Amicus Curiae Brief — Backiel v. United States
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IN THE f CLER:
Supreme Court of the United States 4
October Term, 1990 .
In Re Grand Jury Subpoena Served Upon
LINDA BACKIEL,
Petitioner,
-versus-
UNITED STATES OF AMERICA,
Respondent.
BRIEF AMICI CURIAE OF THE ASSOCIATION OF LEGAL AID AT-
TORNEYS, THE CARIBBEAN PROJECT FOR JUSTICE AND
PEACE, COMITE DE CIUDADANOS PRO DERECHOS HUMANOS
(CITIZENS’ COMMITTEE FOR HUMAN RIGHTS), COMITE
UNITARIO CONTRA LA REPRESION (UNITARY COMMITTEE
AGAINST REPRESSION), CONCILIO GENERAL DE TRABA-
JADORES (GENERAL COUNCIL OF WORKERS), UNION IN-
DEPENDIENTE DE ABOGADOS DE ASISTENCIA LEGAL (IN-
DEPENDENT UNION OF LEGAL SERVICES ATTORNEYS) (UIAAL),
INSTITUTO PUERTORRIQUENO DE DERECHOS CIVILES (PUER-
TO RICAN INSTITUTE FOR CIVIL RIGHTS), INTERNATIONAL
ASSOCIATION OF DEMOCRATIC LAWYERS, THE NATIONAL
CONFERENCE OF BLACK LAWYERS, THE NATIONAL
LAWYERS GUILD, NATIONAL ORGANIZATION OF LEGAL SER-
VICES WORKERS, THE PUERTO RICAN LEGAL DEFENSE AND
EDUCATION FUND, INC., and UNION INDEPENDIENTE DE
TRABAJADORES DE AEROPUERTO (INDEPENDENT UNION OF
AIRPORT WORKERS) IN SUPPORT OF LINDA BACKIEL’S PETI-
TION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
ARTHUR KINOY
DOROTHY E. ROBERTS
Rutgers School of Law—Newark
1S Washington Street
Newark, New Jersey 07102
(201) 648-5561
MARTHA COPLEMAN
60 Pineapple Street
Brooklyn, NY 11201
(718) 858-4620
Dick Bailey Appellate -Prirters > Tel.: 1-800-564-4918 <4
(212) 608-7666 — (718) +47-5358 — ($16) 222-2470 — (914) 682-0848
Fax Number: (718) 273-8031
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August 30, 1990
TABLE OF CONTENTS
Page
BE TEED seincstsnninnteensnnnienmivininpsinintnacanenansigninasanninaninnns ul
SITE EE MIEN piishcntinandcspnnsartnnnescarssatasnninareennennensnnnnstnssats vii
I pice iteonceceisneptesciguneanniiniannimernshsnnincemmeansicatinnnane vil
PR Oe PIIEN D: citcrtnccessnenevssnsiiniinnhatggpcionsinenecaidonsemnaniies 1
PE niitceninhiiisiaiininiacncnisaiiniencesinittinitisaninniacniininiaatitinsinetitianuriassmeane 2
I. COMPELLING AN ATTORNEY TO TESTIFY
BEFORE A GRAND JURY INTRUDES UPON
THE CONFIDENTIAL ATTORNEY-CLIENT
eI sindesnitinicctnsstqpranntincnnineninecenensienssscsescsssnseseee 2
I. COMPELLING AN ATTORNEY TO
TESTIFY BEFORE A GRAND JURY
BURDENS THE SIXTH AMENDMENT
a a a nrradensctnancdonsntensissnnnccacscorecacoecsccetssces 6
Il. THE GOVERNMENT MUST MAKE A
PRELIMINARY SHOWING OF NEED
BEFORE AN ATTORNEY CAN BE
Ce EY RP MPN Dy pirccnrneceescrsesnnccsescsceccnscsresesests 8
IV. THE INSTANT SUBPOENA VIOLATES
BACKIEL’S FIRST AMENDMENT
IE IT sichahccctctsinsiidstsininivenennsttnnbontinabenteasecstsctanonanssntasnonacesaesins 13
RT iissiiidiaiicaihieshctniseilicataslpiiiniliaadpiasitiiatianinennisnibianisansashidveny 18
TABLE OF AUTHORITIES
CASES: Page
Bates v. Little Rock, 361 U.S. 516 (1960) 17
Branzburg v. Hayes, 408 U.S. 665 (1972) ........csscecssssesseseresseneencnensncnees 17
Brown v. Socialist Workers’ 74 Campaign
CRIN, ; GIP REO r CD ctctertcnstecstoncseseresesencerssnscersnesatosanesenoassstoses 17
Baseline, WRI SG TI. 1 CAGIB) ascecccccccscccsesesesessrncrccescscnscsccvscecscssies 17
Bursey v. United States, 466 F.2d 1059
COUR ae. TEED eipatetttercrtnensesaseninsssctaceconccccstcssnccsesosanensasosoosnssncenssesonscenens 18
DeGregory v. Attorney General of New
Hampshire, 383 U.S. 825 (1966) .17
Escobedo v. Illinois, 378 U.S. 478 (1964) ........cssscssesssssssesrsssessseseseseseeeees 6
Fisher v. United States, 425 U.S. 391
COD visnisstiscniniansecininbnacenn ssscconssesccnnssccessnsscesennsssesennsssscssussssssnsscsssssess 3,4,7
Gibson v. Florida Legislative Comm.,
Be IE: nurietancsitnccttnittsanietingnmnaninatinessnentniipimnsiansinteneiiiensons 17
Gideon v. Wainwright, 372 U.S. 335
(1963) ..... iid sibapdeisiaeiateinaietetinnabeoniees 6
Hickman v. Taylor, 329 U.S. 495 (1947) .......c.ccscccscsccssscsssssesesersseeserereres 3
In re Grand Jury Investigation (Sturgis)
Oe I, I FI soitecpiiercececenannsoneennnnoneninanmneinatintncsmecsen 9
In re Grand Jury Proceedings (Duffy),
Fe BI iiatiecttincnccennecenssnteenincntncnansasasasasonnmmaacoonesees 9
In re Grand Jury Subpoena (Legal
Services Center), 615 F.Supp. 958
Cy I ei castle thiiinbitensrncrescsencescsscanenievonessasuontocenans 9,12,13
In re Grand Jury Subpoena Served Upon
Doe, 759 F.2d 968 (2d Cir.), vacated,
781 F.2d 238 (2d Cir. 1985) (en banc),
CE I re We BOD cicirccsccccnccencnnescesncnsnscsoscssonnonoccnics 9,11
“In re Grand Jury Subpoena to Attorney
(under seal), 679 F.Supp. 1403 (N.D.W.
