently

waiting, in blank, to be served.

To maintain the sanctity of the attorney-client relationship,

both attorney and client must be able to predict with a fair

13

degree of certainty whether particular discussions will be pro-

tected (Upjohn, supra, at 393).

The lower court’s decision creates uncertaintity and am-

biguity among the Circuits. It invites increased litigation

challenging the validity of similar orders compelling

testimony from attorneys where the attorney-client privilege is

claimed.

This is especially true considering the rules of professional

conduct requiring attorneys to preserve the confidentiality of

their communications with a client. By rejecting the “‘last

link’’ exception, t'ee Sixth Circuit never addressed the ques-

tion of whether or not the attorney can be compelled to reveal

information which cannot be sought from the client.

The result of the lower court’s decision will be delay while

attorneys litigate to see if they are legally and/or ethically per-

mitted to answer any grand jury questions involving the iden-

tity of a client.

An attorney-client privilege, if it is effectively to serve the

policies for which it is intended, must be applied in a uniform

and predictable fashion. If it is not, neither counsel nor client

can rely upon its protection; it will not encourage the com-

munication it was designed to promote.

The Question Is Of Major Significance

To The Legal Profession

And To The Administration Of Justice

Currently before this Court is a similar Petition for a Writ

of Certiorari to the United States Courts of Appeal for the

Sixth Circuit in Jn re Grand Jury Proceeding (Larry Gordon). Peti-

tioner herein joirs and adopts by reference the reasoning and

citations stated in Reason III of Petitioner Gordon’s Reasons

for Granting the Writ, with two additional arguments of his

own.

14

Point #1 concerns the legal profession.

The history of the privilege here at issue dates, as far as we

know, to the date of the compulsory attendance of witnesses.

Prior to that time there would hardly have been much need for

the struggle on admissibility of an attorney’s testimony.

In England the struggle for the privilege did not end until

the latter part of the 19th Century; in the United States there

seems never to have been much doubt about it. This appears

to have been because in our country the barrister and solicitor

are one individual — there was therefore no ‘‘brief’’ presented

to the barrister by the client and/or the solicitor — and there

was therefore not nearly as much of the ‘“‘inside story’’ to

discover by way of interrogatories or cross examination.

It would be literally true that an opponent in possession of

the ‘‘brief’’ would know your case, strengths and weaknesses,

willy-nilly. There was thus a real disinclination to consult

counsel as long as the facts could be discovered.

Although an attorney is an officer of the court, and hence

bound not to deceive the court or counsel, nor to participate in

criminal actions, historically an attorney’s primary duty has

been to his client. This has held true from the beginning,

when lawyers were clerics and the law was administered and

conducted by churchmen. As such the attorney has always

been bound zealously to represent that client — some of them

losing their heads for it.

Because it is the glory of our profession that a client’s con-

fidences are our secrets, we are bound, as lawyers, to protect

them as vigorously as we can.

For this reason the Writ of Certiorari should here be granted

so that the profession will know clearly, without ambiguity or

confusion, what the rules are. In this sense it can be said that

almost nothing is more important to the legal profession.

15

Point #2 relates to the admmistration of justice.

Justice is the even-handed administration of the law. The

law in this case, as the lower court’s opinion says, is that if a

‘*strong possibility’’ exists that disclosure of the identity will

implicate the client in the very matter for which legal advice

was sought, disclosure is protected by the privilege.

The Court of Appeals maintained that it was ‘‘incumbent

upon’ Durant to make this showing by an in camera ex parte

hearing.

But this completely ignores the finding by the same court

(p 3a, infra) that disclosure of the identity meant arrest of the

client for this very matter. It ignores the threats by the FBI to the

attorney so that he would breach the client’s confidence (p 4a,

infra).

Moreover, it is a truism that a client seeking advice on

criminal matters rarely, if ever, tells the truth, the whole truth

and nothing but the truth to his attorney the first time around.

‘

Far from ‘‘significantly diminish[{ing] the credibility of

Durant’s subsequent March 22 representation’’ (p 15a, infra),

the fact that on March 2 Durant knew nothing about the theft

of IBM checks, while later on he was able to say that disclosure

would implicate the client in the very matter for which advice

was sought, serves to emphasize the credibility because it in-

dicates, among other things, that three weeks had brought

previously unfocused facts into focus.

Thus justice has not been done here; the law has not been

administered even-handedly; while admitting that the

‘*strong possibility’? — a certainty, in fact — had been

established, in the same breath the court below denied that the

burden had been met.

In sum, resolution of the question here presented will aid

the legal profession and will assist the administration of justice

in our courts.

16

CONCLUSION

For the above stated reasons, this petition for a Writ of Cer-

tiorari should be granted.

|

espectfully submitte

\\

RICHARD DURANT

Durant & Durant, P.C.

2300 Penobscot Building

Detroit, Michigan 48226

(313) 961-6800

Petitioner, In Pro Per

APPENDICES

la

APPENDIX A

No. 83-1290

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re Grand Jury Investigation No. 83-2-35,

ON APPEAL from the United States District Court

for the Eastern District of Michigan.

Decided and Filed December 7, 1983

Before: ENcet and Krupansky, Circuit Judges, and

CELeBREzzE, Senior Circuit Judge.

Krupansky, Circuit Judge. Attorney Richard Durant

(Durant) appeals a finding of contempt for failure to disclose

to the grand jury upon order of court the identity of his client.

On March 1, 1983, Special Agent Edwards (Edwards), of the

Federal Bureau of Investigation (FBI), visited Durant’s office

and explained that the FBI was investigating the theft of

numerous checks made payable to International Business

Machines, Inc. (IBM). He advised that a number of the stolen

checks had been traced and deposited into various banking ac-

counts under names of non-existent organizations, at least one

of which included the initials ‘‘IBM’’. Edwards produced a

photostatic copy of a check drawn upon one of these ficticious

accounts which cehck was made payable to Durant’s law firm.

Upon FBI inquiry, Durant conceded that this check for

$15,000 had been received and endorsed by his firm for ser-

vices rendered to a client in two cases, one of which was

2a

**finished’’ and the other of which was ‘‘open’’. Durant refused

to disclose the identity of his client to whose credit the proceeds

had been applied, asserting the attorney-client privilege.

Durant was subpoenaed to appear before the grand jury the

following day, March 2, 1983, where he again refused to iden-

tify his client, asserting the attorney-client privilege. The

government immediately moved the United States District

Court for the Eastern District of Michigan for an Order re-

quiring Durant to provide the requested information. At a

hearing that same afternoon, Durant informed the court that

disclosure of his client’s identity could incriminate that client

in criminal activity so as to justify invoking the attorney-client

privilege. Citing to the court: Jn re Grand Jury Appearance

(Michaelson), 511 F.2d 882 (9th Circ.), cert. denied, 421 U.S.

