Petition for Writ of Certiorari — Disciplinary Board of Supreme Court of Pennsylvania v. Baylson

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No. 92———

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA,

Petitioner.

MICHAEL M. BAYLSON, JAMES J. WEST, and

THOMAS W. CORBETT, JR.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

DAVID E. KENDALL *

R. HACKNEY WIEGMANN

WILLIAMS & CONNOLLY

725 Twelfth Street, N.W.

Washington, D.C. 20005

(202) 434-5000

Counsel for Petitioner

The Disciplinary Board of the

* Counsel of Record Supreme Court of Pennsylvania

WILSON - Eras PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

——— Nee ee Ee

QUESTIONS PRESENTED FOR REVIEW

1. Whether a district court is prohibited from promul-

gating local rules pertaining to the service of subpoenas

on attorneys solely because such rules are not expressly

authorized by the Federal Rules of Criminal Procedure

and are not “matters of detail” pertaining to court

administration?

2. Whether a State ethics rule regulating the conduct

of attorneys in serving subpoenas upon other attorneys

is preempted by federal law under the Supremacy Clause

insofar as it is applicable to federal prosecutors simply

because it is arguably incompatible, although not actually

in conflict, with federal law or whether instead the State’s

ethics rule deserves more deference because it arises from

a substantial and compelling State interest in regulating

the conduct of attorneys?

3. Whether a local federal district court rule or a

State ethics rule which requires prosecutors to obtain

prior judicial approval of subpoenas compelling attorneys

to testify about past or present clients may be enforced

against federal prosecutors practicing in the federal dis-

trict courts of that State?

(i)

PARTIES TO THE PROCEEDINGS BELOW

The Disciplinary Board of the Supreme Court of

Pennsylvania petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Third Circuit affirming an order of the United States

District Court for the Eastern District of Pennsylvania.

Respondents are Michael M. Baylson, James J. West, and

Thomas W. Corbett, Jr., who are members of the Pennsy]l-

vania bar and the United States Attorneys for the East-

ern, Middle, and Western Districts of Pennsylvania,

respectively.*

* By stipulation of counsel approved by the district court on

March 6, 1990, Thomas W. Corbett, Jr., the current United States

Attorney for the Western District of Pennsylvania, was substituted

as a party plaintiff in place of Charles D. Sheehy, the acting United

States Attorney for that district at the time suit was filed. See also

Note 7, infra.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS BELOW

TABLE OF AUTHORITIES

JURISDICTION

OPINIONS BELOW

CONSTITUTIONAL PROVISIONS INVOLVED

STATUTORY AND OTHER PROVISIONS IN-

VOLVED Seas a ccapicaulinaneate

STATEMENT OF THE CASE

A. Statement of Facts ..

B. The Opinion of the District Court ....-...

C. The Opinion of the Court of Appeals

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS’ DECISION IM-

POSES UNPRECEDENTED AND UNWAR-

RANTED RESTRICTIONS ON THE RULE-

MAKING AUTHORITY OF FEDERAL DIS-

TRICT COURTS WHICH WOULD INVALI-

DATE A HOST OF LOCAL RULES

The Court of Appeals’ Method for Adjudi-

eating a Local Rule “Inconsistent” With a

Federal Rule of Procedure and Its “Matter

of Detail” Test Is Not Grounded In Prece-

dent and Is Overly Restrictive

_ The Court of Appeals’ Decision Endangers a

Myriad of Local Rules and Ignores the Well-

Established Authority of Federal District

Courts To Supervise the Conduct of Attor-

neys Within Their Jurisdictions

(iii)

I].

IT.

TABLE OF CONTENTS—Continued

1. Numerous Non-Ethical Local Rules Are

Subject to Invalidation Under the Court

of Appeals’ Test ..................

THE COURT OF APPEALS’ SUPREMACY

CLAUSE ANALYSIS IS INSENSITIVE TO

THE IMPORTANT STATE INTEREST IN

REGULATING THE CONDUCT OF ATTOR-

NEYS .. ses ecscelaeslibaapscvidaiiieacaaisaesabacionis

FLICTS WITH THE FEDERAL RULE OF

LAW GOVERNING UNITED STATES PROS-

ECUTORS IN THE COMMONWEALTH OF

MASSACHUSETTS AND THREE OTHER

STATES ...

CONCLUSION ...... opened lidadeieddmaiuaeatdiis wiiebda Sudatielanciendaas

APPENDIX

Page

on <sc nteaeaiatmeraaie cacanaa ae ELE LA OO —

TABLE OF AUTHORITIES

CASES Page

Branzburg v. Hayes, 408 U.S. 665 (1972) 29

California v. ARC America Corp., 490 U.S. 93

(1989) 21, 23

Cohen v. Hurley, 366 U.S. 117 (1961) 21

Colgrove v. Battin, 413 U.S. 149 (1973) 13

Cooley v. Strickland Transportaiton Co., 459 F.2d

779 (5th Cir. 1972) 13

Curtiss-Wright Corp. v. General Electric Co., 446

U.S. 1 (1980) .... 14

Eash v. Riggins Tr ucking Inc., 157 F.2d 557 (3d

Cir. 1989) 12

Ex parte Burr, 23 U.S. (9 Wheat.) 529 (1824) 17

Frazier v. Heebe, 482 U.S. 641 (1987) 17

Goldfarb v. Virginia State Bar, 421 U.S. 773

(1975) - nao , 20

Hillsborough Cou nty »y. Automated Medical Labs.,

Inc., 471 U.S. 707 (1985) 21

Hines v. Davidowitz, 312 U.S. 52 (1941) 23

Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165

(1989) 12

Hurtado v. California, 110 U.S. 516 (1884) 13

In re Grand Jury Matter, 926 F.2d 348 (4th Cir

1991) 24

In re Grand Jury Matters, 751 F.2d 13 (1st Cir.

1984) . 27

In re Grand Jury Subpoena for Attorney Repre-

senting Criminal Defendant Re yes-Requena, 913

F.2d 1118 (10th Cir. 1990), cert. denied, 111

S. Ct. 1581 (1991) 24

In re Grand Jury Subpoena (Legal Services Cen-

ter). 615 F. Supp. 958 (D. Mass. 1985) 27

In re Grand Jury Subpoena Served Upon Doe, 781

F.2d 238 (2d Cir. 1986), cert. denied, 475 US.

1108 (1986) 24

In re Klein, 776 F.2d 628 (7th Cir. 1985) 24

In re Ruffalo, a U.S. 544 (1968) 17

In re Snyder, 472 U.S. 634 (1985) 17

In re Special oad Jury No. 81-1 (Harvey), 676

F.2d 1005, vacated as moot, 697 F.2d 112 (4th

Oe = cunasiiaee ppleamanaacdaiiciehimaeinaodpooie 27

TABLE OF AUTHORITIES—Continued

Kirby v. Illinois, 406 U.S. 682 (1972)

Leis v. Flynt, 489 U.S. 438 (1979) .... ae a

Middlesex Ethics Comm. v. Garden State Bar

I, Ge Oris He eID oss cc cv acdacecretcccnndecteosenees

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447

ER PR PEP RIC ORR LEE Ce eh EN

Sperry v. Florida, 373 U.S. 379 (1968) .................

Theard v. United States, 354 U.S. 278 (1957)

United States v. Dionisio, 410 U.S. 1 (1973) .....

United States v. Hammad, 858 F.2d 834 (2d Cir.

1988), cert. denied, 111 S. Ct. 192 (1990)

United States v. Jamil, 707 F.2d 638 (2d Cir.

United States v. Klubock, 832 F.2d 664 (1st Cir.

1987) (en banc) ;

United States v. Klubock, 832 F.2d 649 (1st Cir.

1987) (vacated)

United States v. Klubock, 639 F. Supp. 117 (D.

Mass. 1986)

United States v. Lopez, 765 F. Supp. 1433 (N.D.

A ee a eee ee eae

United States v. Perry, 857 F.2d 1346 (9th Cir.

1988) ......... Pe IR NO! SUN FSR RIDE .

United States v. R. Enterprises, Inc., 111 S. Ct.

TEE A TIIIIITE D <.coscsriccesco’cosamabehiiebeemaeetstlohbideelimenniobiadibamiaeaittaementhddanhiniar

United States v. Williams, 112 S. Ct. 1735 (1992)

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

CONSTITUTIONAL PROVISIONS

United States Constitution, Article VI, Clause 2

Pennsylvania Constitution, Article V, Section

de Saker ed

FEDERAL STATUTES

I BITE TR ssi Aicsanonpsspacespeannlncneniiciasommnmaensniienash aah

28 U.S.C. § 1331

28 U.S.C. § 2071 .......... ious ain

TED TIE UIE: iensensnssescen\scchippionsidinumaenclinshobaiusapbapaelaalaeniadlanaenioan

20,

24,

vii

TABLE OF AUTHORITIES— ontinued

FEDERAL RULES Page

Fed. R. Civ. P. 37 (a) (2) 15

Fed. R. Civ. P. 54-...... ieee 14

Fed. R. Civ. P. 56 16

Fed. R. Civ. P. 83 2,11, 12,13

Fed. R. Crim. P. 16 19

Fed. R. Crim. P. 17 passim

Fed. R. Crim. P. 57 passim

STATE RULES

Alaska Local Rule — (E) 15

C.D. Cal. Local Rule 2.8.2.1 16

C.D. Cal. Local Rule 7.14.2 16

D.C. Local Rule 108 (h) 16

D.C. Local Rule 115 (b) 16

D. Conn. Local Rule 9(d) (4) 15

D. Del. Local Rule 83.6 (d) (2) 18

D. Idaho Local Rule 56.1 (a) 16

D. Idaho Local Rule 83.6 (a) 18

D. Kan. Local Rule 210 (j) 15

D. Kan. Local Rule 407 (a) 18

D. N.M. Local Rule 37 15

D. Or. Local Rule 110-3 18

D. Wy. Local Rule 207 (0) 15

E.D. Pa. Local Rule 14(TV) (B) 3,6, 18

E.D. Tenn. Local Rule 83.6 18

E.D. Wash. Local Rule 47 (f) 16

E.D. Wis. Local Rule 8.07 16

E.D. Wis. Local Rule 6.05 (a) (1) 16

E.D. & W.D. Ark. Local Rule 25 16

Mass. S.J.C.R. 3:08 (PF 15) 10, 23, 24

M.D. Pa. Local Rule 304.2 4,6, 18

M.D. Tenn. Local Rule 8 (b) (7) (b) 16

N.D. Ala. Local Rule 83.1 (e) 16

N_D. Ala. Local Rule 83.1(f) -....-.---- 18

N.D. Ill. Local Rule 3.15 . 16

N.D. Ind. Local Rule 44 16

N.D. Tex. Local Rule 13.5 16

N.D. W.Va. Local Rule 1.19-...... 16

N.D. & S.D. Miss. Local Rule 6 (c) ....-.---.------------ . 15

viii

TABLE OF AUTHORITIES—Continued

Page

Pa. Rules of Disciplinary Enforcement 102, 201,

REEL eee ee aC Oe ase EOE 5

Pa. Rule of Professional Conduct 3.10 -...................... passim

R.I. Rule of Professional Conduct 3.8(f) ............... ... 10, 26

S.D. Fla. Local Rule 16(D) (3) Be a 16

baths Gis RINE TI ID once cn nceccnnencevescscenenecccesececsvscooes 16

S.D. Ga. Local Rule IV (8) ............000.. 0.00 -cee cece eee eee eee 16

Tenn. Ct. R. DR 7-108 ..................... Ser:

Vad. DR B-1GB CA) (GB)... --nccnccccnenaccncccas-occcncsncscsee-seec--s. 10,36

es Oils a I aca ction accc-cricncnceomvansca¥ascovcoumeccucs 10, 26

W.D. Pa. Local Rule 22(1) (B) ........................... 4,6,18

MODEL RULES

Model Code of Professional Responsibility DR 7-

I a esansinees : 18

Model Rule of Professional Conduct 1.4 _......... 19

Model Rule of Professional Con?*'ct i.7 aT Nase bes 19

Model Rule of Professional Conic: ! * ae 19

Model Rules of Professional Conduct 1.7- 1.9. dS EEN 19

Model Rule of Professional Conduct 1.15... . 19

Model Rule of Professional Conduct 2.2... 19

Model Rule of Professional Conduct 3.1... 19

Model Rule of Professional Conduct 3.2 _...__.. ak. 19

Model Rule of Professional Conduct 3.3... 19

Model Rule of Professional Conduct 3.3(a) (4) __. 18

Model Rule of Professional Conduct 3.6... 19

Model Rule of Professional Conduct 3.8 (d) inn Se ae

Model Rule of Professional Conduct 3.8 (f) 10, 26, 29

Model Rule of Professional Conduct 4.2 19

Model Rule of Professional Conduct 7.1-7.5 19

MISCELLANEOUS

ABA/BNA Lawyers’ Manual on Professional Con-

I 18

Bresler, Quashing Witness Subpoenas Without Ex-

plicit Authority From the Federal Rules of

Criminal Procedure, 25 Crim. L. Bull. 315

¢: ) Ree es seoialssisiceabuacosobiat aida auetcoaisaaiatitlamidaniaieaia aaa 27

TABLE OF AUTHORITIES—Continued

Comment, Attorneys’ Subpoenas: The Constitu-

tional, Ethical, and Practical Issues, 60 Temple

L.Q@. 121 (1987) ....-.-.-22-------ecceeennncnrensoneaccscnorenseees

Comment, Grand Jury Subpoenas to Defense At-

torneys Representing Targets: An Ethical/

Legal Tug of War, 9 Campbell L. Rev. 347

CIGD ear ceticsaenes eames cess snsctecomccconnneciannsinenensneasipanehbain

Cramton & Udell, State Ethics Rules and Federal

Prosecutors: The Controversies Over the Antt-

Contact and Subpoena Rules, 53 U. Pitt. L. Rev.