Va. 1988) 9
In re Grand Jury Witness (Salas), 695
F.2d 359 (9th Cir. 1982)
In re Nackson, 221 N.J. Super. 187 (App.
Div. 1987), aff'd, 114 NJ 527 (1989)
In re Special Grand Jury No. 81-1
(Harvey), 676 F.2d 1005 (4th Cir.
1982), vacated & withdrawn, 697 F.2d
112 (4th Cir. 1982) (en banc)
I sane eesnaeenennsesinnsosomnensninetioi
In re Terkeltoub, 256 F.Supp. 683
In re Walsh, 623 F.2d 409 (7th Cir.),
cert. denied, 449 U.S. 984 (1980)
In re Witness-Attorney Before Grand
Jury No. 83-1, 613 F. Supp. 394 (S.D.
eae lac en atbccanceconsessissdcanesesenetenesccensssasecenasontes
Johnson v. Zerbst, 304 U.S. 458 (1938) ........sccscecccccsessecesscsssssssseesesesecscees
NAACP v. Alabama, 357 U.S. 449 (1958)
NAACP v. Button, 371 U.S. 415 (1963) -cscccssssssscssssssessecesseessensnsse
Powell v. Alabuma, 287 U.S. 45
(1932) ES SELECT
Reporters Com. v. American Telephone
& Telegraph, 593 F.2d 1030 (D.C.Cir.
1978), cert. denied, 440 U.S. 949
cas acnanenssennnesuonsnnsonesannntennoetinanntbins
Schneider v, State, 308 U.S. 147
i enseinannobihinetiimun
Thomas V. Collins, 323 U.S. 516
SEES
Trammel v. United States, 445 U.S.
EL ES SL LE
United States v. Colacurcio, 499
I .______sseussusanmesansienmbcontnniianeneneinan
United States v. Gerena et al, Indictment
No. H85-50 (TEC) (D. Con)
United States v. Melendez-Carrion,
820 F.2d 56 (2d Cir. 1987), reh’g denied,
eae 8 8&8&8&#= = = ——— peta 14
United States v. Nobles, 422 U.S.
ER LETT AEE RT ME 3
United States v. Wells, 766 F.2d 12
(1st Cir. 1985) (Bnedlas mbes 14
United States v. Wolfson, 558
F.2d 59 (2d Cir. 1977) sneanintncentijiatinatinmncnatstemnnassibiiahiseasiiaieinatn 9
Upjohn v. United States, 449 U.S.
383 (1981) pccadatensiicucdtiieesitidhidihdiis 3
Weatherford v. Bursey, 429 U.S.
Ee seieiiacieiiieapinaantii 7
MISCELLANEOUS:
ABA Standards for Criminal Justice (2d ed. 1980) .......cccccssvs aiken 4
Berkan, The Fed’. Grand Jury: An Introduction
to the Institution, Its Historical Role, Its Current
Use and the Problems faced by the Target
Witness, 17 Inter-American U.L. Rev. 102 (1983) ..............csssseseseee 16
Boudin, The Federal Grand Jury, 61 Geo. LJ. 1 (1972) see sve. 16
Deutch, The Improper Use of the Federal Grand
Jury: An Instrument for the Internment
of Political Activists, 75 J. Crim. L.
er NI setitarecncctnnsencnscnenesencnsnscenencnnnennenquenenesnnestcne 16
Hearings on HR94 Before the Subcomm. on
Immigration, Citizenship and International
Law, House Committee on the Judiciary,
er ae II BD artnet peteenensececsccnsremncesnsenssssesnsssnssensssnsaten 15
Hearings on HR1407 Before the Subcomm.
on Crim. Justice, House Committee on =
cg ESET 15
McCormick on Evidence 3
Model Code of Professional Responsibility (1982) .............
Model Rules of Professional Conduct (1983) .............000-000
Note, Grand Jury Subpoenas of a Target’s Attorney:
The Need for a Preliminary Showing, 20‘
ee
Note, The Grand Jury Subpoena: Is It the
Prosecutor's "Ultimate Weapon" Against
Defense Attorneys and Their Clients,
13 Pepperdine L. Rev. 791 (1986) ..ccccsc...sssssssssssssssssssen
Pierce & Colamarino, Defense Counsel as
a Witness for the Prosecution: Curbing the
Practice of Issuing Grand Jury Subpoenas to
Counsel for Targets of Investigations,
36 Hastings LJ. 821 (1985) ..eccccssssscssosssssssssssessevessesesseee
Reform of the Grand Jury System:
Hearings on S.3274 Before the Subcomm.
on Constitutional Rights, Senate
Comm. on the Judiciary, 94th
Cong. 2d Sess. 84 (1976) eosssssssssssssessssssssseessnsssesesnsnee
Stern and Hoffman, Privilege{d] Informers:
The Attorney Subpoena Problem and A
Proposal for Reform, 136 U. Pa. L. Rev.
1783 (1988) 3
Suni, Subpoenas to Criminal Defense Lawyers:
A Proposal for Limits, 65 Or. L. Rev. 215
| SES ae
Tarlow, Witness for the Prosecution -- A New
Role for the Defense Lawyer, 1 J. Crim.
Se
Weiner, Federal Grand Jury Subpoenas to
Attorneys: A Proposal for Reform,
Z3 Ama. Caf. L, Rev. 95 (1965) ........ceccococcscssroscsoscsssssesese
Zwerling, Federal Grand Juries v. Attorney
Independence and the Attorney-Client
Privilege, 27 Hastings L.J. 1263
OGRA Se
Consent of Parties
Petitioner and respondent have consented to the filing of this brief.
Interest of Amici
THE ASSOCIATION OF LEGAL AID ATTORNEYS
(ALAA) was founded in 1969 and has 900 members employed as
staff attorneys at the Legal Aid Society of New York City.
THE CARIBBEAN PROJECT FOR JUSTICE AND PEACE
is an organization that works for the construction of peace and the
establishment of a more just social order in the Caribbean. Linda
Backiel’s background as an advocate of human and civil rights in the
United States is well-known. She has worked arduously to
demonstrate the repressive characteristics of the grand jury system.
Ms. Backiel has made an enormous contribution to the
investigations of the grand jury system conducted by the United
States Senate and House of Representatives.