978, 95 S.Ct. 1979, 4+ L.Ed.2d 469 (1975); Batrd v. Koerner,

279 F.2d 623 (9th Cir. 1960). Durant additionally stated that

‘“*I do not know any of the facts about this theft or anything

else’’, and suggested that the requested information should be

obtained through other methods.' The court adjudged that the

privilege did not attach and ordered Durant to identify his

client. Upon refusal to comply with this Order, Durant was

held in contempt. Further proceedings (e.g. bond) were stayed

until March 16, 1983, and subsequently stayed until March 22,

1983.

' Durant stated:

I should add that if the facts as the agents have discussed them with me

are correct and there is a substantial number of checks flowing around

the city, all those checks come back to the drawee bank with bank en-

dorsements on the back. It should be, it seems to me, equally possible,

without violating the attorney-client privilege, for the agents to find

out who presented, who cashed and to trace the money through normal

commercial channels, to say nothing of the fact that who opens the mail

at IBM now obviously becomes of significant importance.

3a

In an obvious attempt to ascertain the identity of Durant’s

client in an alternate manner, the United States issued a se-

cond subpoena to Durant on March 9, 1983, ordering him to

appear before the grand jury on March 16, 1983, and produce

the following documents:

A listing of all clients of the law firm of Durant & Durant,

P.C. and Richard Durant as of February 18, 1983 in-

cluding all clients with active cases and clients who owe fees

or have provided a retainer to the firm and all client ledger

cards and other books, records and documents reflecting or

recording payments to the law firm for the period Febru-

ary 1, 1983 to March 1, 1983.

Durant moved to quash this subpoena duces tecum, again

asserting the attorney-client privilege. At the March 22, 1983

hearing on this motion, Durant re-asserted that production of

the subpoenaed documents could implicate his client in crim-

inal activity. He additionally observed that the FBI had ad-

mitted before Durant and the district court judge in-chambers

that an arrest would be effected by the FBI immediately fol-

lowing disclosure.? In effect, the identity of Durant’s client

was the last link of evidence necessary to effect an indictment.

The Court was advised for the first time by Durant that on

2? Durant stated:

I would remind the Court that when, through the courtesy of the

Court, We had a session in-chambers with the members of the FBI

present, as well as the U.S. Attorney and myself, the FBI members

specifically said — I can’t remember which one — specifically said that

as soon as we get the name of that client, we are going to arrest the

client * * *

The substance of this statement was never challenged either directly or

indirectly by either the district court or the United States.

4a

March 2, 1983 the FBI requested, under threat of harass-

ment, that Durant ‘“‘breach’’ the attorney-client privilege and

identify his client without informing the client.’

The Court was informed that disclosure of the requested in-

formation would not only implicate Durant’s client in criminal

activity, but it would implicate that client in the very criminal

activity for which legal advice had been sought.

COURT: Lo you contend and do you submit that the dis-

closure of the information which is sought by this subpoena,

quote, would implicate your client in the very criminal ac-

tivity for which legal advice was sought?

MR. DURANT: Yes, Your Honor, I do.

COURT: Other than—in what way do you contend that it

would?

MR. DURANT: Sir, I’m in a catch-22 position again. I

can’t tell you. If I tell you, I have explained things that my

client obviously doesn’t wish to be disclosed.

COURT: All right.

3 Durant stated:

Furthermore — and! put this on the record after consultation with my

son, who told me I should have expressed it on March 2nd. During the

time the Court recessed, preparatory to rendering an opinion, this

gentlemen — the FBI agent whose name escapes me for the moment —

and I, the U.S. Attorney were outside, and I was given the proposition

that I should tell the FBI the identity of my client, but not tell my client

that I had done so, so that the FBI presumably could move in.

When I rejected what was propositioned to me that I should give

the identity but delay telling my client that I had done so, so presum-

ably the same result could occur — when I rejected that, I hope in jest,

it was pointed out that I could be printed and held incommunicado for

six or seven hours while the circuit was written [ridden{sic]} with me,

and I implied it was a good tning that I had instructed my office that if

they hadn’t heard from me by 3:30, to come over here with a writ of

habeas corpus. I made a phone call.

5a

Durant failed to move the court for an ex parte in camera submis-

sion of evidence or testimony to establish that his client had in-

deed sought legal advice relating to past criminal activity in-

volving theft of IBM checks. Nor did the district court, sua

Sponte, suggest an ex parte in camera submission of evidence to

probe Durant’s blanket statements.

The United States then introduced the check into evidence in

support of the proposition that it was improbable that Dutant’s

client had engaged Durant’s services to defend against impend-

ing charges of theft. A notation on the lower left hand corner

of the check stated ‘‘corporate lega] services’. The United

States observed ‘‘That doesn’t say anything about crimes

committed or to be committed or legal services in connection

with criminal matters. It is “corporate legal services’; no sug-

gestion of any criminal investigation.’’ It was additionally

noted by the government that the FBI had not initiated the in-

vestigation nor had it been informed of the theft of the IBM

checks until March Ist, approximately two weeks after the

check had been received by Durant. Durant offered the fol-

lowing rebuttal:

I don’t know when IBM knew it (i.e. knew that checks had

been stolen), but Mr. Edwards, when he appeared at my of-

fice, told me that it did involve checks from IBM, and I said

that on March 2nd, when I appeared here.

I think the mere fact that the check says for ‘‘corporate

legal services’ when it has been admitted by the U.S. At-

torney that such a corporation doesn’t even exist, it is a fic-

tional entity, doesn’t deny what I am representing to the

Court.

The district court, opining that the issues joined in the first

and second subpoenaes served upon Durant were ‘‘essentially

the same’’, withheld a decision of Durant’s motion to quash

the second subpoena duces tecum pending appellate resolu-

tion of the court’s contempt Order of March 2, 1983.

6a

Confronting the applicability of the attorney-client privilege

as urged by Durant, it is initally observed that the privilege is

recognized in the federal forum. See: Fisher v. United States, 425

U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1975); Rule 501,

Federal Rules of Evidence. The burden of establishing the ex-

istence of the privilege rests with the person asserting it. See: /n

re Walsh, 623 F.2d 489, 493 (7th Cir.) cert. denied, 449 U.S.

994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); Liew v. Breen, 640

F.2d 1046, 1049 (9th Cir. 1981); United States v. Stern, 511 F.2d

1364, 1367 (2nd Cir. 1975); United States v. Landof, 591 F.2d

36, 38 (9th Cir. 1979); In re Grand Jury Empanelled February 14,

1978 (Markowitz), 603 F.2d 469, 474 (3d Cir. 1979); United

States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974); United States

v. Tratner, 511 F.2d 248, 251 (7th Cir. 1975); United States v.