291 (1992) a

7 Department of Justice Manual at 9-2. 161 (a) at

SSie. =F 5

Falsgraf, A Dangerous Wedge Between Lawyer

and Client, 72 A.B.A.J. 8 (July 1986) ..

Genego, Risky Business: The Hazards of Being a

Criminal Defense Lawyer, 1 Crim. Just. 2

(1986) ...

Glanzer & Taskier, Attorneys Before the Grand

Jury: Assertion of the Attorney-Client Privi-

lege to Protect a Client’s Identity, 75 J. Crim.

L. & Criminology 1070 (1984) -.....

Krieger & Van Dusen, The Lawyer, the Client and

the New Law, 22 Am. Crim. L. Rev. 737

PID cae ica egucsniicancopenennenmianenn

Note, A Critical Appraisal of the Justice Depart-

ment Guidelines for Grand Jury Subpoenas Is-

sued to Defense Attorneys, 1986 Duke L.J. 145

Note, After United States v. Klubock: Can Massa-

chusetts’ New Ethical Rule Curb the Practice of

Subpoenaing the Attorneys of Grand Jury Tar-

gets?, 11 W. New Eng. L. Rev. 283 (1989)

Note, Attorney-Client Privilege and Right to

Counsel for the Party Under Investigation, 19

Wake Forest L. Rev. 487 (1983) -......

Note, Benefactor Defense Before the Grand Jury:

The Legal Advice and Incrimination Theories

of the Attorney-Client Privilege, 6 Cardozo L.

I i a caemslonenaimnainenannnins

Page

TABLE OF AUTHORITIES—Continued

Note, Grand Jury Subpoenas of a Target's At-

torney: The Need for a Preliminary Showing,

20 Ga. L. Rev. 747 (1986)

Peirce & Colamarino, Defense Counsel as a Wit-

ness for the Prosecution: Curbing the Practice

of Issuing Grand Jury Subpoenas to Counsel for

Targets of Investigations, 36 Hastings L.J. 821

(1985)

Rudolf & Maher, Grand Jury Practice, 5 Crim.

Just. 22 (1990)

Rudolf & Maher, The Attorney Subpoena: You Are

Hereby Commanded to Betray Your Client, 1

Crim. Just. 14 (1986)

Rudovsky, The Right to Counsel Under Attack,

136 U. Pa. L. Rev. 1965 (1988)

Sheridan, Grand Jury Subpoenas to Criminal De-

fense Attorneys: Massachusetts Restrains the

Federal Prosecutor Through An “Ethical” Rule,

2 Geo. J. Legal Ethics 485 (1988)

Stern & Hoffman, Privileged Informers: The At-

torney 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 Attor-

neys: A Proposal for Reform, 23 Am. Crim. L.

Rev. 95 (1985) ama

Zacharias, A Critical Look at Rules Governing

Grand Jury Subpoenas of Attorneys, 76 Minn.

L. Rev. 917 (1992)

Zimmerman & Lavine, Attorney Subpoenas Imperil

Choice of Counsel, 26 Trial 51 (April 1990)

Page

—'

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

THE DISCIPLINARY BOARD OF

THE

SUPREME COURT OF PENNSYLVANIA,

Pe tition r,

MICHAEL M. BAYLSON,. JAMES J. WEST, and

THOMAS W. CORBETT. JR..

Re spond nts.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

JURISDICTION

The judgment of the Court of Appeals was entered on

September 16, 1992.

Jurisdiction in

this Court is established by 28 U.S.C.

< 1254(1)

OPINIONS BELOW

The opinion of the Court of Appeals, reported at 975

F.2d 102, is set forth at A. la-20a,' as amended on Sep-

tember 21, 1992. The opinion of the District Court,

reported at 764 F. Supp. 328, is set forth at A. 23a-62a.

1 References to “A.” are to the appendix to this petition.

CONSTITUTIONAL PROVISIONS INVOLVED

Article VI, Clause 2.

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treat-

ies made, or which shall be made, under the Authority

of the United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

STATUTORY AND OTHER PROVISIONS INVOLVED

28 U.S.C. § 2071. Rule-making power generally

(a) The Supreme Court and all courts established

by Act of Congress may from time to time prescribe rules

for the conduct of their business. Such rules shall be

consistent with Acts of Congress and rules of practice

and procedure prescribed under section 2072 of this title.

(b) Any rule prescribed by a court, other than the

Supreme Court, under subsection (a) shall be prescribed

only after giving appropriate public notice and an oppor-

tunity for comment. Such rule shall take effect upon the

date specified by the prescribing court and shall have

such effect on pending proceedings as the prescribing court

may order.

Federal Rule of Criminal Procedure 57 and Federal Rule of

Civil Procedure 83. Rules by District Courts

Each district court by action of a majority of the judges

thereof may from time to time, after giving appropriate

public notice and an opportunity to comment, make and

amend rules governing its practice not inconsistent with

these rules. ... In all cases not provided for by rule,

the district judges and magistrates may regulate their

practice in any manner not inconsistent with these rules

or those of the district in which they act.

Federal Rule of Criminal Procedure 17. Subpoena.

(a) For Attendance of Witnesses; Form; Issuance.

A subpoena shall be issued by the clerk under the seal

of the court. It shall state the name of the court and the

title, if any, of the proceeding, and shall command each

person to whom it is directed to attend and give testimony

at the time and place specified therein. The clerk shall

issue a subpoena, signed and sealed but otherwise in

blank to a party requesting it, who shall fill in the blanks

before it is served. A subpoena shall be issued by a

United States magistrate in a proceeding before that

magistrate, but it need not be under the seal of the court.

Objects.

A subpoena may also command the person to whom it

is directed to produce the books, papers, documents or

other objects designated therein. The court on motion

made promptly may quash or modify the subpoena if

compliance would be unreasonable or oppressive. The

court may direct that books, papers, documents or objects

designated in the subpoena be produced before the court

at a time prior to the trial or prior to the time when

they are to be offered in evidence and may upon their

production permit the books, papers, documents or objects

or portions thereof to be inspected by the parties and their

attorneys.

Eastern District of Pennsylvania Local Rule 14(IV)(B)

The Rules of Professional Conduct adopted by this

Court are the Rules of Professional Conduct adopted by

the Supreme Court of Pennsylvania, as amended from

time to time by that state court, except as otherwise pro-

vided by specific Rule of this Court after consideration

of comments by representatives of bar associations within

the state....

Middle District of Pennsylvania Local Rule 304.2

The Rules of Professional Conduct adopted by this

Court are the Rules of Professional Conduct adopted by

the Supreme Court of Pennsylvania . . . as amended

from time to time by that court, unless specifically ex-

cepted in this court’s rules.

Western District of Pennsylvania Local Rule 22(1)(B)

The Rules of Professional Conduct adopted by this

Court are the Rules of Professional Conduct adopted by

the Supreme Court of Pennsylvania, as amended from

time to time by the state court, except . . . as otherwise

provided by specific order of this court.

Rule 3.10 of the Rules of Professional Conduct of the Su-

preme Court of Pennsylvania

A public prosecutor or other governmental lawyer

shall not, without prior judicial approval, subpoena an

attorney to appear before a grand jury or other tribunal

investigating criminal activity in circumstances where

the prosecutor or other governmental lawyer seeks to

compel the attorney/witness to provide evidence concern-

ing a person who is or has been represented by the

attorney /witness.

STATEMENT OF THE CASE

A. Statement of Facts

This case involves Rule 3.10 of the Pennsylvania Rules

of Professional Conduct, which requires prosecutors to

obtain judicial approval before serving a subpoena upon

an attorney which seeks to compel the attorney to pro-

vide evidence about a present or former client. Pursuant

to Article V, Section 10(c) of the Constitution of the

Commonwealth of Pennsylvania,? the Pennsylvania Su-

2 Article V, Section 10(c) invests the Supreme Court of Pennsy]-

vania with “the power to prescribe general rules governing prac-

preme Court has promulgated the Pennsylvania Rules of

Professional Conduct to regulate the behavior of attor-

neys belonging to the Pennsylvania bar and established

petitioner, the Disciplinary Board of the Supreme Court

of Pennsylvania, to enforce those rules. See Pa. Rule of

Disciplinary Enforcement (“R.D.E.”) 205.°

In response to a growing concern within the Pennsyl-

vania bar about the ethical propriety of prosecutors serv-

ing grand jury subpoenas on attorneys to obtain evidence

against the attorneys’ clients, the Supreme Court of

Pennsylvania adopted Rule 3.10 of the Pennsylvania

Rules of Professional Conduct on November 7, 1988,

providing:

A public prosecutor or other governmental lawyer

shall not, without prior judicial approval, subpoena

an attorney to appear before a grand jury or other

tribunal investigating criminal activity in circum-

stances where the prosecutor or other governmental

lawyer seeks to compel the attorney witness to pro-

vide evidence concerning a person who is or has been

represented by the attorney/witness.’

tice, procedure and the conduct of all courts .. . and for admission

to the bar and to practice law, and the administration of all courts

and supervision of all officers of the judicial branch... .”

3 The Disciplinary Board is a fourteen member body appointed by

the Pennsylvania Supreme Court and charged with investigating

and reviewing allegations of attorney misconduct. See Pa. R.D.E.

102. 201, 205, 208. The Board is empowered to administer private

reprimands to attorneys for inappropriate behavior; however,

formal charges of attorney misconduct that might result in dis-

barment, suspension, public censure, or probation are forwarded by

the Disciplinary Board to the Pennsylvania Supreme Court for its

de novo review and final disposition. See Pa. R.D.E. 204, 208.

4 The Comment to Rule 3.10 states:

It is intended that the required “prior judicial approval” will

normally be withheld unless, after a hearing conducted with

due regard for the need for appropriate secrecy, the court finds

(1) the information sought is not protected from disclosure by

Rule 1.6, the attorney-client privilege or the work product doc-

trine: (2) the evidence sought is relevant to the proceeding ;

Before Rule 3.10 was passed, the federal district courts

for the Eastern, Middle, and Western districts of Pennsy]-

vania had each promulgated local rules adopting the

Rules of Professional Conduct of the Supreme Court of

Pennsylvania, as amended from time to time, as the

ethical rules governing attorneys admitted to practice

before those courts. See E.D. Pa. Local Rule 14(IV) (B);

M.D. Pa. Local Rule 304.2; W.D. Pa. Local Rule 22

(I) (B). Accordingly, when the Supreme Court of Penn-

sylvania adopted Rule 3.10 in 1988, it was automatically

incorporated into the ethical rules governing attorneys

practicing before the Pennsylvania federal district

courts.°®

On July 19, 1989, respondents Michael M. Baylson,

James J. West, and Thomas W. Corbett, Jr., (see Note

supra), who are members of the Pennsylvania bar and

the United States Attorneys for the Eastern, Middle, and

Western Districts of Pennsylvania respectively, brought

suit in the United States District Court for the Eastern

District of Pennsylvania® against petitioner, the Dis-

(3) compliance with the subpoena would not be unreasonable

or oppressive; (4) the purpose of the subpoena is not primarily

to harass the attorney/witness or his or her client; and (5

there is no other feasible alternative to obtain the information

sought.

The “Scope” portion of the Pennsylvania Rules of Professional Con-

duct provides: “The Comment accompanying each Rule explains

and illustrates the meaning and purpose of the Rule. ... The

comments are intended as guides to interpretation, but the text of

each Rule is authoritative.”

5 After Rule 3.10 was enacted, the three United States Attorneys

in Pennsylvania (respondents here) urged their respective federal

district courts to except Rule 3.10 from their local rules, and each

of the three courts endeavored te do so. In amending their local

rules, however, all three courts failed to use an advisory committee

or to give the public prior notice and an opportunity to comment,

as required by 28 U.S.C. § 2071, and the district court below ac-

cordingly held the excepting amendments to be invalid. Respond-

ents did not appeal this ruling. A. 4a.

* Jurisdiction in the district court was based on 28 U.S.C. § 1331.

ciplinary Board of the Supreme Court of Pennsylvania,

to prevent petitioner from enforcing Rule 3.10 against

them or against other federal prosecutors practicing in

the federal district courts in Pennsylvania.’

B. The Opinion of the District Court

Following limited discovery,” petitioner and the United

States Attorneys filed cross-motions for summary judg-

ment. By Order dated April 22, 1991, the district court

granted declaratory relief in favor of the United States

Attorneys, ruling that petitioner could not enforce tule

3.10 against federal prosecutors.

The court reasoned that other federal district court

local rules “implicitly reject(ed|” the inclusion of vule

210 into the local rules because: (1) Rule 3.10 is not

really an ethical standard but “a rule of criminal proce-

dure that contains evidentiary standards for judicial re-

view?” (2) it conflicts with the Federal Rules of Crim-

inal Procedure; and (3) it is “incompatible with the

historic powers and function of the grand jury.” A. 36a-

46a. 56a-60a. The court also held that enforcement of

Rule 3.10 against federal prosecutors as a restriction of

state law would contravene the Supremacy Clause of the

United States Constitution. A. 61a-62Za.

7The United States Attorneys initially filed their lawsuit not

only against the Disciplinary Board, but also against each of the

individual members of the Board. These individuals are listed in

the Court of Appeals’ caption of the case. However, all of the in

dividuals were dismissed as defendants at the outset of the case

by stipulation of the parties.

8 Petitioner sought discovery by way of depositions, interroga

tories, and requests for production of documents In order to explore,

inter alia. whether Rule 3.10 would in any way delay or otherwiss

interfere with grand jury proceedings. The district court pre

cluded most discovery, however, except on the issue of the Pennsy]

vania district courts’ purported exception of Rule 3.10 from their

local rules. See Note 5, supra

C. The Opinion of the Court of Appeals

The United States Court of Appeals for the Third Cir-

cuit affirmed the judgment below,’ although on grounds

different from those of the district court.