COMITE DE CIUDADANOS PRO DERECHOS
HUMANOS (CITIZEN'S COMMITTEE FOR HUMAN
RIGHTS) is-concerned about the effect that enforcement of the
subpoena against Attorney Linda Backiel would have because it has
witnessed her devotion to human rights of those involved in the
struggle for self-determination for Puerto Rico. Enforcement of a
subpoena requiring her testimony against a client would surely
discourage others from such advocacy and would penalize valuable
work. The CCDH is also concerned because as an organization with
many social-worker members, it identifies with the dilemma of one
whose ethical duties require the maintenance of a client's
confidence, regardless of whether the current law provides legal
support for that position. The CCDH is firmly committed to the
proposition that the law must meet, not violate, moral and ethical
standards.
COMITE UNITARIO CONTRA LA REPRESION
(UNITARY COMMITTEE AGAINST REPRESSION) is
concerned with human rights in general and specifically with the
human rights of those who are persecuted and imprisoned for
political reasons. As part of its work, the Committee has denounced
the use of the grand jury, the federal courts and other agencies for
repressive ends in Puerto Rico.
CONCILIO GENERAL DE TRABAJADORES (GENERAL
COUNCIL OF WORKERS) is a labor organization which affiliates
eight labor unions in Puerto Rico, which in turn represent 25,000
workers. The eight unions are: the Teachers’ Federation, the
National Health Workers’ Union, the Independent Union of Legal
Services Workers, the Communications Authority Workers
Indpendent Union, the Brotherhood of Exempt, Non-Teaching
Employees of the University of Puerto Rico, the Brotherhood of
Labor Department Employees, the General Workers’ Union and
the Puerto Rican Association of University Professors.
INSTITUTO PUERTORRIQUENO DE DERECHOS
CIVILES (PUERTO RICAN INSTITUTE FOR CIVIL RIGHTS)
(IPDC) is an organization dedicated to the defense and expansion
of civil rights and liberties in Puerto Rico. In pursuit of these goals,
the IPDC undertakes litigation in the areas of civil rights and
liberties, as well as carrying out public education and training
projects, as integral parts of its work. The IPDC has provided
counsel to independence advocates who have been the objects of
federal grand jury abuses and government repression.
INTERNATIONAL ASSOCIATION OF DEMOCRATIC
LAWYERS (IADL) is a membership organization, founded in 1946
with and over 90 affiliate associations in every continent. The [ADL
is a Non-Governmental Organization in consultative status with the
United Nations Economic Social and Cultura] Council and with
UNESCO. It has worked closely with other international human
rights organizations in monitoring attacks on the independence of
the judiciary and on the right of lawyers to represent their clients to
the fullest extent guaranteed by the Universal Declaration of
Human Rights, the International Covenant on Civil and Political
Rights and other applicable regional conventions.
THE NATIONAL CONFERENCE OF BLACK LAWYERS is
a non-profit organization of more than 700 lawyers throughout the
United States, Canada and the Virgin Islands and 2500 law students
through the Black American Law Students Association. Among its
primary goals is the insurance of the fair and equitable
administration of justice. The NBCL is engaged in both affirmative
litigation to correct racial injustices and the criminal defense of
individuals who are prosecuted either because of their race or their
political beliefs. With such goals, we are deeply distressed by any
threat to the right to counsel and to the confidential attorney-client
THE NATIONAL LAWYERS GUILD is a national
organization representing 8000 lawyers, legal workers, law students
and jailhouse lawyers in over 200 chapters throughout the United
States. Since its founding in 1937, the Guild has provided legal
support to virtually every struggle in this country for economic,
social and political justice. The Guild is firmly committed and is
working actively to protect and preserve the fundamental privilege
between attorneys and their clients. Furthermore, the Guild’s
Grand Jury Project has worked for many years to prevent grand jury
abuses. The Grand Jury Project has engaged in public and
professional education and assisted in litigation on behalf of victims
of the political abuses of the grand jury. From about 1975 to 1980
Linda Backiel worked as a staff attorney for the Guild’s Grand Jury
Project. In that capacity and afterwards Ms. Backiel testified before
various Congressional committees considering grand jury reform
legislation.
UNION INDEPENDIENTE DE ABOGADOS DE
ASISTENCIA LEGAL (INDEPENDENT UNION OF LEGAL
AID SOCIETY ATTORNEYS) (UIAAL) is a labor organization
which represents all attorneys that work for the Legal Aid Society in
Puerto Rico. The Society is a non-profit organization that provides
legal representation in the courts of the Commonwealth of Puerto
Rico to indigent persons charged with criminal offenses. The
Society is involved in more that 70% of all criminal cases in Puerto
Rico. The Independent Union of Legal Aid Society Attorneys is
concerned about any invasion of the confidential communication
between a client and his/her attorney and the infringement of the
constitutional right to counsel protected by the Puerto Rican and
United States Constitutions.
UNION INDEPENDIENTE DE SERVICIOS LEGALES
(UISL) INDEPENDENT UNION OF LEGAL SERVICES is a
labor union that represents 400 workers of the Legal Services
Corporation in Puerto Rico. UISL includes lawyers, paralegals,
legal assistants, clerical and janitorial workers. UISL brings services
of quality to the indigenous people of Puerto Rico. UISL is against
the use of the Federal Grand Jury to oppress groups and individuals
supporting social change.
THE PUERTO RICAN LEGAL DEFENSE AND
EDUCATION FUND, INC. is a New York not-for-profit
corporation established to protect the legal rights of Puerto Ricans
and other Latinos through legal advocacy, including litigation in
such areas as education, employment, housing, migratory labor, and
the administration of criminal justice. P.R.L.D.E.F. is concerned
with any invasion into the confidential communications between a
client and his/her attorney and infringment of the Sixth
Amendment right to counsel. P.R.L.D.E.F. is especially distressed
by the subpoena served upon Ms. Backiel because it threatens the
ability of controverial clients and causes to obtain effective legal
representation.
UNION INDEPENDIENTE DE TRABAJADORES DE
AEROPUERTO (INDEPENDENT UNION OF AIRPORT
WORKERS) is a labor organization which represents four sectors
of the airport workers at Luis Munoz Marin International Airport.
It opposes the use of the Grand Jury against labor unions, political
organizations and private citizens.
UNION INDEPEDIENTE DE TRABAJORES DE
SERVICIOS LEGALES (UITSL) (INDEPENDENT UNION OF
LEGAL SERVICES WORKERS) is a labor union that represesnts
400 workers of the Legal Services Corporation in Puerto Rico.