Demauro, 581 F.2d 50, 55 (2d Cir. 1978); United States v. Ponder,

475 F.2d 37, 39 (5th Cir. 1973); United States v. Bartlett, 449

F.2d 700, 703 (8th Cir. 1971), cert. denied, 405 U.S. 932, 92S.

Ct. 990, 30 L.Ed.2d 808 (1972). The attorney-client privilege

exists

to protect confidential communications between a lawyer

and his client in matters that relate to the legal interests of

society and the client.

In re Grand Jury Proceedings (Fine), 641 F.2d 199, 203 (5th Cir.

1981). Accord: In re Grand Jury Subpoena (Slaughter), 694 F.2d

1258, 1260 (1ith Cir. 1982); United State v. Hodge and Zweig,

548 F.2d 1347, 1353 (9th Cir. 1977); In re Grand Jury Investiga-

tion (Tinari), 631 F.2d 17, 19 (3d Cir. 1980), cert. denied, 449

U.S. 1083, 101 S.Ct. 869-70, 66 L.Ed.2d 808 (1981). The

policy behind protecting confidential communications is self-

evident:

lin order to promote freedom of consultation of legal ad-

visors by clients, the apprehension of compelled disclosure

from the legal advisors must be removed; hence the law

must prohibit such disclosure except on the client’s consent.

7a

Hodge & Zweig, supra, 548 F.2d at 1353, citing 8 J. Wigmore,

Evidence, §2291 at 545 (McNaughton Rev. Ed. 1961). Accord

Fisher, supra, 425 U.S. at 403, 96S. Ct. at 1577 (‘The purpose

oi the privilege is to encourage clients to make full disclosure

to their attorneys’’)* See also: United States v. Geldfarb , 328 F.2d

280 (6th Cir.) cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12

L.Ed.2d 746 (1964).

Since the attorney-client privilege may serve as a mechanism

to frustrate the investigative or fact-finding process, it creates

an inherent tension with society’s need for full and complete

disclosure of all relevent evidence during implementation of

the judicial process. See: Jn re Grand Jury Proceedings (Jones), 517

F.2d 666, 671-72, (5th Cir. 1975) (‘‘the purpose of the

privilege — to suppress truth — runs counter to the dom:nant

aims of law’’). In particular, invocation of the privilege before

the grand jury may jeopardize an effective and comprehensive

investigaticn into alleged violations of the law, and thereby

thwart that body’s dual functions of determining ‘‘if there is

probable cause to believe that a crime has been committed and

of protecting citizens against unfounded criminal prosecu-

tions.’’ Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S. Ct.

2646, 2659, 33 L.Ed. 2d 626 (1972).° These competing

* The Court additionally noted

As a practical matter, if the client knows that damaging information

could more readily be obtained from the attorney following disclosure

than from himself in the absence of disclosure, the client would be

reluctant to confide in his lawyer and it would be difficult to obtain ful-

ly refined legal advice.

425 U.S. at 403, 96 S.Ct. at 1577.

> It is fundamental, however, that although the subpoena powers of the

grand jury are extremely broad, it may not use its authority to ‘‘violate a

valid privilege, whether established by the Constitution, statutes, or the

common law.’’ United States v. Calandra , 414 U.S. 338, 346, 94 S.Ct. 613,

619, 38 L.Ed.2d 561 (1974).

8a

societal interests demand that application of the privilege not

exceed that which is necessary to effect the policy considera-

tions underlying the privilege, i.e., ‘‘the privilege must be

upheld only in those circumstances for which it was created.”’

In re Walsh, supra, 623 F.2d at 492. Accurd: Fisher, supra, 425

U.S. at 403, 96 S. Ct. at 1577 (‘it applies only where

necessary to achieve its purpose.’’) As a derogation of the

search for truth, the privilege is to be narrowly construed. See:

United States v. Weger, 709 F.2d 1151, 1154 (7th Cir. 1983);

Baird v. Koerner , 279 F.2d 623, 631-32 (9th Cir. 1960); United

States v. Pipkins, 528 F.2d 559, 562-63 (5th Cir. 1976).

The federal forum is unanimously in accord with the gen-

eral rule that the identity of a client is, with limited exceptions,

not within the protective ambit of the attorney-client

privilege. See: In re Grand Jury Proceedings (Pavlic), 680 F.2d

1026, 1027 (Sth Cir. 1982) (en banc); Jn re Grand Jury Pro-

ceeaings (Jones), 517 F.2d 666, 670-71 (5th Cir. 1975); In re

Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981);

Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965), cert. denied,

382 U.S. 1028, 86 S.Ct. 648, 15 L.Ed.2d 540 (1966); Jn re

Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir. 1982);

In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695

F.2d 363, 365 (9th Cir. 1982); Jn re Grand Jury Proceedings

(Lawson), 600 F.2d 215, 218 (9th Cir. 1979).*®

* This general rule applies equally to fee arrangements:

In the absence of special circumstances, the amount of money paid or

owed to an attorney by his client is generally not within the attorney-

client privilege. Jn re Michaelson, 511 F.2d 882, 888 (9th Cir.) cert.

denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 469 (1975); see In re

Grand Jury Proceedings, 517 F.2d 666, 670-71 (Sth Cir. 1975). The

receipt of fees from a client is not usually within the privilege because

the payment of a fee is not normally a matter of confidence or a com-

municaiwn. United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974).

9a

The Circuits have embraced various ‘‘exceptions’’ to the

general rule that the identity of a client is not within the pro-

tective ambit of the attorney-client privilege. All such excep-

tions appear to be firmly grounded in the Ninth Circuit’s

seminal decision in Baird v. Koerner, 279 F.2d 623 (9th Cir.

1960). In Baird the IRS received a letter from an attorney

stating that an enclosed check in the amount-of $12,706 was

being tendered for additional amounts due from undisclosed

taxpayers. When the IRS summoned the attorney to ascertain

the identity of the delinquent taxpayers the attorney refused

identification asserting the attorney-client privilege. The

Ninth Circuit, applying California law, adjudged that the

‘*exception’’ to the genera! rule as pronounced in Ex parte

McDonough, 170 Cai. 230, 149 P. 566 (1915) controlled:

The name of the client will be considered privileged mat-

ter where the circumstances of the case are such that the

name of the client is material only for the purpose of show-

ing an acknowledgement of guilt on the part of such client of

the very offenses on account of which the attorney was

employed.