The Court of Appeals held that the adoption of Rule

4.10 was not within the local rule-making authority of

the district courts for two reasons. It observed first that

Rule 57, Fed. R. Crim. P., empowered federal district

courts to promulgate local rules governing their practice

“not inconsistent with these rules [the Federal Rules of

Criminal Procedure],” and it concluded that adoption of

tule 3.10 was inconsistent with Rule 17, which governed

the issuance of subpoenas. Although it recognized that

“'t|here may not be a literal conflict between Rule 3.10

and Fed. R. Crim. P. 17,” the court found that Rule

4.10 was invalid under Rule 17 by negative implication:

“Rule 3.10 is inconsistent with Fed. R. Crim. P. 17 be

cause nothing in Rule 17 grants to the district court

the power to screen grand jury subpoenas prior to

service.” A. 10a-1la.

In addition, the Court of Appeals found a limitation on

the district courts’ local rule-making authority in a state-

ment in the Advisory Committee Notes to Federal Rule

of Criminal Procedure 57:

While the rules are intended to constitute a compre-

hensive procedural code for criminal cases in the

Federal Courts, nevertheless it seemed best not to

endeavor to prescribe a uniform practice as to some

matters of detail, but to leave the individual courts

free to regulate them, either by local rules or by

usage. Among such matters are the mode of im-

paneling a jury, the manner and order of inter-

® Amicus curiae briefs in support of petitioner were filed in the

Court of Appeals by the American Bar Association, the Pennsy!-

vania Bar Association, the Philadelphia Bar Association, the Asso-

ciation of Trial Lawyers of America, the Pennsylvania Trial Law-

yers Association, the Massachusetts Bar Association, and the Na

tional Network for the Right to Ccunsel.

posing challenges to jurors, the manner of selecting

the foreman of a trial jury, the matter of sealed

verdicts. the order of counsel’s arguments to the

jury, and other similar details. (Emphasis added).

The Court of Appeals held that this comment in the

Advisory Committee Notes restricted the local rule-

making powers of the district courts to “matters of de-

tail.’ The court deemed the ethical requirement that

prosecutors submit grand jury subpoenas for judicial ap-

proval prior to serving them on attorneys not to be a

“matter of detail”, and therefore held the adoption of

Rule 3.10 to be invalid under Rule 57. A. 1lla-12Za.

The Court of Appeals next examined whether the Dis-

ciplinary Board could enforce Rule 3.10 as a matter of

state law, ex proprio vigore, against federal prosecutors

who were also members of the Pennsylvania bar. The

court reiterated that Rule 3.10 was “incompatible” with

Rule 17, Fed. R. Crim. P. Accordingly, the court con-

cluded that the Supremacy Clause barred the Board from

enforcing the rule against federal prosecutors. A. 16a-

19a.

REASONS FOR GRANTING THE WRIT

The decision below merits review by this Court because

it destroys a serious and measured attempt by a State to

deal with a complicated and serious problem: the unfet-

tered and increasing reliance by prosecutors upon sub-

poenas issued to attorneys for evidence against the at-

torneys’ clients. Such subpoenas cause a number of actual

or potential harms. They drive a wedge of fear and

suspicion into a relationship properly based upon trust

and complete candor. They chill the client’s willingness

to reveal information when ful! communication about all

relevant facts is essential if the lawyer is to perform

properly his or her duties.” They create a conflict of

10 This Court has recognized that the attorney-client privilege

rests on a client’s ability to trust and make full disclosure to coun

sel: “The attorney client-privilege is the oldest of the privileges for

interest between attorney and client, imposing upon the

lawyer a new and separate burden of protecting the law-

yer’s own interests and creating in the client anxiety and

fear that the lawyer’s main concern will now be self-

protection and that the lawyer’s zeal, courage, independ-

ence, and effectiveness will be diminished. Finally, they

erode the balance of the adversary system by affording

prosecutors but not other attorneys a weapon that may

be wielded arbitrarily and at will to harass, intimidate,

and even disqualify opposing counsel.

Like the American Bar Association and a number of

other States,’’ the Commonwealth of Pennsylvania recog-

nized the potential threat to the attorney-client relation-

ship posed by such subpoenas. But the Commonwealth

also acknowledged that sometimes legitimate law enforce-

ment needs would justify such subpoenas, and Rule of

Professional Conduct 3.10 provides a sensitive mechanism

for balancing such needs against the necessity of protect-

ing the delicate relationship of attorney to client. The

tule does not prohibit such subpoenas, but requires that

they be screened by a neutral judicial decision maker.

The Court of Appeals summarily rejected Pennsy]l-

vania’s innovative attempt to deal with a thorny problem,

and the decision merits review at this time in light of a

confidential communications known to the common law. Its purposs

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 depends upon the

lawyer’s being fully informed by the client.” Upjohn Co. v. United

States, 449 U.S. 383 (1981) (citations omitted)

The Supreme Judicial Court of Massachusetts had previously

enacted a similar ethical rule requiring prior judicial approval

before a prosecutor serves a subpoena on an attorney to compel

the attorney to provide evidence concerning a client. See Mass.

SI.C.R. 3:08 (PF 15). The American Bar Association and several

State bar associations have since adopted comparable ethical rule

See ABA Model Rule of Professional Conduct 3.8(f): Va. S. Ct. R.

$A:12 & Va. DR 8-102(A)(5); Tenn. Ct. R. DR 7-103; R.I. Rule

of Professional Conduct 3.8(f).

——— ne

conflicting rule governing federal prosecutors in Massa-

chusetts and of other State ethical rules similar to the

Commonwealth’s. We respectfully submit that the Court

should also review the decision because the Court of

Appeals’ definition of the local rule-making authority of

the district courts is unprecedentedly restrictive and

would have the effect of invalidating a host of local pro-

cedural and ethical rules. In addition, the result reached

by the court below is strikingly insensitive to a State’s

legitimate authority to establish ethical standards for

members of its bar. The Court of Appeals’ Supremacy

Clause analysis is significantly flawed by the court’s fail-

ure to acknowledge and accommodate the weighty and

often-recognized State interest which Rule 3.10 seeks to

effectuate.

I. THE COURT OF APPEALS’ DECISION IMPOSES

UNPRECEDENTED AND UNWARRANTED RE-

STRICTIONS ON THE RULE-MAKING AUTHOR-

ITY OF FEDERAL DISTRICT COURTS WHICH

WOULD INVALIDATE A HOST OF LOCAL RULES.

This Court has emphasized that the grant of local

rulemaking authority in Rule 57, Fed. R. Crim. P., and

tule 83, Fed. R. Civ. P.,’* must be generously construed,

12 Rule 57, Fed. R. Crim. P., and Rule 83, Fed. R. Civ P., pro

vide:

Each district court by action of a majority of the judges

thereof may from time to time, after gi\ ing appropriate public

notice and an opportunity to comment, make and amend rules

governing its practice not inconsistent with these rules.

These rules were in turn promulgated pursuant to 28 U.S.C. 5 2071,

which provides:

The Supreme Court and all courts established by Act of Con-

yress may from time to time prescribe rules for the conduct of

their business. Such rules shall be consistent with Act of

Congress and rules of practice and procedure pre cribed under

section 2072 of this title

The Historical Note to § 2071 states that in enacting this legisla

tion, Congress recognized “the broad rule-making power of the

courts.”

so that federal district courts have adequate authority to

deal with the local exigencies of judicial administration.

Indeed, in a recent decision concerning the scope of Rule

83, the Court pointed out that “courts traditionally have

exercised considerable authority ‘to manage their own

affairs so as to achieve the orderly and expeditious dis-

position of cases.’” Hoffman-La Roche Inc. v. Sperling,

493 U.S. 165, 172-73 (1989) (emphasis added).™

A. The Court of Appeals’ Method for Adjudicating a

Local Rule “Inconsistent” With a Federal Rule of

Procedure and Its “Matter of Detail” Test Is Not

Grounded In Precedent and Is Overly Restrictive.

However, in striking down the Pennsylvania federal

district courts’ adoption of Pennsylvania Supreme Court

Rule of Professional Conduct 3.10, the Court of Appeais

for the Third Circuit fashioned an unprecedented two-

part limitation on the power of district courts to promul-

gate local rules. The court held that such rules must

“merely fill in a matter of detail left open by the federal

rules” and concern no “more than just the regulation of

court or docket management.” A. 12a.

First, the court ruled that the test of whether a local

rule is “not inconsistent with” another federal rules of

procedure is not whether there is a “literal conflict’,

A. 10a, between the two rules but rather whether a fed-

eral rule expressly authorizes the local rule: “Rule 3.10

is inconsistent with Fed. R. Crim. P. 17 [which regulates

subpoena practice] because nothing in Rule 17 grants to

the district court what Rule 3.10 purports to do by means

of a local rule...” A. 10a-lla.* This is a definition of

13 See Eash v. Riggins Trucking Inc., 757 F.2d 557, 569 (3d Cir.

1989) (discussing district courts’ role in employing “local rules in

achieving procedural change’’).

14 There is no direct conflict between the ethical requirement im-

posed by Rule 3.10 and Fed. R. Crim. P. 17. Rule 17 is silent con-

cerning the persons to whom subpoenas may be directed and makes

no mention of grand juries. Indeed, the Court of Appeals recognized

that “there may not be a literal confiict between Rule 3.10 and Fed.

R. Crim. P. 17.” A. 10a.

“inconsistency” which is excessively broad, for it looks

not to whether there is an actual conflict with an existing

rule but to whether the federal rules affirmatively con-

template the promulgation of that local rule.

This Court has frequently approved a more generous

construction of Rule 57 and its verbatim civil counter-

part, Rule 83, Fed. R. Civ. P. In Colgrove v. Battin,

113 U.S. 149 (1973), for example, this Court upheld

against Seventh Amendment challenge a local rule which

limited the size of civil juries to six persons. Rather than

examining the Federal Rules of Civil Procedure from the

perspective of what they expressly authorized a district

court to do, the Court emphasized that nothing in the

Rules “‘prevent[ed promulgation of local] court rules

which provide for civil juries of reduced size.’”’ Jd. at 164

(quoting Cooley v. Strickland Transportation Co., 409

F.2d 779, 784 (5th Cir. 1972) ). The Court declined to

“nullify innovative changes” or to “deny the judiciary

the ‘flexibility and capacity for growth and adaptation

[which] is the peculiar boast and excellence of the com-

mon law.” Id. at 162 (quoting Hurtado v. Califorma,

110 U.S. 516, 530 (1884)). Accordingly, the local rule

was held not inconsistent with the federal rule of proce-

dure, despite the fact that it was not expressly authorized

by that rule.

The second part of the Court of Appeals’ test adds yet

another restriction, for even if a local rule appears to

be expressly authorized, it must also be “narrow in scope

and must deal with ‘matters of detail’ not covered by the

Federal] Rules.” A. 8a-9a. But neither Federal Rule of

Criminal Procedure 57 nor its identical analogue in the

Federal Rules of Civil Procedure, Rule 83, contains any

language limiting the rule-making authority of the dis-

trict courts to “matters of detail.” See Fed. R. Crim.

P. 57: Fed. R. Civ. P. 83. Likewise, no such restriction

is found in the Advisory Committee Notes to Federal

-ule of Civil Procedure 83. The “matter of detail” lan-

guage is located solely in the Advisory Committee Notes

to Criminal Rule 57. However, the Court of Appeals in-

tl A ALLL LLL A nT aati icine

terpreted it not as a simple description of the areas sub-

ject to district court regulation, but as a stricture on the

district courts’ rule-making authority.

This Court has made plain that language from the

Advisory Committee Notes is not meant to be en-

grafted onto the rules of procedure. In Curtiss-Wright

Corp. v. General Electric Co., 446 U.S. 1, 9 (1980), the

Court rejected the Court of Appeals’ adoption of a state-

ment in the Advisory Committee Notes to Rule 54, Fed.

R. Civ. P., as establishing the appropriate standard for

appellate review of Rule 54(b) certifications of final

(albeit partial) judgment. The Court of Appeals had

ruled that the district court had abused its discretion by

granting Rule 54(b) certification since an Advisory Com-

mittee comment to that Rule had stated that certification

was a discretionary power to be exercised only “in the

infrequent harsh case.” This Court reversed, pointing

out that the phrase “ ‘infrequent harsh case’ in isolation

is neither workable nor entirely reliable as a benchmark

for appellate review. There is no indication it was ever

intended by the drafters [of the Rule] to function as

such.” /d. at 10. Similarly, in this case, transporting the

“matter of detail” language from the Commentary to the

text of Rule 57, as the court below did, implants into the

Rule a restrictive limitation never intended by the drafts-

men.

B. The Court of Appeals’ Decision Endangers a Myriad

of Local Rules and Ignores the Well-Established

Authority of Federal District Courts To Supervise

the Conduct of Attorneys Within Their Jurisdic-

tions.

The Court of Appeals’ niggardly and cramped defini-

tion of federal district court rule-making authority would

invalidate a large number of local federal district court

rules, ranging from the mundane to the fundamental, and

including procedural as well as ethical rules.

1. Numerous Non-Ethical Local Rules Are Subject

to Invalidation Under the Court of Appeals’

Test.