UITSL includes lawyers, paralegals, legal assistants, clerical and
janitorial workers. UITSL brings services of quality to indigent
people in Puerto Rico. It is against the use of the Federal Grand
Jury, and especially in those cases where it is used as a repressive
instrument against groups, individuals and lawyers who represent
and support social change.
SUMMARY OF ARGUMENT
Compelling a defense attorney to testify about her client
before a grand jury undermines the very foundation of our adversial
system of justice. It turns the defense attorney into a witness for
the prosecution. It seriously, perhaps fatally, impairs the trust that
forms the basis of an effective attorney-client relationship. It makes
the client fear to disclose all pertinent facts to her lawyer, and
makes the lawyer hesitant to investigate her client’s case thoroughly.
In short, this practice threatens the Sixth Amendment guarantee of
effective assistance of counsel.
The practice of compelling the testimony of defense attorneys
threatens not only the foundation of the American system of
criminal justice and the Sixth Amendment rights of defendants, but
also the First Amendment rights of all involved. The practice lends
itself to abuse. A hostile government can use the grand jury to
harass both client and counsel, chilling the exercise of their freedom
to associate with politically controversial individuals and
Organizations. Therefore, before the prosecution can-compel a
defense attorney to testify against her politically controversial client,
and so burden the First Amendment rights of both, its motives must
be subjected to the strictest judicial scrutiny. The government must
show that the burden on First Amendment rights is necessary and as
narrowly tailored as possible to serve a compelling government
interest.
Since the district court has not required the government to
make any showing at all, the writ of certiorari should be granted.
ARGUMENT
I, COMPELLING AN ATTORNEY TO TESTIFY
BEFORE A GRAND JURY INTRUDES UPON
THE CONFIDENTIAL ATTORNEY-CLIENT
RELATIONSHIP
This case brings before the Court an issue that affects the very
foundation of our system of criminal justice. The attorney-client
relationship is the backbone of the adversarial legal system. In
order for this relationship to function effectively, the mutual trust
and confidence between attorneys and their clients must be
respected. Subpoenas, like the one served upon Ms. Backiel, that
seek the testimony of an attorney about her client attack this
essential element of loyalty and confidentiality. Thus, such
subpoenas threaten not only the relationship between an individual
attorney and her client, but also the effective administration of
justice. If the government fails to respect the attorney-client
relationship, it is imperative that the judiciary intercede to protect
the adversarial nature of our system of justice.
The central importance of the attorney-client relationship is
evidenced (but not fully circumscribed) by the many distinct
protections the law affords it -- such as the attorney-client privilege,
the attorney work-product doctrine, ethical rules protecting client
confidences, and the Sixth Amendment right to effective assistance
of counsel. The law has traditionally treated confidential
communications with attorneys as an extraordinary form of
evidence and accorded them special protections.! This Court has
1 _—s“~ Prior to 1980, federal prosecutors generally did not consider lawyers as
potential sources of information in criminal investigations and rarely subpoenaed
them to testify before grand juries. Stern & Hoffman, Privileged Informers: The
Attomey Subpoena Problem and A Proposai for Reform, 136 U. Pa. L. Rev. 1783, 1787
Mie
stressed the vital role of confidentiality and privacy to the attorney-
client relationship in numerous cases. See, e.g., Upjohn v. United
States, 449 U.S. 383, 389 (1981); Trammel v. United States, 445 U.S.
40, 51 (1980); Fisher v. United States, 425 U.S. 391, 403 (1976);
United States v. Nobles, 422 U.S. 225, 237 (1975); Hickman v. Taylor,
329 U.S. 495, 510-11 (1947). It has reaffirmed in recent decisions
the historical role played by the attorney-client privilege:
The attorney-client privilege is the oldest of the
privileges for confidential communications known to
the common law. 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 administration of
justice. The privilege recognizes that sound legal
advice or advocacy serves public ends and that such
advice or advocacy depends upon the lawyer’s being
fully informed by the client.
Upjohn v. United States, 449 U.S. at 389 (citations omitted).
Amici recognize that the attorney-client privilege protects only
"those disclosures -- necessary to obtain informed legal advice --
which might not have been made absent the privilege," Fisher v.
United States, 425 U.S. 391, 403 (1976). But our concern is broader
than the limited contours of the evidentiary rule. Subpoenas
targeted at attorneys jeopardize the attorney-client relationship itself,
which the privilege was designed to protect. The attorney-client
privilege is premised on the belief that the administration of justice
requires the full and frank disclosure between attorney and client of
all relevant facts. McCormick on Evidence, supra sec. 87 at 205. The
(1988). It is only in the last decade that the government’s use of the "attorney
subpoena” has become an alarming threat to the long-standing tradition of
confidentiality in the attorney-client relationship.
-, gf
time-honored place of the attorney-client privilege recognizes the
importance of the confidential relationship between a lawyer and
her client. The proper functioning of the judicial system depends
upon the client’s confidence in the attorney as a faithful advocate.
The attorney-client privilege represents the acknowledgment that
confidentiality is more important than a rule of total disclosure.
The privilege is based on-the conviction that justice is better served
by requiring that confidences be maintained than that information
always be disclosed.
Subpoenas, like the one at issue in this case violate these
principles in two critical ways. First, they shatter the protection
against disclosure that ensures unfettered communication between
an attorney and her client. This Court has recognized the
consequences of the loss of confidentiality: "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 fully informed legal advice." Fisher v.
United States, 425 U.S. 391, 403 (1976). See also ABA Standards for
Criminal Justice, Standard 4-3.1(a) & commentary (2d ed. 1980)
("Nothing is more fundamental to the lawyer-client relationship than
the establishment of trust and confidence. Without it, the client may
withhold essential information from the lawyer").
Second, the subpoena at issue compels Ms. Backiel to assume a
role that is antithetical to her ethical obligations as a lawyer: it
forces her to become an informer against her client. The cardinal
rule of the attorney-client relationship is that the attorney must
guard the confidences of her client. Her role as an advocate is
single-mindedly to represent the interests of her client. Canon 4 of
the American Bar Association Model Code of Professional
Responsibility directs the attorney to "preserve the confidences and
lh ota
datPaeeris Sin nienoSereendiiN adits
»S.
secrets of a client." EC 4-6 (1982).2 Ethical Consideration 4-4
further requires the attorney "to advise the client of the attorney-
client privilege and timely to assert the privilege unless it is waived
by the client." The prosecution in this case knew full well that, since
her client’s whereabouts were unknown, there was no way for Ms.