Baird , supra, 279 F.2d at 633. The identity of the Baird taxpayer

was adjudged within this exception to the general rule. The

Ninth Circuit has continued to acknowledge this exception:

A significant exception to this principal of non-confiden-

tiality holds that such information may be privileged when

(footnote 6 continued)

This Court has hes that ministerial or clerical services of an attorney

in transferring funds to or from a client is not a matter of confidence

protected by the attorney-client privilege. United States v. Bartone . 400

F.2d 459 (6 Cir. 1968), cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21

L.Ed.2d 571 (1969).

United States v. Haddad, 527 F.2d 537, 538-39 (6th Cir. 1975).

10a

the person invoking the privilege is able to show that a

strong possibility exists that disclosure of the information

would implicate the client in tue very matter for which legal

advice was sought in the first case.

In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695

F.2d 363, 365 (9th Cir. 1982). Accord: United States v. Hodge and

Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977); In re Grand Jury

Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir. 1979) United

States v. Sherman’, 627 F.2d 189, 190-91 (9th Cir. 1980); Jn re

Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir. 1982).

This exception, which can perhaps be most succinctly

characterized as the ‘‘legal advice’’ exception, has also been

recognized by other circuits. See: In re Walsh, 623 F.2d 489,

495 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66

L.Ed.2d 291 (1980); Jn re Grand Jury Investigation (Tinart), 631

F.2d 17, 19 (3d Cir. 1980), cert. denied, 449 U.S. 1083, 101 S.

Ct. 869-70, 66 L.Ed. 2d 808 (1981). Since the legal advice ex-

ception is firmly grounded in the policy of protecting con-

fidential communications, this Court adopts and applies its

principles herein. See: In re Grand Jury Subpoenas Duces Tecum

(Marger/Merenbach), supra.

It should be observed, however, that the legal advice excep-

tion may be defeated through a prima facie showing that the

legal representation was secured in furtherance of present or

intended continuing illegality, as where the legal representa-

tion itself is part of a larger conspiracy. See: Jn re Grand Jury Sub-

poenas Duces Tecum (Marger/Merenbach), supra, 695 F.2d at 365

n.1; Jn re Walsh, 623 F.2d 489, 495 (7th Cir.), cert. dented, 449

U.S. 994 (1980); Jn re Grand Jury Investigation (Tinart), 631 F.2d

17, 19 (3d Cir. 1980), cert. denied, 449 U.S. 1083 (1981); In re

Grand Jury Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir.

1979); United States v. Friedman , 445 F.2d 1076, 1086 (9th Cir.

1971). See also: Clark v. United States, 289 U.S. 1, 15, 53 S.Ct.

lla

469, 77 L.Ed. 993 (1933); In re Grand Jury Proceedings (Pavlick),

680 F.2d 1026, 1028-29 (5th Cir. 1982) (en banc).

Another exception to the general rule that the identity of a

client is not privileged arises where disclosure of the identity

would be tantamount to disclosing an otherwise protected

confidential communication. In Baird, supra, the Ninth Cir-

cuit observed:

If the identification of the client conveys information which

ordinarily would be conceded to be part of the usual privi-

leged communication between attorney and client, then the

privilege should extend to such identification in the absence

of other factors.

Id., 279 F.2d at 632. Citing Baird, the Fourth Circuit pro-

mulgated the following exception:

To the general rule is an exception, firmly bedded as the

rule itself. The privilege may be recognized where so much

of the actual communication has already been disclosed that

identification of the client amounts to disclosure of a con-

fidential communication.

NLRB vy. Harz, 349 F.2d 900, 905 (4th Cir. 1965). Accord:

United States v. Tratner, 511 F.2d 248, 252 (7th Cir. 1975); Col-

ton v. United States, 306 F.2d 633, 637 (2d Cir. 1962), cert.

denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963);

Tillotson v. Boughner, 350 F.2d 663, 666 (7th Cir. 1965); United

States v. Pape, 144 F.2d 778, 783 (2d Cir. 1944). See also: Chirac

v. Reinecker, 24 U.S. (11 Wheet) 280, 6 L.Ed. 474(1826). The

Seventh Circuit has added to the Harvey exception the follow-

ing emphasized caveat:

The privilege may be recognized where so much of the ac-

tual communication has already been disclosed [not

necessarily by the attorney, but by independent sources as well} that

identification of the client for of fees paid] amounts to

disclosure of a confidential communication.

12a

United States v. Jeffers, 535 F.2d 1101, 1115 (7th Cir. 1976)

(emphasis added). The Third Circuit, applying this excep-

tion, has emphasized that it is the link between the client and

the communication, rather than the link between the client and

the possibility of potential criminal prosecution, which serves to

bring the client’s identity within the protective ambit of the

attorney-client privilege. See: In re Grand Jury Empanelled

February 14, 1978 (Markowitz), 603 F.2d 469, 473 n.4 (3d Cir.

1979). Like the ‘‘iegal advice’’ exception, this exception is

also firmly rooted in principles of confidentiality.

Another exception, articulated in the Fifth Circuit’s en banc

decision of Jn re Grand Jury Proceedings (Pavlick), 680 F.2d 1026

(5th Cir. 1982) (en banc),’ is recognized when disclosure of the

identity of the client would provide the ‘“‘last link’’ of

evidence:

We have long recognized the general rule that matters in-

volving the payment of fees and the identity of clients are

not generally privileged. Jn re Grand Jury Proceedings, (United

States v. Jones), 517 F.2d 666 (5th Cir. 1975); see cases col-

lected id. at 670 n.2. There we also recognized, however, a

limited and narrow exception to the general rule, one that

obtains when the disclosure of the client’s identity by his at-

torney would have supplied the lask link in an existing

chain of incriminating evidence likely to lead to the client’s

indictment.

’ It appears that Pavlick sub silentio overruled In re Grand Jury Proceedings

(Fine), 641 F.2d 199 (Sth Cir. 1981), wherein a panel of the Fifth Circuit

applied the ‘‘legal advice’’ exception rather than a ‘‘last link’’ exception.

13a

Id. at 1027.* Upon careful consideration this Court concludes

that, although language exists in Baird to support viability of

Pavlick’s ‘‘last link’’ exception,’ the exception is simply not

grounded upon the preservation of confidential communications

and hence not justifiable to support the attorney-client

privilege. Although the last link exception may promote con-

cepts of fundamental fairness against self-incrimination, these

concepts are not proper considerations to invoke the attorney-

client privilege. Rather, the focus of the inquiry is whether

diclosure of the identity would adversely implicate the con-

fidentiality of communications. Accordingly, this Court re-

jects the last link exception as articulated in Pavlick.