Ethical rules such as Pennsylvania Rule of Professional

Conduct 3.10 are not the only local rules subject to in-

validation under the Court of Appeals’ “affirmatively

authorized” and “matter of detail” tests. As common a

local rule as the “meet and confer” rule would be invalid

under the Third Circuit’s decision. “Meet and confer”

rules have been adopted by district courts nationwide in

an effort to curb discovery abuses and streamline the

civil litigation process."* Much like Rule 3.10, these rules

impose on the use of a procedural device a restriction

not specifically authorized by the federal rules. ‘Meet

and confer” rules typically condition the filing of a motion

to compel discovery (governed by Federal Rule of Civil

Procedure 37(a)(2)) on a certification by counsel filing

the motion that he or she has negotiated in gocd faith

with opposing counsel to attempt to resolve the discovery

dispute. Local rules imposing these conditions would fail

both parts of the Third Circuit test. Requiring an at-

torney to confer (outside of court) with opposing counsel

fails the “matter of detail” test because it imposes a sig-

nificant obligation upon counsel, and it fails the Third

Cireuit’s “inconsistency” test because such a rule is not

affirmatively authorized by the applicable federal rule of

procedure, Rule 37(a) (2), Fed. R. Civ. P.

In addition, other local rules which impose procedural

demands on litigants not expressly contemplated by the

federal rules of procedure will be subject to invalidation

under the Court of Appeals’ analysis. For example, a

number of federal district courts require by local rule

that a party moving for summary judgment submit with

that motion a statement of material facts as to which

1S See, e.g., D. Alaska Local Rule 5(E); D. Conn. Local Rul

9(d)(4): D. Kan. Local Rule 210(j) ; N.D. & S.D. Miss. Local Rul

6(c): D. N.M. Local Rule 37; D. Wy. Local Rule 207(o).

there is no genuine issue."© Because such a pleading is

not authorized by Federal Rule of Civil Procedure 56

governing motions for summary judgment, however, the

Court of Appeals’ test demands that local rules requiring

the statement be stricken as “inconsistent”? with Rule 56.

Also susceptible to invalidation under the Court of

Appeals’ analysis are district court “continuing repre-

sentation” rules that require an attorney to obtain court

approval! before withdrawing from representation of a

client." Like Rule 3.10, a “continuing representation”

rule imposes a procedural requirement on counsel to seek

court approval before pursuing an otherwise lawful course

of conduct. It would be difficult to dismiss a “continuing

representation” rule, which prevents counsel from prej-

udicing clients by withdrawing from representation at

an inopportune point during litigation, as addressing only

a “matter of detail.” '

2. The Majority of Ethical Local Rules Are Sub-

ject to Invalidation Under the Court of Appeals’

Test.

The Court of Appeals’ decision will have its most dra-

matic impact on the district courts’ ability to promulgate

rules of ethical conduct. Few of the ethical rules adopted

by federal district courts can survive the Court of Ap-

16 See, e.g., C.D. Cal. Local Rule 7.14.2; D.C. Local Rule 108(h);

S.D. Ga. Local Rule 6.6; D. Idaho Local Rule 56.1(a); M.D. Tenn.

Local Rule 8(b)(7)(b); E.D. Wis. Local Rule 6.05(a)(1).

17 See, e.g., N.D. Ala. Local Rule 83.1(e); C.D. Cal. Local Rule

2.8.2.1: S.D. Fla. Local Rule 16(D)(3); N.D. Ill. Local Rule 3.15;

N.D. Tex. Local Rule 13.5.

18 Likewise, local rules which require counsel to obtain court

approval prior to interrogating jurors after a case has concluded

are unlikely to survive scrutiny under a “matter of detail” analysis.

Whether counsel contacts and interviews jurors after trial cannot

be fairly described as a matter of “court administration.” See, e.g.,

E.D. & W.D. Ark. Local Rule 25; D.C. Local Rule 115(b); S.D. Ga.

Local Rule IV(8); N.D. Ind. Local Rule 44; E.D. Wash. Local Rule

47(f); N.D. W.Va. Local Rule 1.19; E.D. Wis. Local Rule 8.07.

peals’ analysis. Yet as early as Ex parte Burr, 23 U.S.

(9 Wheat.) 529 (1824), Chief Justice Marshall recog-

nized the authority of federal district courts to regul:

the conduct of attorneys:

ite

|I|t is extremely desirable that the respectability of

the bar should be maintained, and that its harmony

with the bench should be preserved. For these objects,

some controlling power, some discretion, ought to

reside in the court.

Id. at 580. The Chief Justice went on to describe the

power to regulate the conduct of attorneys as “incidental

to all courts, and ... necessary for the preservation of

decorum, and for the respectability of the profession.”

Id. at 5381.

More recently, in Frazier v. Heebe, 482 U.S. 641

(1987), this Court reaffirmed the authority of the federal

district courts to regulate the attorneys that practice

hefore them: “|{A] district court has discretion to adopt

local rules that are necessary to carry out the conduct

of its business.” Jd. at 645 (citations omitted).'® The

district courts’ discretion is not without limits, as Frazier

recognized, since local rules must be consistent with the

rules of procedure promulgated by this Court, with

acts of Congress, and with “ ‘the principles of right

and justice.” Frazier, 482 U.S. at 645 (quoting Jn re

Ruffalo, 390 U.S. 544, 554 (1968) (White, J., concur-

ring) ); see also id. at 645-46 & n.4. But the Court has

never suggested that the rule-making authority of district

courts is restricted to “matters of detail.”

The Federal Rules of Civil and Criminal Procedure

make no attempt to dictate what ethical rules should

govern practitioners in the federal courts. Federal dis-

trict courts commonly adopt by local rule the ethical

19 See also In re Snyder, 472 U.S. 634, 643 (1985) (“Courts have

long recognized an inherent authority to suspend or disbar law

yers.”); Theard v. United States, 354 U.S. 278 (1957)

EEE eae a ———

standards of the States in which they sit.*’ Few of these

ethical standards would pass muster under the Court of

Appeals’ two-part test, however. For example, Rule 3.3

(a)(4) of the ABA Model Rule of Professional Con-

duct directs that “|a] lawyer shall not knowingly offer

evidence that the lawyer knows to be false.’”’ Model Rule

of Professional Conduct 3.3(a) (4) (1983).*" This pro-

hibition against offering perjured testimony can hardly

addressing

be characterized as a “matter of detail

“court administration,” and it is certainly not expressly

authorized by any existing federal rule. All federal dis-

trict court local rules adopting Model Rule 3.3(a) (4)

would therefore be invalid.

Similarly, district court local rules adopting ABA

Model Rule of Professional Conduct 3.8(d) would be de-

fective under both the Court of Appeals’ “matter of

detail” test and its method for determining “inconsist-

ency”. Rule 3.8(d) dictates that a prosecutor shall:

make timely disclosure to the defense of all evidence

or information known to the prosecutor that tends

to negate the guilt of the accused or mitigates the

offense. .

This rule imposes an important procedural and ethical

obligation on prosecutors in order to assure the fairness

of criminal trials. It obviously cannot be dismissed as a

20 See, e.g., E.D. Pa. Local Rule 14(IV)(B): M.D. Pa. Local Rule

304.2; W.D. Pa. Local Rule 22(1)(B); N.D. Ala. Local Rule 83.1(f)

D. Del. Local Rule 83.6(d) (2); D. Idaho Local Rule 83.6(a) ; D. Kan.

Local Rule 407(a); D. Or. Local Rule 110-3; E.D. Tenn. Local Rule

83.6

*1 The corollary to Rule 3.3(a)(4) in the Model Code of Pro-

fessional Responsibility is DR 7-102(A)(4) which counsels: “In

his representation of a client, a lawyer shall not knowingly use

perjured testimony or false evidence.” Model Code of Professional

Responsibility DR 7-102(A)(4) (1980). With the exception of

California, every state in the country substantially follows either

the Model Rules, the Model Code, or some combination of the two

See ABA/BNA Lawyers’ Manual on Professional Conduct, 1:3-4

(July 1992).

eth See eS

mere “matter of detail.’’ Likewise, the disclosure man-

dated by Rule 3.8(d) is, under the Third Circuit’s ap-

proach, “inconsistent” with a federal procedural rule,

Federal Rule of Criminal Procedure 16 governing dis-

covery, because it is not expressly authorized by that rule.

It is difficult to imagine what ethical rules would survive

the Court of Appeals’ two-part test.~

Il. THE COURT OF APPEALS’ SUPREMACY CLAUSE

ANALYSIS IS INSENSITIVE TO THE IMPORTANT

STATE INTEREST IN REGULATING THE CON-

DUCT OF ATTORNEYS.

States have long played the leading role in the regu-

lation of the conduct of attorneys licensed to practice

within their jurisdictions, whether the attorneys were

federal prosecutors, state public defenders, or private

practitioners. Indeed, the Court of Appeals below ob-

served that “Pennsylvania does have an important inter-

est in regulating the conduct of attorneys licensed to

practice in the state.” A. 18a-19a. The Court of Ap-

peals’ ostensible regard for the State interest in over-

seeing attorney conduct is, however, a mirage due to its

mechanical and categorical Supremacy Clause analysis.

22 The following ethical rules are among those threatened by

one or both parts of the Third Circuit’s test: rules requiring an

attorney to keep the client reasonably informed about the status of

a matter (Model Rule of Professional Conduct 1.4 (1983)); rules

regulating the reasonableness of fees (Model Rule 1.5) ; rules direct-

ing an attorney not to reveal clients’ confidences (Model Rule 1.6

rules regarding conflicts of interest (Model Rules 1.7-1.9); rules

regulating the safekeeping of the property of clients (Model Rule

1.15): rules relating to an attorney acting as an intermediary

between clients (Model Rule 2.2); rules directing that an attorney

not bring frivolous claims (Model Rule 3.1); rules requiring that

an attorney make reasonable efforts to expedite litigation (Model

Rule 3.2): rules regarding candor toward the tribunal, including

the requirements that an attorney disclose adverse controlling au-

thority and disclose adverse material facts in an ex parte proceed-

ing (Model Rule 3.3); rules relating to trial publicity (Model Rule

3.6); rules prohibiting an attorney from communicating with a

person represented by counsel (Model Rule 4.2); and rules regulat-

ing advertising and the solicitation of clients (Model Rules 7.1-7.5).

The Court of Appeals concluded that Rule 3.10 could

not be enforced against federal prosecutors as a matter

of State law if it “actually conflicts with or is incompat-

ible with federal law.” A. 17a (emphasis added). But the

court’s extremely broad “incompatibility” test was essen-

tially the same as its two-part test for determining the

validity of a local federal district court rule. The court

held that Rule 3.10 violated the Supremacy Clause both

because it was “inconsistent” with Rule 17, Fed. R.

Crim. P., (because not expressly authorized by that

Rule) and because the requirement of pre-service judicial

review was not “contemplated by the Federal Rules.”

A. 19a.

Reading such a broad interpretation of ‘incompatibil-

ity” into the Supremacy Clause is inappropriate, espe-

cially where, as here, federal law has not completely pre-

empted the field at issue but instead has acknowledged

the ‘compelling’? State interest in regulating the conduct

at issue. This Court has repeatedly recognized the States’

critical interest in regulating attorney behavior. In Leis

v. Flynt, 489 U.S. 438 (1979), the Court stated:

Since the founding of the Republic, the licensing and

regulation of lawyers has been left exclusively to the

States and the District of Columbia within their

respective jurisdictions. The States prescribe the

qualifications for admission to practice and the stand-

ards of professional conduct. They are also responsi-

ble for the discipline of lawyers.

Id. at 442. Similarly, in Goldfarb v. Virginia State Bar,

421 U.S. 773 (1975), the Court emphasized that the

States have “a compelling interest in the practice of

professions within their boundaries,” and that as part

of their authority to protect the public they have “broad

power to establish standards for licensing practitioners

and regulating the practice of professions.” Jd. at 792.

See also Middlesex Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 428, 434 (1982): Ohralik v. Ohio State

*3“The State of New Jersey has an extremely important interest

in maintaining and assuring the professional conduct of the attor-

Bar Ass’n, 436 U.S. 447, 460 (1978); Cohen v. Hurley,

366 U.S. 117, 123-24 (1961). Additionally, the Court

has stressed that “{t]he State’s interest in the profes-

sional conduct of attorneys involved in the administra-

tion of criminal justice is of special importance.” Mid-

dlesex, 457 U.S. at 484. Many traditional ethical rules

impose obligations upon attorneys vis-a-vis one another

within the adversary system, and many enforce proce-

dural obligations (e.g., the obligation of prosecutors to

disclose exculpatory evidence) that have far greater sub-

stantive consequences than those of Rule 3.10.

Because attorney conduct has been traditionally reg-

ulated by the States, there is a presumption here

against finding federal pre-emption of State law. The

Court in California v. ARC America Corp., 490 U.S. 93

(1989), stated that “[w]hen Congress legislates in a

field traditionally occupied by the States, ‘we start with

the assumption that the historic police powers of the

States were not to be superseded by the Federal Act un-

less that was the clear and manifest purpose of Con-

gress.” Id. at 101 (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)); see also Hillsborough

County v. Automated Medical Labs., Inc., 471 U.S. 707,

715-16 (1985).% Rather than respecting this presump-

tion and attempting to reconcile the State and federal

interests at issue, the Court of Appeals held )that since

neys it licenses. States traditionally have exercised extensive con-

trol over the professional conduct of attorneys.”’ Middlesex, 457

U.S. at 434.

% The reliance of the court below on this Court’s decision

Sperry v. Florida, 373 U.S. 379 (1963 is wholly misplaced. In

that case, a federal statute, 35 U.S.C. $31, affirmatively prescribed

that non-lawyers could be licensed to practice before the United

States Patent Office. When the State of Florida ruled that such

work constituted the “practice of law’’ and could accordingly only

be performed by lawyers, this Court held that in view of the federal

statute’s “unqualified authorization” of non-attorney practitioners,

the Supremacy Clause prevented enforcement of the State un-

authorized practice rules. The case thus involved a flat conflict

State and federal law.