Backiel to advise and consult her client, as Ethical Consideration 4-4
requires. Thus, the government knowingly forced Ms. Backiel to
decide between violating her ethical obligations and going to jail.
Putting an attorney to such a choice clearly interferes with her
ability to be an effective advocate.
The purpose of the ethical requirement of confidentiality -- the
duty to "preserve the confidences and secrets of a client" -- is to
ensure a bond of trust between the lawyer and her client. In order
to preserve that trust, there must be a broad cloak of protection
surrounding the communications between attorney and client
beyond simply shielding each piece of privileged information. The
requirement to preserve a client’s "secrets" is expansive in scope: it
refers to "information gained in the professional relationship that
the client has requested be held inviolate or that disclosure of which
would be embarrassing or would be likely to be detrimental to the
client." Model Code of Professional Responsibility DR 4-101(A)
(1982). The confidentiality rule thus applies to more than just
incriminating evidence. It protects all information that the client
communicates to his lawyer in confidence, as well as any other
2 The Model Code of Professional Responsibility provides:
[A] lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the
disadvantage of the client.
(3) Use a confidence or secret of his client for the
advantage of himself or of a third person, unless
the client consents after full disclosure.
Model Code of Professional Responsibility DR 4-101(B)(1982) (footnotes
omitted).
= *
information relating to the representation. Model Rules of
Professional Conduct Rule 1.6 Comment (1983). The grand jury
subpoena issued to Ms. Backiel demands that she engage in conduct
that directly contradicts these fundamental ethical requirements.
The power to subpoena an attorney thus deprives the attorney-client
relationship of its essential element of mutual trust and confidence.
Ii. COMPELLING AN ATTORNEY TO TESTIFY
BEFORE A GRAND JURY BURDENS THE SIXTH
AMENDMENT RIGHT TO COUNSEL
The government’s intrusion into the confidential relationship
between a lawyer and her client ultimately burdens the Sixth
Amendment right to counsel. This Court has repeatedly recognized
the fundamental nature of that right. See, e.g., Escobedo v. Illinois,
378 U.S. 478, 490-91 (1964); Gideon v. Wainwright, 372 U.S. 335,
342-43 (1963); Powell v. Alabama, 2&7 U.S. 45, 68-69 (1932). This
Court explained the importance of the right to counsel in Powell v.
Alabama: "The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel." 287
U.S. at 69. Thus, this Court stated in Johnson v. Zerbst, 304 U.S.
458, 462 (1938), the assistance of counsel "is one of the safeguards
of the Sixth Amendment deemed necessary to insure fundamental
human rights of life and liberty.... stands as a constant admonition
that if the constitutional safeguards it provides be lost, justice will
not ’still be done.” |
If the government is allowed to turn an attorney into an
informant against her own client, a clear message is sent to all
clients that their attorneys cannot be trusted. A client’s knowledge
that any confidences he trusts to his attorney may be divulged at the
behest of a prosecutor will inhibit him from freely sharing
ts
information with his lawyer. This chilling of communications
between attorney and client prevents attorneys from effectively
representing their clients.
The American Bar Association has emphasized the crucial role
played by unfettered attorney-client communication in ensuring
effective legal representation:
The observance of the ethical obligation of a lawyer
to hold inviolate confidential information of the
client not only facilitates the full development of facts
essential to proper representation of the client but also
encourages people to seek early legal assistance....A
fundamental principle in the client-lawyer
relationship is that the lawyer maintain
confidentiality of information relating to the
representation.
Model Rules of Professional Conduct Rule 1.6 comment
(1983)(emphasis added).
Courts have also noted this connection between the chilling of
communication between a client and his attorney and the denial of
effective assistance of counsel:
If a client feels that part or all of his conversations
with his attorney may one day be divulged, that client
will necessarily refrain from being fully open and
truthful with this attorney. This, in turn, will result in
less than effective assistance of counsel and could
very well result in diminishing the importance of the
Sixth Amendment’s right to assistance of counsel.
In re Witness-Attomey Before Grand Jury No. 83-1, 613 F. Supp. 394,
399-400 (S.D. Fla. 1984). Accord Fisher v. United States, 425 U.S.
391, 403 (1976); Weatherford v. Bursey, 429 U.S. 545, 563-65
wits
(1977)(Marshall, J., dissenting); Jn re Terkeltoub, 256 F. Supp. 683,
685 (S.D.N.Y. 1966).
Amici are deeply concerned that the policy of subpoenaing
attorneys to give evidence about their clients has already had a
demoralizing effect on the legal profession. As two commentators
involved in litigation concerning attorney subpoenas have noted: "It
is not an overstatement to say that the government’s new attorney
subpoena policy has caused widespread fear and anxiety in the
criminal defense bar." Stern & Hoffman, Privileged Informers: The
Attorney Subpoena Problem and A Proposal for Reform, 136 VU. P. L.
R. 1783, 1795 (1988). This assault on the practice of law can only
result in the wholesale deprivation of the Sixth Amendment right to
effective assistance of counsel.
Forcing any criminal defense attorney to testify about her client
will have far-reaching ramifications for our adversary system of
justice. The effects go far beyond the harm to a single client.
Turning lawyers into informants will weaken the effectiveness of the
provision of legal counsel in general. In this case, the greatest
danger posed by the subpoena issued to Ms. Backiel is not the
damage to her relationship with her individual client, but the threat
it poses for society’s interests that are served by the adversary system
as a whole. Amici fear that the district court’s total disregard of
these issues will result in the erosion of the Sixth Amendment’s
guarantees. Amici find it especially disturbing that the Third
Circuit’s opinion virtually ignored this important constitutional issue
at the heart of this case.
Ill. THE GOVERNMENT MUST MAKE A
PRELIMINARY SHOWING OF NEED BEFORE
AN ATTORNEY CAN BE COMPELLED TO
TESTIFY
The confidential relationship between attorney and client is the
cornerstone of our adversary system. Any intrusion into this special
relationship must therefore be examined with utmost scrutiny.
Indeed, the issue of whether special constraints should apply to
attorney subpoenas has been the subject of considerable
controversy. In the past several years there have been conilicting
circuit court decisions* concerning the extent of a prosecutor’s
power to compel the testimony of an attorney whose client is the
target of the grand jury’s investigation. Many courts have expressed
their concern over this "disturbing" practice.‘ In addition, numerous
legal scholars who have studied this question have called for limits
on this potentially devastating attack on the attorney-client
relationship.» As one commentator has observed:
1A tne ali ale
3 = See, e.g., In re Grand Jury Subpoena Served Upon Doe, 759 F.2d 968 (2d
Cir.), vacated, 781 F.2d 238 (2d Cir. 1985)(en banc), cert. denied, 475 U.S. 1108 (1986);
In re Grand Jury Witness (Salas), 695 F.2d 359 (9th Cir. 1982); In re Special Grand Jury
No. 81-1 (Harvey), 676 F.2d 1005 (4th Cir. 1982), vacated & withdrawn, 697 F.2d 112
(4th Cir. 1982)(en banc); In re Walsh, 623 F.2d 489 (7th Cir.), cert. denied, 449 US.