Turning to the facts at bar, it is observed that Durant

asserted three justifications for invocation of the attorney-

client privilege. First, at the March 2 hearing, he stated that

disclosure might possibly implicate the client in criminal ac-

tivity. As this justification has no roots in concepts of con-

fidentiality or communication, it cannot be advanced to sup-

port an abdication of the general rule that identity of a client is

* The Eleventh Circuit has adopted the “‘last link’’ exception as pro-

nounced in Pavlick. See: In re Grand Jury Proceedings (Twist), 689 F.2d 1351.

1352-3 (11th Cir. 1982); Jn re Grand Jury Subpoena (Slaughter), 694 F.2d

1258, 1260 (11th Cir. 1982). See also: In re Grand Jury Proceedings (Jones),

517 F.2d 666 (5th Cir. 1975), adopted by the Eleventh Circuit as prece-

dent in Bonner v. City of Prichard. 666 F.2d 1206 (11th Cir. 1981). Com-

pare, however, /n re Grand Jury Proceedings, (Freeman), 708 F.2d 1571,

1573-74 (11th Cir. 1983), affirming a contempt order issued by a district

court which applied the ‘‘legal advice’’ rather than ‘‘last link’’ exception.

* Although Baird observed in passing that disclosure of the identity of the

clients ‘‘may well be the link that could form the chain of testimony

necessary to convict [the taxpayers] of a federal crime’’, 279 F .2d at 633,

the Court repeatedly emphasized that the retention of the attorney and

remission of a check to the IRS was tantamount to a communication or ad-

mission from the clients to the attorney that ‘‘they hac not paid a suffi-

cient amount in income taxes some one or more years in the past’’. Jd.

l4a

not privileged. Second, at the March 22 hearing, Durant in-

formed the Court that the FBI had informed i.im that an ar-

rest would be effected upon disclosure of the identity of °

Durant’s client. This is simply an assertion that disclosure

would provide the last link of evidence to support an indictment

as articulated in Pavlick — a precedent which is here rejected.

third, at the March 22 hearing, Durant submitted that

disclosure was justified under the ‘‘legal advice’’ exception

embraced by the Ninth Circuit. Seeking to invoke this excep-

tion, it was incumbent upon Durant to ‘‘show that a strong

posstbility exist{ed] that disclosure of the information would

implicate the client in the very matter for which legal advice

{had been] sought in the first case’’. Jn re Grand Jury Subpoenas

Duces Tecum (Marger/Merenbach), supra, 695 F.2d at 365 (em-

phasis added). A well recognized means for an attorney to

demonstrate the existence of an exception to the general rule,

while simultaneously preserving confidentiality of the identity

of his client, is to move the court for an in camera ex parte hear-

ing. See: In re Grand Jury Witness (Salas), supra, 695 F.2d at 362;

(proper procedure to establish existence of ‘‘legal advice’’ ex-

ception was to make an in camera showing); Jn re Grand_Jury Em-

panelled February 14, 1978 (Markowitz), supra, 603 F.2d at 474

(referring to procedure to be employed by an attorney who

asserts Fifth Amendment privilege); Jn re Grand Jury Subpoena

(Slaughter), supra, 694 F.2d at 1260 n.2 (United States re-

quested in its subpoena that any averred privileged matters be

deleted and the original copy retained intact for possible in

camera inspection by the district court); Jn re Walsh, supra, 623

F.2d at 494 n. 5; United States v. Tratner, supra, 511 F.2d at 252.

Since the burden of establishing the existence of the

privilege rests with the party asserting the privilege, it is in-

cumbent upon the attorney to move for an in camera ex parte

hearing if one is desired. In the action sub judice, Durant failed

to so move. Rather, he rested on his blankefbassertion that his

15a

client had initially sought legal advice relating to matters in-

volving the theft of IBM checks. Such unsupported assertions

of privilege are strongly disfavored. See: United States v. Cromer,

483 F.2d 99, 102 (9th Cir. 1973); United States v. Davis, 636

F.2d 1028, 1044 n.20 (5th Cir. 1981); Jn re Grand Jury Witness

(Salas), supra, 695 F.2d at 362. Further, it is pertinent to

observe that at the first hearing on March 2 Durant had ex-

pressly disavowed knowledge of the existence of stolen IBM

checks. This statement significantly diminishes the credibility

of Durant’s subsequent March 22 representation that his

client had indeed engaged Durant’s services for past activity

relating to stolen FBI checks. Accordingly, Durant clearly

failed to satisfy his burden of demonstrating a ‘‘strong

possibility’ that disclosure of the identity of his client would

implicate that client in the very manner for which legal advice

had been initially sought.

Last, it is observed that Durant did not represent to the

district court that disclosure of the identity of his client would

amount to a disclosure of a confidential communication. See:

NLRB vy. Harvey, supra; United States v. Jeffers, supra. Not hav-

ing advanced this exception to the general rule, it follows ax-

iomatically that Durant failed to satisfy the burden of

establishing its existence. Nor does the record suggest the

viability of this exception so as to justify a remand.

In sum, Durant has failed to establish the existence of any

exception to the general rule that disclosure of the identity of a

client is not within the protective ambit of the attorney-client

privilege. Therefore the contempt Order of the district court

issued against Durant is hereby AFFIRMED.

l6a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: Grand Jury Investigation MISC. NO. 83-167

Number 83-2-35

ORDER

At a session of said court, held in the United

States District Court, Detroit, Michigan on

March 2, 1983.

PRESENT: HONORABLE JULIAN A. COOK, JR.

United States District Judge

The government having petitioned the court to compell a

grand jury witness, Richard Durant, to provide information

to a grand jury concerning the identity of a client and,

The court having heard the arguments of counsel for the

government and Richard Durant makes the following findings:

1. That Richard Durant was subpoenaed to testify before

a grand jury and provide information concerning the iden-

tity of a client of the law firm of Durant and Durant, P.C.

2. That Richard Durant refused to provide said infor-

mation to the grand jury asserting that the identity of the

client is protected by the attorney-client privilege.

3. That the information concerning the identity of the

client of Richard Durant is not protected by the attorney-

client privilege.

17a

ACCORDINGLY, IT IS HEREBY ORDERED that

Richard Durant disclose the identity of the client as called for

by the grand jury subpoena.

/s/_ JuLtIAN ABELE Cook, JR.

HONORABLE

JULIAN A. COOK, JR.

United States District Judge

DATED: March 11, 1983

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APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: Grand Jury Investigation MISC. NO. 83-167

Number 83-2-35

ORDER

At a session of said court, held in the United

States District Court, Detroit, Michigan on

March 2, 1983.

PRESENT: HONORABLE JULIAN A. COOK, jR.