Rule 17, Fed. R. Crim. P., did no expressly authorize

judicial screening of grand jury subpoenas, Rule 3.10

was “inconsistent” with Rule 17. Just as adoption of

such an expansive view of “inconsistency” will result in

the invalidation of numerous ethical rules adopted by

federal courts, see supra at section I.B., so too will it

prevent the enforcement of State ethical rules against

federal prosecutors as a matter of State law.”

A ruling that the Supremacy Clause bars enforcement

of certain State ethical rules against federal prosecutors

is of particular importance because a number of fed-

eral district courts have foregone adopting any rules of

professional conduct and instead rely directly on State

ethical codes to regulate attorney conduct. For example,

the federal district courts for the Northern and Southern

Districts of [owa have not adopted any ethical rules to

govern the members of their bars. Accordingly, the

ethical conduct of federal prosecutors in States such as

Iowa is restricted only by the rules of professional con-

duct of the various State bars of which those prosecutors

are members.

Contrary to the restrictive approach taken by the

Court of Appeals, the proper Supremacy Clause analysis

*5 The Department of Justice has occasionally taken the remark-

able position that its attorneys should be considered exempt from

ethical restrictions applicable to all other lawyers. Except for the

decision below, courts have unanimously rebuffed this contention.

See, e.g., United States v. Lopez, 765 F. Supp. 1433, 1445 (N.D.

Cal. 1991) (discussing Department of Jusitce policy, set forth in

a June 8, 1989 memorandum issued by Attorney General Richard

Thornburgh, which “seeks to exempt DOJ attorneys from com-

pliance with the ethical duties created by the rule [DR 7-104]’’).

The court rejected the government’s argument, stating that “the

Department and its attorneys must be held accountable to the same

court-adopted ethical rules that govern all other lawyers.” Jd. at

1450. See also United States v. Hammad, 858 F.2d 834 (2d Cir.

1988), cert. denied, 111 S. Ct. 192 (1990) (“ ‘DR 7-104(A)(1) may

be found to apply in criminal cases, .. . to government attorneys

[and] to non-attorney government law enforcement officers

when they act as the alter ego of government prosecutors.’”’) (quot-

ing United States v. Jamil, 707 F.2d 638, 645 (2d Cir. 1983)).

is not whether State law is “incompatible” with federal

law in the sense that it is not expressly authorized by

federal law. Rather, as this Court has recently reiter-

ated, the proper test is whether State law “actually con-

flicts with federal law, that is, when compliance with

both state and federal law is impossible, or when the state

law ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.” ARC America Corp., 490 U.S. at 100-01 (quot-

ing Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) (other

citations omitted). Here, the Court of Appeals gave

short shrift to the States’ traditional role in regulating

the ethical conduct of members of their bars, and made

no attempt to harmonize the significant federal and State

interests at issue.

III. THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THE FEDERAL RULE OF LAW GOVERN-

ING UNITED STATES PROSECUTORS IN THE

COMMONWEALTH OF MASSACHUSETTS AND

THREE OTHER STATES.

The decision of the court below, holding Pennsylvania

Rule 3.10 invalid both as a local federal district court

rule and as a State disciplinary rule when applied to

federal prosecutors, squarely conflicts with the law of at

least four other States and the federal law governing

prosecutors in the United States Attorney’s Office for the

District of Massachusetts, as established in United States

v. Klubock, 832 F.2d 664 (1st Cir. 1987) (en banc)

(affirming the decision of the district court by an equally

divided en bane court).

At issue in Klubock was the enforceability of a Massa-

chusetts rule similar to Pennsylvania’s Rule 3.10, Massa-

chusetts Supreme Judicial Court Prosecutoria! Function

Rule 15 (“PF 15”), which provides:

It is unprofessional conduct for a prosecutor to sub-

poena an attorney to a grand jury without prior

judicial approval in circumstances where the prose-

cutor seeks to compel the attorney/witness to provide

evidence concerning a person who is represented by

the attorney /witness.

The United States and a number of federal prosecutors,

who were also members of the Massachusetts bar, chal-

lenged the validity of PF 15, the district court upheld the

rule, United States v. Klubock, 639 F. Supp. 117 (D.

Mass. 1986), a divided panel of the United States Court

of Appeals for the First Circuit atfirmed, United States

v. Klubock, 832 F.2d 649 (1987; (amended opinion),

and an equally divided en banc court affirmed the district

court’s decision sustaining PF 15.”

The court below acknowledged that its decision was in

conflict with the appellate panel and district court deci-

sions in Klubock, stating that “|a]fter a careful examina-

tion of the various opinions in Klubock we find the dis-

senting opinion of Chief Judge Campbell to be convinc-

ing. Much like PF 15, Rule 3.10 is not ‘the sort of detail

that fits within the court’s local rule-making powers.’ ”

A. 16a (quoting United States v. Klubock, 832 F.2d 649

(Ist Cir. 1986) (vacated) (dissenting opinion) ).*

26 While the panel’s judgment was vacated and the panel’s opinion

withdrawn when rehearing en banc was granted, the Per Curiam

Opinion En Banc reproduced for publication, as amended, the origi-

nal panel opinion and dissent:

While the panel opinions no longer have standing on their own,

the members of the en banc court make reference to them in

the course of their opinions and hence they are issued to supple

ment the en banc opinions.

832 F.2d at 665.

27 The court below also cited a number of cases involving chal

lenges by individual lawyers or their clients to subpoenas issued to

the lawyers, including In re Grand Jury Subpoena Served Upon Doe,

781 F.2d 238 (2d Cir. 1986), cert. denied, 475 U.S. 1108 (1986),

In re Klein, 776 F.2d 628 (7th Cir. 1985), In re Grand Jury Matter,

926 F.2d 348 (4th Cir. 1991), In re Grand Jury Subpoena for At

torney Representing Criminal Defendant Reyes-Requena, 913 F.2d

1118 (10th Cir. 1990), cert. denied, 111 S. Ct. 1581 (1991), and

United States v. Perry, 857 F.2d 1346 (9th Cir. 1988), as rejecting

any requirement that the government show “need” before subpoena-

ing an attorney. See A. 13a n.2. None of those cases, however,

arose out of a formally promulgated State rule.

The vacated Klubock panel majority, on the other hand,

had held that “PF 15 is clearly a local rule which seeks

to control discipline within its bar membership and, thus,

[is] within the general rule-making power of district

courts.” 832 F.2d at 653. The panel had emphasized the

ethical hazards inherent in the service of grand jury sub-

poenas on attorneys: (1) that a “chilling wedge” is driven

between attorney and client as a result of the client’s sus-

picions “that his legitimate trust in his attorney may be

subject to betrayal,” id.; (2) that an “immediate conflict

of interests” is created between the attorney’s roles as ad-

voeate and witness, id.; (3) that there is a “diversion of

‘nterests and resources brought about by the conversion of

the attorney into a witness,” id.; (4) that the attorney

may be disqualified because “converted into a possible wit-

ness in a case against his client,” id. at 654; and (5) that

prosecutors may abuse the use of subpoenas in the ex-

changes “of counsel versus counsel in their adversarial

roles,” id. In sharp contrast to the approach of the

Third Circuit, the First Circuit panel concluded that

“silence in the Federal rules of procedure does not neces-

sarily mean that the courts are powerless to correct per-

ceived problems as they arise, either by decision, or by

local rule, where appropriate.” Jd. at 656. Because noth-

ing in Federal Rule 17 prohibited an ethical rule govern-

ing prosecutors’ service of subpoenas on attorneys, the

panel found no inconsistency between Rule 17 and PF 15.”

28 The panel also stressed the advantages of allowing experimenta

tion with new rules of procedure at the local level: ‘‘In the event

that national decision makers ultimately seek to resolve the problem,

the experience gained through local efforts can only make for more

informed federal rulemaking.” 832 F.2d at 655.

29 The Department of Justice did not seek certiorari in Klubock ;

however, its own statistics reveal that the Klubock decision has not

“stemmed the flood of subpoenas to lawyers.” tudolf & Maher,

Grand Jury Practice, 5 Crim. Just. 22, 24 ( 1990) (analyzing United

States Department of Justice statistics showing 50% increase 1n

subpoenas issued to attorneys between 1985 and 1989).

The conflict between the rules governing federal prose-

cutors in the Commonwealths of Pennsylvania and Massa-

chusetts is a significant one. Moreover, ethical rules simi-

lar to those of Massachusetts and Pennsylvania have been

adopted by the highest courts in Virginia, Tennessee, and

Rhode Island and presumptively govern the actions of

federal prosecutors there. See Va. 8S. Ct. R. 3A:12 & Va.

DR 8-102(A) (5); Tenn. Ct. R. DR 7-103; R.I. Rule of

Professional Conduct 3.8(f). And, on February 12, 1990,

the House of Delegates of the American Bar Association

amended Rule 3.8 of the Model Rules of Professional Con-

duct to require that prosecutors obtain advance judicial

approval of subpoenas issued to attorneys.”

The reason for the enactment of these ethical rules

is a widely shared perception that a routine practice of

haling defense lawyers before grand juries is highly

unfair because it unreasonably erodes the specially pro-

tected relationship between attorney and client.*! A num-

39 Model Rule 3.8(f) provides:

The prosecutor in a criminal case shall:

* * * %

(f) not subpoena a lawyer in a grand jury or other criminal

proceeding to present evidence about a past or present client

unless:

(1) the prosecutor reasonably believes:

(i) the information reasonably sought is not protected

from disclosure by an applicable privilege;

(ii) the evidence sought is essential to the successful

completion of an ongoing investigation or prosecution;

(iii) there is no other feasible alternative to obtain the

information; and

(2) the prosecutor obtains prior judicial approval after an

opportunity for an adversarial procee“ing.

31 Although it is true, as the court below observed, see A. 7a,

that this Court has held that a citizen does not have a Sixth

Amendment right to counsel prior to indictment by a grand jury

or the filing of formal criminal charges, Kirby v. Illinois, 406 U.S.

682 (1972), it is nevertheless the case that targets or subjects of

a grand jury are often represented by counsel. The State interests

ber of courts have expressed such concerns and have

refused to enforce particularly burdensome subpoenas to

lawyers.* In addition, federal prosecutors’ increasing

resort to attorney subpoenas has been the subject of much

debate and criticism among legal commentators.* In-

which rules such as Pennsylvania’s Rule 3.10 attempt to define and

protect are the ethical obligations of prosecutors with regard to

this existing attorney-client relationship between defense counsel

and a client. Legal rules of ethics often address relationships be-

tween adversarial lawyers in situations where a client would have

no constitutional right to have counsel appointed.

32 See In re Grand Jury Matters, 751 F.2d 13, 18 (1st Cir. 1984)

(“To call defense attorneys before the grand jury, in connection

with an investigation of the same activities for which their clients

were standing trial in state court, while the attorneys were prepar-

ing for this major felony trial, could be taken as a veiled threat,

with such potential for harm to the state defendants and the de-

fense bar as to require the government to show with some particu-

larity why the grand jury’s investigation required the execution of

the subpoenas at this particularly sensitive moment.’’); In re Spe

cial Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, 1010, vacated

as moot, 697 F.2d 112 (4th Cir. 1982) (“Where the attorney for

the target of an investigation is subpoenaed, . . . attorney-client

privilege considerations and sixth amendment interests arise auto

matically and a preliminary showing must be made before the at

torney can be forced to appear before the grand jury.”); Jn re

Grand Jury Subpoena (Legal Services Center), 615 F. Supp. 958

(D. Mass. 1985) (“To permit the subpoenas to stand would result

in the veritable destruction of the parties’ attorney-client relation-

ships. It would also pose a significant chilling effect on the ability

of attorneys ... to represent their clients zealously within the

bounds of the law.’’).