994 (1980).
4 = See, e.g., United States v. Wolfson, 558 F.2d 59, 65 (2d Cir. 1977)("We are
sensitive to the grave dangers posed when counsel appears before the same grand jury
that indicted defendant"); United States v. Colacurcio, 499 F.2d 1401, 1404 (9th Cir.
1974); In re Grand Jury Proceedings (Duffy), 473 F.2d 840, 843 (8th Cir. 1973); In re
Grand Jury Subpoena to Attorney (under Seal), 679 F. Supp. 1403, 1404 (N.D.W. Va.
1988)("The implications of this disturbing practice are great, to the point of
threatening the keystone of the attorney-client relationship, most notably the trust
placed by clients in their attorneys");Jn re Grand Jury Subpoena (Legal Services
Center), 615 F. Supp. 958, 969 (D. Mass. 1985); In re Grand Jury Investigation
(Sturgis), 412 F. Supp. 943, 945 (E.D. Pa. 1976)("We observe preliminarily that we are
disturbed by the practice of calling a lawyer before a grand jury which is investigating
his client"); In re Terkeltoub, 256 F. Supp. 683, 685 (S.D.N.Y. 1966).
5 See, e.g., Peirce & Colamarino, Defense Counsel as a Witness for the
Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas to Counsel for
Targets of Investigations, 36 Hastings L.J. 821 (1985); Stern & Hoffman, Privileged
Informers: The Attomey Subpoena Problem and A Proposal for Reform, 136 U. Pa. L.
Rev. 1783 (1988); Suni, Subpoenas to Criminal Defense Lawyers: A Proposal for Limits,
65 Or. L. Rev. 215 (1986); Weiner, Federal Grand Jury Subpoenas to Attorneys: A
Proposal for Reform, 23 Am. Crim. L. Rev. 95 (1985); Zwerling, Federal Grand Juries
-10-
The new effort by prosecutors ... to erode individual
privacy by compelling lawyers to produce evidence
incriminating their clients is at once both alarming
and all-too-predictable.... [T]he prosecutors’ actions
threaten the core and fibre of the attorney-client
relationship.... [I]t is incomprehensible that the
courts have not uniformly recognized the serious
threat to criminal defendants, their attorneys and to
the entire criminal justice system posed by the effort
to transform the defense lawyer into a witness for
the prosecution.
Tarlow, Witness for the Prosecution -- A New Role for the Defense
Lawyer, 1 J. Crim. Def. 331 (1975).
The government's interest in a lawyer’s testimony cannot by
itself justify this infringement on the attorney-client relationship and
the Sixth Amendment rights of defendants. Courts must engage in
an analysis of whether or not the government's interest does indeed
outweigh the fundamental right of all criminal defendants to
competent legal representation and society's interest in the effective
administration of justice. It is simply too dangerous to our adversary
system to allow prosecutors unbridled use of the subpoena to
compel evidence from attorneys about their clients. Because of the
very serious effect of compelling an attorney's testimony, the
government should be held to a standard of need for the testimony
v. Attorney Independence and the Attorney-Client Privilege, 27 Hastings LJ. 1263 (1976).
Note, Grand Jury Subpoenas of a Target's Attorney: The Need for a Preliminary
Showing, 20 Ga. L. Rev. 747 (1986); Note, The Grand Jury Subpoena: Is It the
Prosecutor’s "Ultimate Weapon” Against Defense Attorneys and Their Clients, 13
Pepperdine L. Rev. 791 (1986). See also Reform of the Grand Jury System: Hearings
on S. 3274 Before the Subcomm. on Constitutional Rights, Senate Comm. on the
Judiciary, 94th Cong., 2d Sess. 84-86 (1976)\(testimony of Melvin B. Lewis, Legislative
Chairperson of The Nationa! Association of Criminal Defense Lawyers)
ee,
Oe Ee ee
sae
-ll-
that is higher than that applied in the case of an ordinary witness.
Only if the information is both relevant and absolutely necessary to
the government’s investigation should society’s interest in the
attorney-client relationship give way. The government should bear
the burden of demonstrating that there is no less intrusive means of
acquiring the information it seeks. Certainly the importance of
preserving the attorney-client relationship justifies the minimal
burden that this requirement would place on grand jury
Several courts, recognizing the damaging effect of compelling
testimony from an attorney, have applied this higher standard. In Jn
re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005 (4th Cir.
1982), vacated on other grounds & withdrawn, 697 F.2d 112 (4th Cir.
1982)(en banc), the Fourth Circuit adopted the rule that the
government must make a preliminary showing of relevance and
need when a subpoenaed attorney is in an ongoing attorney-client
relationship with the target under investigation.
Both courts and commentators have advocated the adoption of
a preliminary showing requirement in order to diminish the threat
that attorney subpoenas pose for the attorney-client relationship.
See, e.g., In re Grand Jury Subpoena Served upon Doe, 759 F.2d 968,
975 (2d Cir.)(adopting Harvey preliminary showing requirement),
vacated, 781 F.2d 238 (2d Cir. 1985)(en banc), cert. denied, 475 U.S.
1108 (1986); Peirce & Colamarino, Defense Counsel as a Witness for
the Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas
to Counsel for Targets of Investigations, 36 Hastings LJ. 821, 867-871
(1985)(proposing preliminary showing requirement before issuance
of any subpoena to an attorney for a target of a grand jury
investigation); Stern & Hoffman, Privileged Informers: The Attorney
Subpoena Problem and A Proposal for Reform, 136 U. Pa. L. Rev.
1783, 1831-35 (1988)(same); Suni, Subpoenas to Criminal Defense
-12-
Lawyers: A Proposal for Limits, 65 Or. L. Rev. 215, 277-91
(1986)(same).
District courts have also applied the requirement of a
preliminary showing to subpoenas issued to a target’s attorney. See,
e.g., In re Grand Jury Subpoena (Legal Services Center), 615 F. Supp.