United States District Judge

The court having ordered and directed Richard Durant to

disclose the identity of a client and,

Richard Durant having stated to the court that he will not

comply with the court’s order and will not disclose the client’s

identity;

IT IS HEREBY ORDERED that Richard Durant is ad-

judged in contempt of this court for his failure to comply to the

court’s order;

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IT IS FURTHER ORDERED that upon Richard Durant’s

representation that he intends to pursue an appeal in the mat-

ter, further proceedings are stayed until March 16, 1983 at

2:00 P.M. at which time the parties are directed to return to

this court.

/s/ JuLIAN ABELE Cook, JR.

HONORABLE

JULIAN A. COOK, JR.

United States District Judge

DATED: March 11, 1983

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APPENDIX D

No. 83-3243

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In Re: GranD JuRY PROCEEDINGS —

LARRY GORDON,

Joun Doe,

Intervenor-A ppellant,

Vv.

UNITED STATES OF AMERICA,

Respondent-A ppellee.

On Appeal from the United States District Court

for the Northern District of Ohio.

Decided and Filed December 5, 1983

Before: Epwarps, and Krupansky, Circuit Judges; and

Reep, District Judge*.

* Hon. Scott Reed, United States District Judge for the Eastern District

of Kentucky, sitting by designation.

2la

Krupansky, Circuit Judge. The intervenor-appellant,

John Doe (Doe), appeals from an order of the District Court

for the Northern District of Ohio which requires Larry S.

Gordon (Gordon) to answer certain questions posed by a

federal grand jury.

The factual background to this controversy is straight-for-

ward. For several years a grand jury sitting in the Northern

District of Ohio has been conducting an investigation into

possible violations of the Internal Revenue Code by Reuben

Sturman (Sturman) and several alleged corporate facades

under his control.

Despite continuous efforts, the grand jury has been frus-

trated in its attempts to secure documented information con-

cerning the stock ownership and/or control of the corporations

which are the subject of the grand jury investigation. On May 2,

1980, the grand jury issued a subpoena ad testificandum to

Larry S. Gordon (Gordon), an attorney with the law firm of

Berkman, Gordon, Kancelbaum & Levy. Gordon appeared

on the scheduled date and testified. He identified 12 corpora-

tions incorporated by his law firm and also four others as

clients of the firm. Gordon further testified that, at some

period of time, the corporate record books and stock ledgers

for these corporations were kept at his firm’s offices. Finally,

Gordon acknowledged that Sturman was a client of the firm

who was represented by Gordon.

However, when confronted by certain inquiries designed to

elicit information concerning the alleged de jure corporate

status of the corporations here in issue, Gordon refused to

answer, invoking the attorney-client privilege. Accordingly,

on January 22, 1982, the government petitioned the district

court to compel Gordon to:

1. identify the person or persons who requested each

incorporation;

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2. identify the person or persons who provided the law

firm with information concerning the identity of the officers

and shareholders of each corporation; and

3. identify the agent or representative the firm dealt with

when legal matters arose concerning each of the named

corporations;

4. identify the person or persons who requested and/or

received custody of the records of each corporation from the

law firm in January, 1978.

The government submitted an affidavit under seal in support

of its motion.

Thereafter, Gordon requested that he be permitted to ex-

amine his grand jury testimony and the affidavit in support of

the aforementioned motion that had been submitted by the

government under seal. A motion to intervene was also filed

by a ‘‘John Doe’’ asserting that he was the individual the

government was attempting to identify through Gordon’s

interrogation.

On January 18, 1983 the lower court granted Gordon’s re-

quest to examine his grand jury testimony but denied him ac-

cess to the affidavit filed by the government in support of its

motion to compel answers to the grand jury. The court deferred

ruling on Doe’s motion to intervene to enable Doe to demon-

strate to the court that he was in fact Gordon’s client and the

target of the inquiries. On March 15, 1983, after reviewing, in

camera, an affidavit from Doe, the lower court permitted him to

intervene ‘‘on the basis of John Doe’s claim of attorney-client

privilege.’’ Doe has also asserted a right to intervene based on

the Fifth Amendment, but the lower court found the reliance

‘*misplaced.’”’

On March 29, 1983, the lower court granted the govern-

ment’s motion to compel Gordon to answer the four identity

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questions directed to him concluding that the answers would

not constitute an invasion ot the attorney-client privilege.

The intervenor appealed from this order, execution of which

has been stayed by the lower court.

Initially, this Court is confronted with a jurisdictional issue. '

Generally, an order compelling testimony or denying a mo-

tion to quash a grand jury subpoena is not appealable. United

States v. Ryan, 402 U.S. 530 (1971); Cobbledick v. United States ,

309 U.S. 323 (1940). A party seeking to contest the validity of

the trial court’s order must refuse compliance, thereby in-

viting a contempt citation which, when imposed, becomes an

appealable order.

The Supreme Court has recognized an exception to this rule

when the party seeking review has a more direct interest in

preventing disclosure of the information sought by the grand

jury than the individual to whom the subpoena was directed.

Perlman v. United States, 247 U.S. 7 (1918). The rationale for

the exception recognizes that the subpoenaed party, to avoid a

contempt citation, may voluntarily comply with the subpoena

thereby depriving the real party in interest of a protected right

and appellate review.

Presently there is a conflict within the Circuits as to the ap-

plication of the Perlman exception, where, as here, a client

seeks immediate review of an order compelling testimony or

documents from his attorney. The majority view recognizes

the exception and permits immediate appellate review. See

United States v. Jones , 696 F.2d 1069 (4th Cir. 1981); Jn re Grand

Jury Subpoena Duces Tecum (Marger/Merenbach), 695 F.2d 363

(9th Cir. 1982); Jn re Grand Jury Proceedings (Damore), 689 F.2d

1351 (1ith Cir. 1982); Jn re Grand Jury Proceedings (Fine), 641

' Although the government does not contest this Court’s jurisdiction, the

Court has the obligation to consider the issue, sua sponte. See e.g. , Columbus

Coated Fabrics v. Industrial Commission of Ohio , 498 F.2d 408 (6th Cir. 1974).

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F.2d 199 (5th Cir. 1981); Jn re Grand Jury Proceedings (Malone),

655 F.2d 882 (8th Cir. 1981); Jn re Katz , 623 F.2d 122 (2d Cir.

1980), In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798

(3d Cir. 1979); Velstcol Chemical Corp. v. Parsons , 561 F.2d 671

(7th Cir. 1977), cert. denied, 435 U.S 942 (1978). The D. C.

and First Circuits have decided that the order is not im-

mediately appealable. Jn re Sealed Case, 655 F.2d 1298 (D.C.

Cir. 1981); In re Oberkoetter, 612 F.2d 15 (1st Cir. 1980).