83 See, e.y., Bresler, Quashing Witness Subpoenas Without Ex-

plicit Authority From the Federal Rules of Criminal Procedure,

25 Crim. L. Bull. 315 (1989); Cramton & Udell, State Ethics Rules

and Federal Prosecutors: The Controversies Over the Anti-Contact

and Subpoena Rules, 53 U. Pitt. L. Rev. 291 (1992); Falsgraf, A

Dangerous Wedge Between Lawyer and Client, 72 A.B.A.J. 8 (July

1986): Genego, Risky Business: The Hazards of Being a Criminal

Defense Lawyer, 1 Crim. Just. 2 (1986); Glanzer & Taskier, At

torneys Before the Grand Jury: Assertion of the Attorney-Client

Privilege to Protect a Client’s Identity, 75 J. Crim. L. & Criminology

1070 (1984); Krieger & Van Dusen, The Lawyer, the Client and

deed, the court below acknowledged “the serious prob-

lems associated with the practice of government prose-

cutors subpoenaing attorneys to testify about past or

present clients before grand juries.” A. 19a. Likewise,

he respondents in their brief below recognized the “in-

creasing number of attorney subpoenas,” Brief for the

Appellees, at 34 n.18, and the United States Department

of Justice has noted “the potential effects upon an

attorney-client relationship that may result from the

the New Law, 22 Am. Crim. L ev. 737 1985); Peirce &

Colamarino, Defense Counsel as a Witness for the Prosecution

Curb ng the Practice of Issu ng Grand Jury Subpoenas to Counsel

for Targets of Investigations, 36 Hastings L.J. 821 (1985); Rudolf

& Maher, Grand Jury Practice, 5 Crim. Just. 22 (1990); Rudolf &

Maher. T he Attorney Subpoena: You Are Hereby Com manded to

Betray Your Client, 1 Crim. Just 14 (1986 : Rudovsky, T he Right

to Counsel Under Attack, 136 U. Pa. L. Rev. 1965 (1988): Sheri

lan, Grand Jury Subpoenas to Criminal Defense Attorneys: Ma

chusetts Restrains the Federal Prosecutor Through An “Et

cal” Rule, 2 Geo. J. Legal Ethics 485 (1988): Stern & Hoffman,

Privileged Informers: T he Attorney Subpoena Problem and

Proposal for Reform, 136 U. Pa. L. Rev. 1783 (1988); Suni, Sub

poenas to Criminal Defense Lawyers: A Proposal for Limits, 65

Or. L. Rev. 215 (1986); Weiner, Federal Grand Jury Subpoenas to

ittorneys: A Proposal for Reform, 23 Am. Crim. L. Rev. 95

1985) ; Zacharias, A Critical Look at Rules Governing Grand Jury

Subpoenas of Attorneys, 76 Minn. L. Rev. 917 (1992); Zimmerman

& Lavine, Attorney Subpoenas Imperil Choice of Counsel, 26 Trial

51 (April 1990); Comment, Grand Jury Subpoenas to Defense

ittorneys Representing Targets: An Ethical/Legal Tug of Wai

9 Campbell L. Rev. 347 (1987); Comment, Attorneys’ Subpoenas:

The Constitutional, Ethical, and Practical Issues, 60 Temple L.Q

121 (1987); Note, Benefactor Defense Before the Grand Jury

The Legal Advice and Incrimination Theories of the Attorney

Client Privilege, 6 Cardozo L. Rev. 537 (1985): Note, A Critical

Appraisal of the Justice Department Guidelines for Grand Jury

Subpoenas Issued to Defense Attorneys, 1986 Duke L.J. 145; Note,

Grand Jury Subpoenas of a Target’s Attorney: The Need for a

Preliminary Showing, 20 Ga. L. Rev. 747 (1986); Note, Attorney

Client Privilege and Right to Counsel for the Party Under Invest

gation, 19 Wake Forest L. Rev. 487 (1988): Note. After United

States v. Klubock: Can Massachusetts’ New Ethical Rule Curb the

Practice of Subpoenaing the Attorneys of Grand Jury Targets?,

11 W. New Eng. L. Rev. 2838 (1989).

issuance of a subpoena to an attorney for information

relating to the representation of a client,” 7 Department

of Justice Manual at 9-2.161(a) at 9-51 (1992—1 Supp.).

Undoubtedly, there is a strong interest in insuring

“that the grand jury remain ‘free to pursue its investi-

gations unhindered by external influence or supervision

so long as it does not trench upon the legitimate rights

of any witness called before it.’” United States v. Wil-

liams, 112 S. Ct. 1785, 1748 (1992) (quoting Umted

States v. Dionisio, 410 U.S. 1, 17-18 (1973)). Despite

he investigatory powers

its broad authority, however, “[t

of the grand jury are... not unlimited.” United States

R. Enterprises, Inc., 111 8. Ct. 722, 727 (1991). See

Branzburg Uv, Haye s, 408 U.S. 665, 688 (1972). By

creating a pre-service judicial screening mechanism for

attorney subpoenas, ethical rules such as the Common-

wealth of Pennsylvania’s Rule 3.10 attempt to accom-

modate both the federal grand jury’s valid need to gathen

evidence and the important State interest in protecting

the sanctity of the attorney-client relationship.

CONCLUSION

We respectfully submit that review of the decision

below is timely and appropriate. The test employed by

the Court of Appeals for determining the authority of a

district court to promulgate local rules is unduly narrow

and restrictive and would decimate existing local rules.

Moreover, the rigid and expansive Supremacy Clause

analysis applied by the court in an area of preeminent

State interest and authority, the regulation of lawyers,

is plainly inappropriate. The State rule at issue in this

case deserves far more deference since it is not in actual

conflict with a federal rule. Finally, there is now plainly

a conflict between the rules governing federal prosecutors

in the Commonwealth of Massachusetts and in the Com-

monwealth of Pennsylvania, and the issue is likely to

arise in the States of Virginia, Tennessee, and Rhode

Island. Insofar as the American Bar Association’s Model

of Professional Conduct 3.8(f) is adopted by other

States, the conflict will be presented in other jurisdictions.

A more careful and discriminating analysis than that

employed by the court below is required to accommodate

two important and

{ ]

legitimate interests: the right of the

federal

grand jury to obtain speedily and efficiently every

person’s evidence, and the right of the State to establish

and enforce standards of ethical behavior for attorneys.

is no need for the attorney-client relationship to

become a casualty of the war on crime.

rT*1L,. .

The

For the

foregoing reasons, we respectfully submit that

the petition for writ of certiorari should be granted.

Respectfully submitted,

DAVID E. KENDALL *

R. HACKNEY WIEGMANN

WILLIAMS & CONNOLLY

725 Twelfth Street, N.W.

Washington, D.C. 20005

(202) 434-5000

Counsel for Petitioner

The Disciplinary Board of the

* Counsel of Record Supreme Court of Pennsylvania

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the Court of Appeals .... la

Judgment of the Court of Appeals 21a

Memorandum and Order of the District Court 23a

APPENDIX

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

No. 91-1425

MICHAEL M. BAYLSON, JAMES J. WEST,

THOMAS W. CORBETT, JR.

Vv.

THE DISCIPLINARY

30ARD OF THE SUPREME

COURT OF

PENNSYLVANIA, BYRD R.

BROWN; JAMES F.. MUNDY;

MURRAY §S. ECKELL; RICHARD D. CILARDI, JR.; JUDITH

HEH; JOHN R. PADOVA; JOHN A. TUMOLO; DANIEL R.

GILBERT; WILLIAM L. KELLER; GEORGE F. DOUGLAS,

JR.; BERLE L. SCHILLER; CHARLES V. STOELKER, JR.;

FREDERICK WELLS HILL

THE DISCIPLINARY BOARD OF THE SUPREME COURT OF

PENNSYLVANIA,

Appellant.

Argued Nov. 21, 1991

Decided Sept. 16, 1992

As Amended Sept. 21, 1992

Michael M. Baylson (argued), U.S. Atty., Philadelphia,

Pa., for appellees Baylson and West.

tichard A. Sprague (argued), Sprague & Sprague,

Philadelphia, Pa., for appellant.

John J. Kerrigan, Jr. (argued), Newtown Pa.,

for

amicus PA Trial Lawyers Ass’n.

Michael A. Bloom (argued), Philadelphia, Pa., for

amicus PA Bar Ass’n.

Before: MANSMANN, COWEN and HIGGIN-

BOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

The issue on this appeal is whether Rule 3.10 of the

Pennsylvania Rules of Professional Conduct, which was

adopted by the federal district courts in Pennsylvania,

may be enforced against federal prosecutors practicing

before the federal district courts in that state. The rule

requires a federal prosecutor to obtain prior judicial ap-

proval before serving a grand jury subpoena on an at-

torney where the attorney would be asked to testify about

past or present clients. We hold that Rule 3.10 may not

be enforced against federal prosecutors because its adop-

tion as federal law falls outside the rule-making authority

of the district courts, and its enforcement as state law

violates the Supremacy Clause of the United States Con-

stitution.

On November 7, 1988, the Supreme Court of Pennsy]l-

vania adopted Rule 3.10 of the Pennsylvania Rules of

Professional Conduct governing lawyers who practice in

Pennsylvania. Rule 3.10 provides in its entirety:

A publie prosecutor or other governmental lawyer

shall not, without prior judicial approval, subpoena

an attorney to appear before a grand jury or other

tribunal investigating criminal] activity in circum-

stances where the prosecutor or other governmental

lawyer seeks to compel the attorney/witness to pro-

vide evidence concerning a person who is or has been

represented by the attorney witness. Adopted Nov. 7,

1988, effective Nov. 26, 1988.

COMMENT

It is intended that the required “prior judicial ap-

proval” will normally be withheld unless, after a

hearing conducted with due regard for the need for

appropriate secrecy, the court finds (1) the informa-

tion sought is not protected from disclosure by Rule

1.6 [concerning confidentiality of information], the

attorney-client privilege or the work product doctrine;

(2) the evidence sought is relevant to the proceeding;

(3) compliance with the subpoena would not be un-

reasonable or oppressive; (4) the purpose of the sub-

poena is not primarily to harass the attorney/witness

or his or her client; and (5) there is no other feasible

alternative to obtain the information sought.

Before the addition of Rule 3.10, each of the three

federal district courts in Pennsylvania had adopted by

local rules the Rules of Professional Conduct of the Penn-

sylvania Supreme Court, as amended from time to time

by the state supreme court, as the standards of profes-

sional conduct for attorneys admitted to the bars of those

federal courts.

After Rule 3.10 was enacted, all three federal district

courts in Pennsylvania purported to revise their local

rules to state that Rule 3.10 had no application in their

respective jurisdictions. All three districts excepted Rule

3.10 from their local rules without using an advisory

committee and without giving the public prior notice and

opportunity to comment as required by 28 U.S.C. § 2071.

On July 19, 1989, after the federal district courts had

excepted Rule 3.10 from their local rules, plaintiffs,

Michael Baylson, James West and Thomas Corbett, Jr.,

(hereafter collectively referred to as Baylson) members

of the Pennsylvania bar and Acting United States At-

torneys for the three federal districts in Pennsylvania,

sued defendant, the Disciplinary Board of the Supreme

Court of Pennsylvania (Board), in the federal District

Court for the Eastern District of Pennsylvania, to pre-

vent defendant from enforcing Rule 3.10 against them

and other federal prosecutors who are members of the

Pennsylvania Bar.

Specifically, plaintiffs complained that Rule 3.10 vio-

lated Article II of the United States Constitution by in-

fringing on their executive prosecutorial duties. Plain-

tiffs also claimed that Rule 3.10 conflicted with Federal

tule of Criminal Procedure 6(e) by improperly inter-

fering with the grand jury process. Finally, plaintiffs

argued that, because the district courts’ amendments de-

leting Rule 3.10 from the Local Rules were supreme fed-

eral laws, application of Rule 3.10 to federal prosecutors

would violate the Supremacy Clause of the Constitution.

Both Baylson and the Board moved for summary judg-

ment. On April 22, 1991, the district court granted Bay]l-

son’s motion for summary judgment. First, the court

held that the amendments by the federal district courts

deleting Rule 3.10 from their local rules were invalid be-

cause the district courts had not used advisory commit-

tees, nor had they notified and sought comment from the

public, as they are required to do by the Judicial Im-

provement Act, 28 U.S.C. §2071(b}. The court then

agreed with the Board that, since the amendments to the

local rules were invalid, Rule 3.10 remained in force.

The court also agreed with the Board that insofar as the

district courts had adopted it, Rule 3.10 was federal law.

Nonetheless, the court concluded that Rule 3.10 could not

be enforced against federal prosecutors in the Eastern,

Middle and Western Districts of Pennsylvania because

the rule violated the Supremacy Clause of the United

States Constitution.

The Board now appeals. Baylson has not appealed the

district court’s holding that the amendments by the three

federal district courts, excepting Rule 3.10 from their

local rules, were invalid.

In its order granting summary judgment in favor of

Baylson, the district court held that “the United States

District Courts for the Western, Middle and Eastern Dis-

tricts of Pennsylvania have not adopted Pennsylvania

Rule of Professional Conduct 3.10 and that Rule 3.10 is

in conflict with federal law.” Baylson v. Disciplinary

Board of Supreme Court of Pennsylvania, 764 F.Supp.

328, 349 (E.D.Pa.1991).

As far as we can tell, the district court based its hold-

ing on four different grounds.

As to the first ground, the district court reasoned that

the local disciplinary rules themselves implicitly reject

the absorption of Rule 3.10 because the local rules are

not meant to establish mechanisms of judicial review,

rules of procedure or evidentiary standards. Rule 3.10,

according to the district court, does exactly that. It

“Initially creates a rule of criminal procedure that con-

tains evidentiary standards for judicial review and then

impresses an ethical duty upon prosecutors to adhere to

that procedure.” Baylson, 764 F.Supp. at 337. In short,

the district court read Rule 3.10 as a procedural and evi-

dentiary rule masquerading as a rule of conduct.

As to the second ground, the court determined that

Rule 3.10 conflicts with two specific provisions of the

Federal Rules of Criminal Procedure: Rule 6(e) and

Rule 17. Rule 6(e) generally prohibits the disclosure of

matters occurring in front of the grand jury. According

to the district court, Rule 3.10 violates this policy of

secrecy because it would force the government to disclose

secret grand jury information in every instance in which

a subpoena commands an attorney to give evidence about

a client.

Rule 17 regulates subpoena practice. Specifically, Fed.R.

Crim.P. 17 provides in relevant part that the clerk of

the court, without judicial supervision, shall issue a sub-

poena to a party requesting it. Thus, according to the

district court, Rule 3.10 conflicts with Fed.R.Crim.P. 17

because Rule 3.10 requires prior judicial approval of an

attorney subpoena, whereas Fed.R.Crim.P. 17 makes no

allowance for judicial intervention in the issuance or

service of a subpoena to an attorney. /d. at 346.

As to the third ground, the district court found Rule

3.10 to conflict with the historic powers and functions of

the grand jury for two reasons: First, the review pro-

cedure required by Rule 3.10 would invite delays and

detours thereby interfering with the speed of the grand

jury investigations. /d, at 340. Second, Rule 3.10 would

subvert the autonomy of the grand jury by interposing

substantive restraints on the grand jury’s ability to

gather evidence, /d,

As to the fourth ground, the district court determined

that Rule 3,10 impermissibly broadens the seope of the

attorney-client privilege at the expense of the grand

jury, again for two reason lirat, according to the di

trict court, the attorney-client privilege only protects in

formation learned directly from the client and does not

prevent an attorney from testifying about information

learned from sources other than the client. On the other

hand, Rule 3.10 seems to go beyond the attorney-client

privilege and permits an attorney to refuse to divulge

all confidential client information, whether learned from

the client or from any other source. /d, at 345, Second,

the district court reasoned that a witness who is called

to testify before the grand jury cannot decline to do so

altogether on the basis of a privilege, but rather must

assert the privilege document by document, or question

by question. Rule 3.10, on the other hand, would permit

an attorney to decline to appear before the grand jury

without having to assert the privilege docwnent by docu-

ment and question by question. /d. at 344.