958 (D. Mass. 1985)(holding that government has burden of showing
subpoenaed information was necessary and unobtainable by other
reasonable means); Jn re Witness-Attomey Before Grand Jury No. 83-
1, 613 F. Supp. 394 (S.D. Fla. 1984). The court in Jn re Witness-
Attomey Before Grand Jury No. 83-1, supra, further explained the
showing of need that the government must make in order to justify
compelling an attorney’s testimony:
A criminal defense attorney should not be brought
before a federal grand jury and be compelled to
divulge attorney-client secrets where the government
could very well utilize alternative, less intrusive,
methods in order to gain the very same information.
613 F. Supp. at 398.
State courts have similarly limited the use of attorney
subpoenas. In Jn re Nackson, 221 NJ. Super. 187 (App. Div. 1987),
aff'd, 114 N.J. 527 (1989), for example, the New Jersey Appellate
Division reversed an order directing an attorney, Nackson, to
answer questions before a grand jury concerning the whereabouts of
his client, a fugitive. Nackson had spoken twice with his client on
the telephone about the client’s possible return to New Jersey for
disposition of the criminal charges. Nackson refused to reveal to a
grand jury his client’s telephone number, occupation and employer.
The trial judge concluded that this information was not privileged
and directed Nackson to testify. The Appellate Division reversed
the trial judge’s order, holding that, if there were “less intrusive
ed
«ffs
means for obtaining information to return an indictment against the
client of an attorney, those means must be pursued to avoid any
infringement on the cherished Sixth Amendment and state
constitutional right to counsel." 221 N.J. Super. at 206-07. Under
the test applied in Harvey, In re Grand Jury Subpoena (Legal Services
Center), In re Witness-Attomey before Grand Jury No. 83-1, and In re
Nackson, the subpoena issued in this case to Ms. Backiel would
clearly be quashed.
As discussed above, the practice of compelling attorneys to
divulge information about their clients threatens not only the
particular relationship between the subpoenaed attorney and her
client but the attorney-client relationship in general, as well as the
Sixth Amendment right of counsel of all criminal defendants.
The District Court and the Third Circuit in this case treated the
subpoena issued to Ms. Backiel as if it were a run-of-the mill
demand for grand jury test:mony. The government should not be
able to obtain information from an attorney about her client as
easily as it may obtain evidence from any other witness. As Judge
Frankel recognized twenty years ago, "it bears emphasis that while
the witness before us is a lawyer, the crucial interests at stake belong
to the whole community.... [T]his has nothing to do with whether
lawyers for their own sakes should be treated better or worse than
other people. It has to do with how the public may fare...." Jn re
Terkeltoub, 256 F. Supp. 683, 684-85 (S.D.N.Y. 1966).
IV. THE INSTANT SUBPOENA VIOLATES LINDA
BACKIEL’S FIRST AMENDMENT RIGHTS
Linda Backiel has devoted much of her professional career to
representing those whom the First Amendment's guarantees of free
speech, association, petition and assembly were specifically designed
to protect -- radical critics of government. As a legal worker, law
PT TT
«i.
student, and lawyer, she has participated in dozens of cases seeking
to vindicate the rights of such persons to associate, assemble,
petition and advocate, and to be free from harassment for
expressing their views.
For the last four years she has dedicated her lega! skills and
energies to the defense of the Puerto Rican independence
movement. In particular, for the last four years she has represented
Antonio Camacho Negro and co-defendants in a federal criminal
prosecution of fifteen Puerto Rican independence advor-tes, United
States v. Gerena et al., Indictment No. H85-50 (TEC) (D.Conn.),
charged with conspiracy and related offenses in connection with a
1983 Wells Fargo robbery of $7 million in West Hartford,
Connecticut, in which the government alleged that defendants were
members of Los Macheteros, an organization of Puerto Ricans
struggling for the independence of their country. See United States v.
Melendez-Carrion, 820 F.2d 56 (2d Cir. 1987), reh’g denied, 837 F.2d
61 (2d Cir. 1988). While initially the press in the United States
attempted to portray the Hartford trial as an ordinary criminal trial,
even local newspapers were eonstrained to the editorials titled "Who
Are the Real Lawbreakers?", criticized the F.B.I. Many both on the
island and in the United States, see the prosecution as merely the
latest incident in a ninety-two year history of persecution of the
independence movement.®
Moreover, Ms. Backiel has no information responsive to the
subpoena or relevant to the grand jury’s decision whether to indict
Ms. Duke. It is submitted that the U.S. Attorney knows full well that
(a) he does not need Backiel’s testimony to obtain an indictment,
6 See,e.g., Testimony of International League for the Rights and Liberation of
Peoples, the Center for Constitutional Rights, the Puerto Rican Institute for Civil
Rights, the Unitary Committee Against Repression, the National Lawyers Guild, and
others, presented August 14, 1990, before the United Nations Special Committee on
the Implementation of the Resolution of the Granting of Independence to Colonized
Nations and Peoples.
nee Te, ee
:
H
a.
see, e.g., United States v. Wells, 766 F.2d 12, 22 (1st Cir. 1985), and
that (b) she will not provide any testimony about any client behind
the closed doors of a grand jury room. It is further submitted that,
rather than some rightful demand for information necessary, or
even useful, to the legitimate purposes of the grand jury, -- the
instant subpoena was issued and is intended to serve two illicit
purposes: to freeze testimony and/or obtain evidence for trial and,
of greater concern to amici, to harass and punish the witness for her
advocacy on behalf of politically controversial clients.
Indeed, amici perceive the instant subpoena as a direct
response to Ms. Backiel’s advocacy for those involved in the Puerto
Rican independence movement. It would appear that the service of
the Philadelphia subpoena by two of the FBI agents in charge of the
last two cases in which she represented alleged members of an
independence organization (one of whom was acquitted of assault
on the FBI) was, if not direct retaliation for her advocacy, at least
intended to serve as a warning that such advocacy could have its
price. Moreover, given her longstanding public and well-known
position about political abuses of the powers of the grand jury,’ it
would appear that those who decided to issue and serve the
subpoena did so to force her to choose between jail and potential
loss of her profession and betraying her clients.
American courts have a long tradition of recognizing the
sanctity of the attorney-client relationship and its grounding in the
Sixth Amendment (see supra points I and II). Amici contend that, in
7 ~~ See, e.g., Hearings Before the Subcommittee on Immigration, citizenship and
International Law of the Committee on the Judiciary House of Representatives, Ninety-
Fifth Congress, First Session, on HR 94 "Grand Jury Reform,” March 17, April 27,
June 1 and 29, 1977, Part I, Serial No. 22, Testimony of Linda Backiel, Grand Jury
Project, and Hearings Before Subcommittee on Criminal Justice of the Committee on
the Judiciary House of Representatives, on HR 1407, "The Grand Jury Reform Act of
1985," May 8, 1985, Testimony of Linda Backiel.