In concluding that the order is not immediately appealable,

the First Circuit stated that a ‘‘stout-hearted’’ attorney may

risk a contempt citation in his client’s interest. This premise is

tenuous. As noted by the Fifth Circuit:

We suspect that the willingness of a lawyer to protect a

client’s privilege in the face of a contempt citation will vary

greatly, and have a direct relationship to the value of the

client’s business and the power of the client in relation to the

attorney. We are reluctant to pin the appealability of a

district court order upon such precarious considerations.

Although we cannot say that attorneys in general are

more or less likely to submit to a contempt citation rather

than violate a client’s confidence, we can say without reser-

vation that some significant number of client-intervenors

might find themselves denied all meaningful appeal by

attorneys unwilling to make such a sacrifice. That serious

consequence is enough to justify a holding that a client-

intervenor may appeal an order compelling testimony from

the client’s attorney.

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In re Grand Jury Proceedings (Fine), supra, at 202-03 (footnote

omitted).?

? The American Bar Association's former Disciplinary Rules permitted

a lawyer to disclose a client’s confidences when ‘‘required by law or court

order.’’ DR 4-101 (e)(2). See generally In re Grand Jury Proceedings (Fine),

supra at 202-03. The recently adopted Model Rules of Professional Con-

duct do not expressly address the attorney’s responsibility to maintain

confidentiality in the face of a court order. Rule 1.6 provides as follows:

(a) A lawyer shall not reveal information relating to representation

of a client unless the client consents after consultation, except for dis-

closures that are impliedly authorized in order to carry out the repre-

sentation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer

reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the

lawyer believes is likely to result in imminent death or substantial

bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in acon-

troversy between the lawyer and the client, to establish a defense to a

criminal charge or civil claim against the lawyer based upon conduct

in which the client was involved, or to respond to allegations in any

proceeding concerning the lawyer’s representation of the client.

On its face, the Rule does not afford the attorney the option of disclos-

ing information when compelled by court order. However, the Comment

accompanying Rule 1.6 states, in pertinent part:

The attorney-client privilege is differently defined in various juris-

dictions. If a lawyer is called as a witness to give testimony concerning

a client, absent waiver by the client, Rule 1.6(a) requires the lawyer to

invoke the privilege when it is applicable. The lawyer must comply with

the final orders of a court or other tribunal of competent jurisdiction re-

quiring the lawyer to give information about the client.

(emphasis added). The Comment appears to indicate that an attorney

cannot place himself in contempt but must disclose confidences when so

ordered by a court.

In any event, this Court does not believe that appealability should

hinge on an attorney's interpretation of the Disciplinary Rules, the

Model Rules of Professional Conduct (whichever is applicable) or the

attorney's ‘‘stout-heartedness.”’

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This Court adopts the above-quoted logic and joins the

majority of other Circuits in applying the Perlman exception in

those cases wherein a client seeks immediate appeal of an

order compelling testimony from his attorney. Accordingly,

the Court’s appellate jurisdiction is properly invoked in the

matter at bar.’

Addressing the merits of the instant case, it is evident that

the four interrogatories directed to Gordon merely seek the

identity of his client. The Circuit has acknowledged the

‘unanimously embraced ... general rule that the identity of

a client is .. . not within the protective ambit of the attorney-

client privilege.’’ /n re Grand_Jury Investigation No. 83-2-35, No.

83-1290, slip op. at (6th Cir. , 1983).

This Court, in Jn re Grand Jury Investigation No. 83-2-35,

supra, has also recognized two exceptions to the general rule.

The first exception, characterized as the ‘“‘legal advice’’

exception, was defined by the Ninth Circuit in /n re Grand Jury

Subpoena Duces Tecum (Marger/Merenbach), supra at 365:

A significant exception to this principle of non-confidential-

ity holds that [the identity] may be privileged when the per-

son invoking the privilege is able to show that a strong possi-

bility exists that disclosure of [his identity] would implicate

> In In re Buckley, 395 F.2d 385 (6th Cir. 1968), an attorney refused to

answer three questions directed to him before a grand jury, invoking the

attorney-client privilege. The district court instructed the attorney to

respond. The corporation for which the attorney was house cousel at-

tempted to appeal from the lower court's order. This Court concluded

that, inasmuch as the witness had not been cited for contempt, the order

was not appealable.

The Court in Buckley did not consider the possible applicability of the

Perlman exception. Moreover, in Jn re Grand Jury Subpoena Dated Nov. 8,

1979, 622 F.2d 933, 935, n.2 (6th Cir. 1980), this Court indicated that

the exception does apply in a attorney-client relationship. This panel

therefore does not consider Buckley dispositive on the issuc.

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the client in the very matter for which legal advice was sought

in the first case.

In the case at bar, the district court concluded that the “‘legal

advice’’ exception was inapplicable to this case. This Court

concurs. The record, including the tn camera affidavit of Doe,

discloses that Doe sought legal assistance to incorporate

several companies. There is no criminal implication arising

from Doe having directed an attorney to incorporate a num-

ber of business enterprises. Accordingly, the legal advice

exception is unavailing to Doe.

The second exception recognized in Jn re Grand Jury Investi-

gation No. 83-2-35, is applicable ‘‘where disclosure of the

identity would be tantamount to revealing an otherwise confi-

dential communication.’’ Jn re Grand Jury Investigation No.

83-2-35, supra at . As pronounced by the Fourth Circuit:

The privilege may be recognized where so much of the actual

communication has already been disclosed that identifi-

cation of the client amounts to disclosure of a confidential

communication.

NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir, 1965).

In considering the applicability of the second exception, the

Court addresses each of the four inquiries directed to Gordon.

Inquiry #1 seeks the identity of the individual who engaged

Gordon to incorporate each company. Gordon’s previous dis-

closures simply reveal that a client employed his firm to

incorporate the companies. Doe, in his in camera affidavit, con-

ceded that he is the client who directed Gordon to incorporate

the companies in issue. Accordingly, the identity of the client,

within the context of the developed facts, merely amounts to a

disclosure of the scope and objective of the legal esnployment

undertaken by Gordon.

The mere ‘‘fact of consultation including the component

facts of ... scope or object of employment”” is not privileged.

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McCormick, Evidence § 90 (2d ed. 1972). See also 2 Weinstein’s

Evidence 4 503(a)(4)[02](1982); Colton v. United States, 306

F.2d 633 (2d Cir, 1962), cert. denied, 371 U.S. 951 (1963) (gen-

eral nature of legal services performed not privileged).* Thus

disclosure of Doe’s identity in response to inquiry #1 would not

be tantamount to disclosure of a confidential communication.