On appeal, the Disciplinary Board attempts to refute

each one of the grounds of decision announced by the

district court. However, at bottom, the argument of the

Board in favor of Rule 3.10 comes down to this: allowing

prosecutors to subpoena an attorney to testify about the

attorney's client before a grand jury creates the real

possibility of causing an irreconcilable conflict of interest

between attorney and client, threatening the client’s

Sixth Amendment right to counsel. According to the

Board, calling an attorney as a witness before a grand

jury will probably force the attorney to withdraw before

trial, thereby depriving the client of the attorney of his

or her own choice.

The Board’s Sixth Amendment right of counsel argu-

ment, while phrased in constitutional terms, is, at least

n the facts of this case, an argument of public policy

regarding the attorney-client relationship, Though the

Board may be correct in arguing that attorney subpoenas

raise Sixth Amendment right to counsel concerns, the

fact remains that a person does not have a right to

counsel prior to indictment by a grand jury, Kirby 9

Hilinoia, 406 U.S, 682, 688. 92 S.C 1877, 1881, 82

L,.ed.2d 411 (1972) Moreover, the Supreme Court has

never held that the Sixth Amendment right to counsel in

cludes the absolute right to counsel of one’s own choice

In short, we agree with the decision of the district

court that Rule 3,10 may not be enforced against federal

prosecutors in the three district courts of Pennsylvania.

sut we do not find it necessary to rest our decision on

any of the broad grounds announced by the district court.

Instead, we think it suffices to hold that Rule 3.10 is

invalid because its adoption as federal law falls outside

the local rule-making authority of the federal district

courts, and its enforcement as state law violates the

Supremacy Clause of the United States Constitution.

The reasons for our decision follow.

III

The Supreme Court, pursuant to 28 U.S.C. § 2072(a),

is vested with the authority to prescribe rules of practice

and procedure for the federal courts. The federal dis-

trict and circuit courts may, however, pursuant to 28

U.S.C. §2071(a), prescribe local rules of practice so

long as these rules are consistent with the rules of prac-

tice and procedure promulgated by the Supreme Court

under section 2072.

Federal Rule of Criminal Procedure 57, itself adopted

by the Supreme Court pursuant to 28 U.S.C. § 2072(a),

sets out the power of the district court to adopt local

rules relating to criminal matters, Rule 57 provides in

relevant part that each district court may from time to

time make or amend the rules governing its practice ex-

cept that these rules may not be inconsistent with the

lederal Rulea of Criminal Procedure, The Advisory

Committee’s comments on Rule 57 go on to explain the

narrow scope and purpose of Rule 57, According to the

committee’s comments, the purpose of Rule 57 is to leave

“matters of detail” to individual courts to regulate either

by local rules or by usage, As to the seope of those

‘matters of detail” the committee cites as examples: “the

mode of impanelling a jury, the manner and order of

interposing challenges to jurors, the manner of selecting

the foreman of a trial jury, the matter of sealed verdicts,

the order of counsel’s arguments to the jury and other

similar details.”

Accordingly, when the district court adopts a local rule

which tovches on criminal matters, that rule must com-

ply with at least two requirements. First, pursuant to

28 U.S.C. § 2071(a) and F.R.Crim.P. 57, the local rules

must not be inconsistent with the Federal Rules of Crim-

inal Procedure. Second, as the advisory notes to Rule 57

made clear, the local rules must be narrow in scope and

must deal with “matters of detail” not covered by the

Federal Rules.' Local rules that fail to comply with those

requirements are nullities. Frazier v. Heebe, 482 U:S.

641, 646, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 577 (1987).

Among the rules which fall under the local rule

making authority of the district courts are rules regu-

lating the conduct of attorneys practicing before them.

Theard v. United States, 354 U.S. 278, 281-83, 77 S.Ct.

1274, 1 L.Ed.2d 1842 (1957); Frazier v. Heebe, 482

U.S. 641, 645-46, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557

(1987). Rule 3.10 was adopted by the district courts for

the Eastern, Middle and Western districts of Pennsyl-

vania pursuant to such local rule-making authority. But

in doing so, the district courts exceeded their local rule

making authority because Rule 3.10 cannot be said to be

not inconsistent with Fed.R.Crim.P, 17 as required by 28

U.S.C, § 2071(a), and because Rule 8.10 goes beyond

those “matters of detail” contemplated by Fed.R.Crim.P.

Wi,

Mederal Rule of Criminal Procedure 17 regulates sub-

poena practice, The relevant sections for purposes of our

analysis are subdivisions (a), (b), (e), (f) and (g).

Subdivision (a) provides: “A subpoena shall be issued

by the clerk under the seal of the court. . .. The clerk

shall issue a subpoena, signed, sealed but Otherwise in

blank to a party requesting it, who shall fil] in the blanks

when it is served.” Subdivision (¢) empowers a court to

quash or modify a subpoena duces tecum if compliance

1 This approach is consistent with the Supreme Court’s emphasis

that court rules are adopted under a limited congressional grant of

legislative power. See, e.g., Sibbach v. Wilson & CC®» 312 US. 1,

9-10, 61 S.Ct. 422, 424-25, 85 L.Ed. 479 (1941), A§ Stated by one

commentator: “the federal courts have recognized that rulemaking

authority is ultimately a legislative power residin® in Congress,

although delegated in large measure to the courts.’ J- Weinstein,

Reform Of Federal Court Rulemaking Procedures, 76 Colum.L.Rev.

905, 927-31 (1976).

LL LLL LL LLL

10a

would be unreasonable or oppressive. Subdivision (g)

allows the court to hold in contempt any individual who

“without adequate excuse” fails to obey a served sub-

poena. Subdivision (b) states that if a defendant makes

a showing of financial distress and need for a specific

witness, “[t]he court shall order at any time, that with-

out cost to the defendant, a subpoena be issued for serv-

ice on [the] named witness.” Subdivision (f) requires

the entry of a court order before the clerk of court can

issue a subpoena directing the attendance of a witness

at a deposition.

Other than subdivisions (a), (b), (ec), (f) and (g),

Rule 17 makes no allowance for judicial intervention in

subpoena practice. Moreover, neither Rule 17 nor any

other provision in the federal rules or statutes allows for

judicial intervention before a subpoena is served. In-

stead, subdivision (c) provides that a party may move to

quash a subpoena on the grounds that compliance would

be unreasonable or oppressive only after it has been

served. Here, Rule 3.10 is inconsistent with Fed.R.Crim.

P. 17 because it impermissibly extends the ministerial

role granted the district courts in subpoena practice.

The board argues, however, that Rule 3.10 does not |

~ conflict with Fed.R.Crim.P. 17 because Fed.R.Crim.P. 17

only deals with the issuance of subpoenas whereas Rule

3.10 is concerned with the service of subpoenas. In effect,

the board argues that the federal rules have left a void

in the practice of subpoenas which the district court can

fill by the adoption of a local rule such as Rule 3.10. Of

course, the problem with this argument is that we are

not concerned only with a literal conflict between Rule

3.10 and Fed.R.Crim.P. 17. Both 28 U.S.C. § 2071 (a)

and Fed.R.Crim.P. 57, which authorize the district court

to prescribe local rules, require that the local rules not be

inconsistent with the federal rules. In the present case,

there may not be a literal conflict between Rule 3.10 and

Fed.R.Crim.P. 17. The fact remains, however, that Rule

lla

3.10 is inconsistent with Fed.R.Crim.P. 17 because noth-

ing in Rule 17 grants to the district court what Rule

3.10 purports to do by means of a local rule: the power

to screen grand jury subpoenas prior to service.

Further, even if Rule 3.10 were made to be consistent

with the federal rules, its adoption would still lie outside

the local rule-making authority of the district court be-

cause Rule 3.10 seeks to regulate by means of local rules

an area of criminal practice and procedure which goes

beyond the “matters of detail” contemplated by Fed.R.

Crim.P. 57.

As we have previously stated, the Advisory Commit-

tee’s comments to Fed.R.Crim.P. 57 make clear the nar-

row scope and purpose of the local rule-making authority

of the district court. Specifically, the comments provide

that the rules of practice and procedure prescribed by the

Supreme Court are intended to be a “comprehensive pro-

cedural code for criminal cases in Federal courts,” and

that the district courts are free to fill in with local rules

only those “matters of detail” left open by the rules.

As examples of “matters of detail” which would fall

within the local rule-making authority of the district

court, the Advisory Committee stated: “the mode of im-

panelling a jury, the manner and order of interposing

challenges to jurors, the manner of selecting the foreman

of a trial jury, the matter of sealed verdicts, the order

of counsel’s arguments to the jury and other similar

details.”

These examples of “matters of detail” are concerned

with areas of court administration which the “compre-

hensive” procedural code promulgated by the Supreme

Court left open to the federal district and circuit courts.

For example, in this circuit, we have repeatedly stated

that “local rules play a vital role in the district courts’

efforts to manage themselves and their dockets.” Anchor-

12a

age Assoc. v. Virgin Islands Bd. of Tax Review, 922

F.2d 168, 174 (3d Cir.1990) ; Smith v. Oelenschlager, 845

F.2d 1182, 1184 (3d Cir.1988).

Here, we believe that Rule 3.10 does more than merely

fill in a matter of detail left open by the federal rules

and is concerned with more than just the regulation of

court or docket management. Instead, Rule 3.10 seeks to

establish a broad mechanism for pre-service judicial re-

view of attorney subpoenas, with attendant rules of pro-

cedure and rules of evidence.

The Board argues that the mechanism of judicial re-

view Rule 3.10 seeks to establish can be adopted by the

district court as a local rule because it will not interfere

with federal grand jury practice. That may or may not

be so. But the fatal flaw of Rule 3.10 is not whether it

will disrupt federal grand jury practice. The fatal flaw

of Rule 3.10 is that pre-service judicial approval of grand

jury subpoenas is more than merely a “matter of detail”

which the district court may properly prescribe as a local

rule under Fed.R.Crim.P. 57.

The Board maintains that the district court may prop-

erly adopt Rule 3.10 as a function of its supervisory

powers over the grand jury. We disagree because, with

one notable exception in United States v. Klubock, 832

F.2d 649 (1st Cir.1986), vacated, op. withdrawn, on reh.,

en banc, 832 F.2d 664 (1st Cir.1987), there is no case

precedent for the district court assuming the role of

approving grand jury subpoenas prior to service as

would be required by Rule 3.10. Instead, the Supreme

Court has been very reluctant to place restraints on the

power of the grand jury to issue and serve subpoenas.

In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090,

41 L.Ed.2d 1039 (1974), the Supreme Court held that a

trial subpoena duces tecum issued under Fed.R.Crim.P.

17(c) is not “unreasonable or oppressive” if the party

18a

seeking to enforce the subpoena establishes that the docu-

ments sought are “evidentiary” and “relevant”, that they

are “not otherwise procurable reasonably in advance of

trial by the exercise of due diligence,” that the party

“cannot properly prepare for trial without prior produc-

tion of documents” and that the “application is made in

good faith and is not intended as a general fishing expe-

dition.” Nixon, 418 U.S. at 699-700, 94 S.Ct. at 3103.

However, the Supreme Court has explicitly held that

the Nixon requirements do not apply to grand jury sub-

poenas. In United States v. R. Enterprises, Inc., —~

U.S. ——, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991), a

grand jury issued subpoenas duces tecum to several com-

panies allegedly engaged in the interstate transportation

of obscene materials. The district court denied the com-

panies’ motion to quash and, when the companies refused

to comply with the subpoenas, found each of them in

contempt. The Court of Appeals for the Fourth Circuit

quashed the subpoenas on the grounds that they did not

Satisfy the “relevancy prong” of Nixon. The Supreme

Court reversed holding that the Nixon requirements

simply did not apply to grand jury subpoenas, R. Enter-

prises, U.S. at : , 111 S.Ct. at 726-27.

The Supreme Court reasoned that many of the rules

and restraints that apply to a trial do not apply in grand

jury proceedings. /d. —— U.S. at —~, 111 S.Ct. at 726.

The Court also wrote that the Nixon requirements would

invite procedural delays and detours while courts evalu-

ate the relevancy and admissibility of documents sought

by a subpoena. Jd. —— U.S. at , 111 S.Ct. at 727.

Here, Rule 3.10 requires a court to use the same stand-

ards in approving the service of a grand jury subpoena

on an attorney as the Supreme Court held to be inap-

plicable to grand jury proceedings in R. Enterprises.”

“In addition, the Second Circuit in Jn Re Grand Jury Subpoena

Served upon Doe, 781 F.2d 238, 248 (2d Cir.1986) (en banc) stated

in the context of attorney subpoenas :

l4a

More recently, in United States v. Williams, U.S.

——, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), the Su-

preme Court considered the question of whether a dis-

trict court was correct in dismissing an otherwise valid

grand jury indictment because the government had failed

to disclose to the grand jury substantial exculpatory evi-

dence in its possession. In Williams, respondent was in-

dicted by a grand jury on several counts of knowingly

misrepresenting his assets to a financial institution in

violation of 18 U.S.C. § 1014 (1988). The district court

dismissed the indictment because, according to its own

precedent, the government had failed to disclose substan-

tial exculpatory evidence to the grand jury. The Court

of Appeals for the Tenth Circuit affirmed the district

court’s decision.