_ e
the case of lawyers who represent, and thus enjoy the confidence of,
clients who are political dissidents, an even more sacred truth must
attach. The very sanctity of the right to free political association
guaranteed by the First Amendment especially informs such
relationships, and is also threatened here.
It is axiomatic that the right to express and advocate dissent is
protected by the First Amendment. Amici, which are organizations
whose members represent individuals and groups which regularly
engage in such protected activity, are concerned that compelling an
attorney who serves as a professional advocator to testify before a
grand jury will chill their own First Amendment activities as well as
those of their members and clients. Cf. NAACP v. Button, 371 U.S.
415, 430-31 (1963). It is well documented that grand juries have
often been used by the government for the improper purpose of
suppressing political dissent.8 If the courts will not protect
politically vulnerable relationships from cavalier governmental
intrusion, the continued existence of such relationships is seriously
threatened.
8 See, e.g., Berkan, The Federal Grand Jury: An Introduction to the Institution,
Its Historical Role, Its Current Use and the Problems Faced by the Target Witness, 17
Inter-American U.L. Rev. 102 (1983); Deutsch, The Improper Use of the Federal
Grand Jury: An Instrument for the Internment of Political Activists, 75 J. Crim. L. &
Criminology 1159 (1984). As one commentator has observed:
Federal grand juries have less than a clean slate with respect to the
First Amendment. The era of alien and sedition laws was
characterized by intemperate judicial charges to grand juries which
were inconsistent with a concern for First Amendment rights. It
was not however until the late 1940’s that grand juries began the
vigorous inquiry into allegedly dissident political associations,
including the independent secretariat of the United Nations,
subpoenaing the very targets of investigations, and parallelling,
sometimes even duplicating, congressional committee
investigations. Recently, there has been a resurgence of such
grand jury investigations into at least marginally-protected
activities, resulting in the assertion by scholars, newsmen and
others of first amendment rights.
Boudin, The Federal Grand Jury, 61 Geo. LJ. 1, 4 (1972)(citations omitted).
nd
—_
BAe att PS Re pattie.
|
)
4
7.
This Court has often held that "a State’s interest must be
*compelling’ or paramount’ to justify even an indirect burden on
First Amendment rights." Branzburg v. Hayes, 408 U.S. 665, 700
(1972), citing, at 680, n. 18, NAACP v. Button, supra; Thomas v.
Collins, 323 U.S. 516, 530 (1945); DeGregory v. Attorney General of
New Hampshire, 383 U.S. 825, 829 (1966); Bates v. Little Rock, 361
U.S. 516, 524 (1960) ("Where there is a significant encroachment
upon personal liberty, the State may pervail only upon showing a
subordinating interest which is compelling."); Schneider v. State, 308
U.S. 147, 161 (1939); and NAACP v. Alabama, 357 U.S. 449, 464
(1958). See also Buckley v. Valeo, 424 US. 1, 64 (1976)("[S]ignificant
encroachments on First Amendment rights...cannot be justified by a
mere showing of some legitimate governmental interest. Since
NAACP v. Alabama we have required that the subordinating
interests of the State must survive exacting scrutiny."); Gibson v.
Florida Legislative Comm., 372 U.S. 539, 546 (1963); and Reporters
Com. v. American Telephone & Telegraph, 593 F.2d 1030, 1064 (D.C.
Cir. 1978), cert. denied 440 U.S. 949 (1979)
This Court more recently has found the danger greater to First
Amendment rights where the governmental infringement affected
supporters of an unpopular cause - in that case, a minor political
party - who found "services rendered scarce because of public |
hostility and suspicion." Brown v. Socialist Workers ’74 Campaign
Comm., 459 U.S. 87, 95-97 (1982) (footnote omitted).
The government, by seeking to compel Ms. Backiel to testify
threatens Backiel’s relationships to all her past, present and future
clients, most of whom indeed have been political dissidents and
advocates of unpopular political causes. Yet the government has
made no showing of a "compelling" need to burden Backiel’s First
Amendment right to freedom to association, nor have the courts
below required such a showing. See Branzburg v. Hayes, supra. There
eS ©
has been no “exacting scrutiny" of the State’s subordinating interests
in abridging such right. See Buckley v. Valeo, supra.
[W]hen governmental activity collides with First
Amendment rights, the Government has the burden
of establishing that its interests are legitimate and
compelling and that the incidental infringement upon
First Amendment rights is no greater than is
essential to vindicating its subordinating interests.
Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972). See also
In re Stolar, 401 U.S. 23 (1971). The government in the instant case
has so far not been required, either by the district or the circuit
court, to meet its burden of establishing a compelling need for
Backiel’s testimony -- or, indeed, any need for it at all -- sufficient to
overcome her substantial First Amendment rights. This Court must
oblige it to do so.
Amici submit that if the courts do not insulate Backiel’s First
Amendment right to freedom of association, theirs are equally as
ephemeral. We therefore urge that this Court grant the petition for
a writ of certiorari.
CONCLUSION
Amici are alarmed by the government’s ever-increasing use of
the grand jury to seek incriminating evidence against a citizen by
compelling it from her lawyer. As we have demonstrated above, this
practice threatens the very foundation of our adversarial system of
justice. The government has increasingly subjected lawyers with
whom it disagrees to sanctions and contempt in order to limit their
effectiveness as advocates for unpopular causes.
Amici believe that this Court should place a reasonable
restraint on this practice that threatens to eviscerate the attorney-
-19-
client relationship and the Sixth Amendment right to counsel.
Amici urge this Court to require that, before the issuance of a grand
jury subpoena to an attorney seeking information about her client,
the government must make a preliminary showing that the
information sought from the attorney is material and necessary to
the investigation and that there is no less intrusive means to acquire
the information. The writ of certiorari should therefore be granted.
RESPECTFULLY SUBMITTED,
ARTHUR KINOY
DOROTHY E. ROBERTS
Rutgers Schoo! of Law—Newark
15 Washington Street
Newark, New Jersey 07102
(201) 648-5561
MARTHA COPLEMAN
60 Pineapple Street
Brooklyn, NY 11201
(718) 858-4620
Attomeys for Amici Curiae
*Counsel of Record
August 30, 1990
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.