Inquiry #2 seeks to have Gordon disclose the name of the

individual who conveyed to Gordon the identity of the officers

and shareholders of the various corporations, The names of

shareholders and officers ‘‘are clearly a matter of corporate

record [and] are not normally the kind of confidential infor-

mation which is subject to the attorney-client privilege.’’

United States vy. Mackey, supra at 859. Inasmuch as the substance

of the communication was not confidential, revelation of the

identity of the individual who supplied the names of the cor-

porate officers to Gordon cannot amount to disclosure of a

confidential communication. Therefore, question #2 does not

seck privileged information and should be answered.

Inquiry #3 seeks the identity of the representatives of the

corporations with whom the law firm communicated regard-

ing ‘‘legal matters’’ involving the corporations. The inquiry

does not seek, nor has there been any disclosure of, communi-

cations between Gordon and corporate representatives con-

cerning substantive corporate legal issues. Accordingly, the

second exception enunciated in Jn re Grand Jury Investigation

No. 83-2-35, is totally inapplicable to inquiry #3 and Gordon

has no basis for refusing to respond,

* In United States v. Mackey, 405 F.Supp. 854 (E.D. N.Y. 1975), defen-

dants sought dismissal of indictments on the basis that the testimony of

their attorneys before the grand jury violated the attorney-client privi-

lege. The testimony concerned incorporation of certain business entities.

Judge Weinstein held that such facts ‘‘simply relating that certain corpo-

rate documents were drown at the behest of [the client] are not privileged

from disclosure before the grand jury."’ /d. at 859.

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The fourth and final question does not relate to communi-

cations which in any manner concern legal advice or legal

representation. The question merely attempts to determine

the identity of the individual to whom the law firm delivered

the corporate records. Indeed, as the lower court noted, Doe

has not indicated that the fourth question refers to him.

Accordingly, there is no basis for applying the attorney-client

privilege to inquiry #4.

In sum, the Court concludes that response to the four in-

quiries posed by the grand jury will not infringe on the

attorney-client privilege and the district court’s order coin-

pelling Gordon to respond to these inquiries was proper.

Appellant next asserts that his attorney should have been

permitted to assert the Fifth Amendment privilege against

self-incrimination on behalf of his client. However, existing

legal precedent in this Circuit holds that the Fifth Amendment

privilege is a personal privilege and ‘‘does not permit an attor-

ney to plead that his client might be incriminated by his

testimony ’’ United States v. Haddad, 527 F.2d 537, 539 (6th

Cir. 1975). Accord: United States v. Goldfarb, 328 ¥ .2d 280 (6th

Cir. 1964).°

5 Doe’s reliance on Fisher v. United States, 425 U.S. 341 (1976), is mis-

placed. In Fisher, the Supreme Court held that when a client's papers are

delivered to an attorney in pursuit of legal advice, those papers are pro-

tected by the attorney-client privilege if the Fifth Amendment would have

protected them in the hands of the client. This holding is based on the

attorney-client privilege, see, Matter of Grand Jury Empanelled February 14,

1978, supra at 475, and this Court has previously found that privilege

inapplicable to the facts of this case. The Supreme Court in Fisher

expressly declined to decide ‘‘whether an attorney may claim the Fifth

Amendment privilege of his client."’ Id. at 402 n. 8. Accordingly, we

adhere to our previous decisions and reject appellant's Fifth Amendment

argument.

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Finally, appellant asserts that he was denied due process by

the district court’s refusal to grant him access to the sealed affi-

davit filed by the government in support of its motion to com-

pel. The government had initially submitted the affidavit to

establish that Gordon’s legal services had been retained in fur-

therance of ongoing criminal activity thereby precluding use

of the attorney-client privilege to shield disclosure of com-

munications. The lower court rejected this argument and the

government has not pressed it on appeal.

The district court reviewed the affidavit in camera and, find-

ing that it consisted primarily of evidence generated by the

grand jury, including the testimony of other witnesses, denied

Gordon and Doe access to the affidavit. The Seventh Circuit

addressed this precise issue in /n re Special September 1978 Grand

Jury 640 F.2d 49 (7th Cir. 1980). In that case the government

also submitted material under seal to establish that fraud

vitiated the attorney-client privilege claimed by the recipients

of a grand jury subpoena duces tecum. The trial court reviewed

the documents in camera and, on appeal, the subpoenaed

parties asserted that their rights to due process had been

violated. The Seventh Circuit rejected the contention:

The in camera submissions were themselves generated by the

Grand Jury’s investigation and were necessary to support

its claim that the subpoenaed documents should be made

available.

Those documents contain the words of grand jury wit-

nesses, the disclosure of which could affect the continued

cooperation of those witnesses and chill or distort the future

testimony of others. In these circumstances, the judge’s

decision to view the documents in camera did not constitute a

due process violation or an abuse of his discretion.

Id. at 57-58 (footnote omitted).

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Similarly, in Jn re John Doe Corp, 675 F.2d 482, 490 (1982),

the Second Circuit upheld the use of in camera submissions to

resolve the government’s claims that an attorney-client rela-

tionship was tainted by a criminal purpose:

We recognize that appellants cannot make factual argu-

ments about materials they have not seen and to that degree

they are hampered in presenting their case. The alterna-

tives, however, are sacrificing the secrecy of the grand jury

or leaving the issue unresolved at this critical juncture. We

believe those alternatives Jess desirable than the in camera

submission utilized by Judge Sifton. Appellant, after all, is

itself asserting a right to confidentiality, and the govern-

ment wanted to test the validity of that claim. Appellant’s

argument that the government may not do so without sacri-

ficing its own valid claim to secrecy seems rather ironic in

the circumstances. Leaving the issue unresolved, on the

other hand, would permit wholly untested claims of privi-

lege to obstruct investigations of federal crimes. There is a

public intciest in respecting confidentiality of communica-

tions by clients to their attorneys, in maintaining the

secrecy of grand jury proceedings and in investigating and

prosecuting federal crimes. Where these interests conflict or

the validity of privilege claims based on these interests are

challenged, the limitations on adversary argument caused

by in camera submissions are cleariy outweighed by the

benefits of obtaining a judicial resolution of preliminary

evidentiary issue while preserving confidentiality.

Accord, In Re Grand Jury Proceedings (Fine), 708 F.2d 1571, 1576

(11th Cir. 1983). This Court is persuaded that an in camera

submission on the facts to this case was a reasonable accomo-

dation of the need to maintain secrecy of the grand jury invest-

igation and the need for prompt resolution of the privilege

issue. Hence, this Court finds no abuse of discretion and no

deprivation of appellant’s right to due process.

Accordingly, the lower court’s order compelling Gordon to

respond to the enumerated grand jury inquiries is AFFIRMED.

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