The Supreme Court reversed. The court held that the

district court’s supervisory power over the grand jury

did not extend so far as to permit it to impose upon the

prosecutor a legal obligation to present exculpatory evi-

dence to the grand jury. Williams, —— U.S. at

112 S.Ct. at 1746. The court reasoned that:

any power federal courts may have to fashion,

on their own initiative, rules of grand jury proce-

dure is a very limited one, not remotely comparable

to the power they maintain over their own proceed-

ings. It certainly would not permit judicial reshap-

“To impose additional requirements that the government show

its need for the information sought and that the attorney

is the only source for that information would hamper severely

the investigative function of the grand jury.”

The Seventh Circuit has similarly rejected a requirement that the

government show “need” before subpoenaing an attorney. See In

re Klein, 776 F.2d 628, 632 (7th Cir.1985). See also In re Grand

Jury Matter, 926 F.2d 348, 350 (4th Cir.1991); In re Grand Jury

Subpoena for Attorney Representing Criminal Defendant Reyes-

Requena, 913 F.2d 1118, 1127, 1129 (5th Cir.1990); In re Grand

Jury Subpoenas, 906 F.2d 1485, 1495-96 (10th Cir.1990); United

States v, Perry, 857 F.2d 1346, 1847-49 (9th Cir.1988),

ing of the grand jury institution, substantially alter-

ing the traditional relationships between the prose-

cutor, the constitutional court and the grand jury

itself. (Citations omitted).

U.S. at , 112 S.Ct. at 1744.

R. Enterprises, Williams, and other cases in which the

Supreme court has been reluctant to impose substantive

restraints on the grand jury,’ suggest to us that the

district court may not under the guise of its supervisory

power or its local rule-making power, impose the sort of

substantive restraint on the grand jury that is contem-

plated by Rule 3.10.

Id.

The only court which has considered and upheld a rule

of conduct similar to Rule 3.10 is the Court of Appeals

for the First Circuit. In United States v. Klubock, 882

F.2d 649 (1st Cir.1986), vacated, op. withdrawn, on reh..,

en banc, 832 F.2d 664 (1st Cir.1987), the Supreme Judi-

cial Court of Massachusetts had adopted the following

rule of professional conduct known as Prosecutorial

Function 15 (PF 15):

[t is unprofessional conduct for a prosecutor to sub-

poena an attorney to a grand jury without prior

judicial approval in circumstances where the prose-

cutor seeks to compel the attorney/witness to provide

* See United States v. Calandra, 414 U:S. 338, 349, 94 S.Ct. 613,

620, 38 L.Ed.2d 561 (1974) (The exclusionary rule does not apply

to grand jury proceedings. An indictment obtained through the use

of evidence previously obtained in violation of the privilege against

self-incrimination is “nevertheless valid.”): United States v.

Dionisio, 410 U.S. 1, 17-18, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973)

(The grand jury should remain “free to pursue its investigations

unhindered by external influences or supervision so long as it does

not trench upon the legitimate rights of any witness called before

it.”’) ; Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 409,

100 L.Ed. 397 (1956) (The hearsay rule is not enforceable to grand

jury proceedings. Its enforcement “would run counter to the whole

history of the grand jury institution.’’).

l6a

evidence concerning a person who is represented by

the attorney/witness.

A panel of the Court of Appeals for the First Circuit,

in a 2-1 decision, upheld the rule holding that PF 15 was

well within the rule-making power of the district court

to regulate the conduct of attorneys who practice before

them. Klubock, 832 F.2d at 653. However, the court

gave no consideration to the fact that, while PF 15 was

labeled a rule of conduct, it was in fact a procedural

rule which set up a mechanism of judicial review in such

a way as no other rule of conduct ever has.

Chief Judge Campbell, dissenting, reasoned that

whether or not PF 15 was labeled a rule of conduct, the

limitation placed by the rule upon the grand jury’s sub-

poena power was far too “controversial and delicate to be

the sort of matter of detail that fits within a district

court’s local rule making power.” Jd. at 659, 660. Judge

Campbell continued: “If a rule like PF 15 is required,

Congress or, at least, the Supreme Court under its rule-

making authority, acting at the national level, should

promulgate it. A district court may not affect such a

fundamental change through local rules.” Jd. at 663-664.

On reconsideration, the court of appeals, sitting en banc,

failed to produce a majority opinion. Instead the decision

of the panel was affirmed by an equally divided court in

a 8-3 decision.

After a careful examination of the various opinions in

in Klubock we find the dissenting opinion of Chief Judge

Campbell to be convincing. Much like PF 15, Rule 3.10

is not “the sort of detail that fits within the court’s local

rule-making powers.” See Klubock, 832 F.2d at 660.

Having held that the adoption of Rule 3.10 falls out-

side the local rule-making authority of the federal dis-

trict courts, We now turn to the Board’s contention that

17a

Rule 3.10 may still be enforced against federal prosecu-

tors in Pennsylvania as a state rule of Professional con-

duct. The district court reasoned that as a state rule

of Professional conduct Rule 3.10 violates the Supremacy

Clause of the United States Constitution because enforce-

ment of Rule 3.10 “would frustrate the expeditious and

just administration of the federal criminal laws.” Bayl-

son, 764 F.Supp. at 348.

In this appeal the Board responds that Rule 3.10 does

not violate the Supremacy Clause because it is purely a

rule of professional conduct, and states have primary

responsibility in regulating the conduct of attorneys.

Baylson in turn argues that Rule 3.10 does violate the

Supremacy Clause because it is really a rule of proce-

dure masquerading as a rule of conduct, and states have

no business establishing rules of procedure for federal

courts.

Both parties seem to place a great deal of importance

on the name assigned to Rule 3.10. The Board calls it

a rule of professional conduct. Baylson calls it a rule

of procedure. But as Shakespeare asked:

What’s in a name? That which we call a rose By

any other name would smeli as sweet.

For purposes of determining whether Rule 3.10 violates

the Supremacy clause, it matters not at all what the

Board or Baylson choose to call it. What matters is

whether the substance of Rule 3.10 actually conflicts or

is incompatible with federal law. Fidelity Federal Sav.

& Loan Ass’n v. De La Cuesta, 458 U.S. 141, 153, 102

S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Sperry v.

Florida, 373 U.S. 379, 384, 83 S.Ct. 1822, 1325, 10 L.Ed.

2d 428 (1963).

Under the Supremacy Clause, U.S. Const. Art. VI,

cl. 2, when state law conflicts or is incompatible with

federal law, the state law is pre-empted by federal law.

Pre-emption occurs when Congress explicitly or implicitly

18a

states its intent to regulate a specific area at the ex-

clusion of the states. Fidelity Federal, 458 U.S. at 152-

153, 102 S.Ct. at 3022. Pre-emption also occurs when

the state regulation actually conflicts or is incompatible

with federal law. Fidelity Federal, 458 U.S. at 153, 102

S.Ct. at 3022; Sperry, 373 U.S. at 384, 83 S.Ct. at 1825.

Finally, the Supreme Court has made clear that these

principles apply even when the area being regulated by

federal law is one of special concern to the state. F7-

delity Federal, 458 U.S. at 158, 102 S.Ct. at 3022; Ridg-

way v. Ridgway, 454 U.S. 46, 54-55, 102 S.Ct. 49, 54,

70 L.Ed.2d 39 (1981) ; Sperry, 373 U.S. at 384, 83 S.Ct.

at 1325; Free v. Bland, 369 U.S. 6638, 666, 82 S.Ct.

1089, 1092, 8 L.Ed.2d 180 (1962).

For example, in Sperry, the Florida Bar sued defend-

ant, a nonlawyer, to prevent him frém representing clients

before the Patent Office. The Florida bar argued that

such representation violated Florida Law because it con-

stituted unauthorized practice of law by a nonlawyer.

Defendant argued that he was authorized to represent

clients before the patent office pursuant to federal reg-

ulations which permitted nonlawyers to advise and as-

sist clients in the presentation and prosecution of their

applications before the patent office. In support of its

position, the Florida Bar argued in part that Florida

could prevent defendant from practicing before the Patent

Office because of Florida’s substantial interest in regu-

lating the practice of law in that state. The Supreme

Court disagreed and held that Florida could not prevent

a nonlawyer from practicing before the Patent Office, not-

withstanding that such activity constituted practice of

law in Florida. Sperry, 373 U.S. at 385, 83 S.Ct. at

1325. The court reasoned that Florida could not “impose

upon the performance of activity sanctioned by federal

license additional conditions not contemplated by Con-

gress.” Id.

Similarly, here, Pennsylvania does have an important

interest in regulating the conduct of attorneys licensed

19a

to practice in the state. But “‘the law of the state,

though enacted in the exercise of powers not contro-

verted, must yield’ when incompatible with federal legis-

lation.” Sperry, 373 U.S. at 384, 83 S.Ct. at 1325, quot-

ing Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23

(1824). Rule 3.10, as written, is simply incompatible

with federal grand jury law for two reasons.

First, as we have previously stated in examining the

validity of the district court’s adoption of Rule 3.10 as a

local federal rule, Rule 3.10 is inconsistent with Rule

17 of the Federal Rules of Criminal Procedure. If Rule

3.10 as a local federal rule is inconsistent with Fed.R.

Crim.P. 17, it does not suddenly become consistent with

Fed.R.Crim.P. 17 as a state rule of professional conduct.

In other words, Rule 3.10 violates the Supremacy clause

because it is incompatible with Fed.Crim.R.P. 17.

Second, Rule 3.10 purports to impose upon federal

grand jury practice a requirement of pre-service judicial

review of grand jury subpoenas. Such a requirement,

as we have discussed above, is neither contemplated by

the Federal Rules nor sanctioned by case precedent. In

other words, Rule 3.10 violates the Supremacy Clause be-

cause, as the Supreme Court held in Sperry, it “imposes

upon the performance” of federal grand jury activity

“conditions not contemplated by Congress.” Sperry, 373

U.S. at 385, 83 S.Ct. at 1326.

This court is not unmindful of the serious problems

associated with the practice of government prosecutors

subpoenaing attorneys to testify about past or present

clients before grand juries. As the Ninth Circuit has

expressed :

*See Stern & Hoffman, Privileged Informers: The Attorney

Subpoena problem and a Proposal for Reform, 136 U.Pa.L.Rev.

1783, 1828 (19—) ; Zwerling, Federal Grand Juries v: Attorney Inde-

pendence and Attorney-Client Privilege, 27 Hastings L.J. 1263,

1268 (1976); Campbell, Eliminuie the Grand Jury, 64 J.Crim.L.

& Criminology 174 (1978).

2008

Viany feel, and with some justifieation, that what

ever benefit the government derives from this prac

Lice comes at the direct expense of the attorney-client!

Lelationship. Among the perceived cost, for example,

are the potential loss of a client’s choice of counsel

should the latter be compelled to testify at the trial

and the potential chilling effect upon the client’s

trust in his counsel’s loyalty.

United States v. Perry, 857 F.2d 1346, 1347 (9th Cir.

1988).

Moreover, this court is not convinced that the historic

powers and functions of the grand jury alone would pre-

vent the adoption of a federal rule requiring government

prosecutors to obtain judicial approval before serving a

grand jury subpoena on an attorney. While the grand

jury has always played a unique role in our system of

criminal justice, so too, we believe, has the attorney-

client relationship. Justice Jackson said it best: “The

lawyer and the law office are an indispensable part of

our administration of justice.” Hickman v. Taylor, 329

U.S. 495, 515, 67 S.Ct. 385, 395, 91 L.Ed. 451 (1947)

(Jackson, J., concurring).

But whatever balance which needs to be stricken be-

tween the grand jury and the attorney-client relation-

ship, it cannot be achieved by means of the limited power

of the federal district and circuit courts to prescribe

local rules. We therefore hold that Rule 3.10 may not be

enforced against federal prosecutors practicing before

the federal district courts for the Eastern, Middle and

Western district courts of Pennsylvania because its adop-

tion as federal law falls outside the local rule-making

authority of the district court, and because its enforce-

inent as state law violates the Supremacy Clause of the

United States Constitution.

We will affirm the decision of the district court.

218

UNITED STATES COURT OF APPRALS

rOR THE THIRD CIRCUTT

No. 91-1425

MICHAEL M. BAYLSON

JAMES J. WEST

THOMAS W. CORBETT, JR.

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

ByrRD R. BROWN; JAMES F. MuNpy: Murray §S.

ECKELL; RICHARD D. CILARDI, JR.; JUDITH HEH: JOHN

R. PADOVA; JOHN A. TUMOLO: DANIEL R. GILBERT:

WILLIAM L. KELLER; GEORGE F. DouGLas, JR.: BERLE

L. SCHILLER; CHARLES V. STOELKER, JR.: FREDERICK

WELLS HILL

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 89-5264)

Present: Mansmann, Cowen and Higginbotham, Circuit

Judges

J UDGMENT

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued by counsel November 21,

1991.

eel

On consideration whereof, it is now here ordered and

mijudved by this Court that the judgment of the said

Distriet Court entered April 24, 1001, be, and the same

is hereby afhrmed. Costs taxed against appellant. All ol

the above in accordance with the opinion of this Court.

ATTEST:

Sally Mrvos

Clerk

Dated: September 16, 1992

Jia

UNITED STATES DISTRICT COURT

m1), PRNNSBYLVANIA

Civ. A. No. 89-5264

MICHAEL M. BAYLSON, JAMES J. WEST

and CHARLES D. SHEEHY

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

April 22, 1991

Michael M. Baylson, U.S. Atty., David F. MeComb.

Asst. U.S. Atty., Philadelphia, for plaintiffs.

Richard A. Sprague, Thomas A. Sprague, Philadelphia,

for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The plaintiffs in this action are members of tie Penn-

sylvania Bar and the United States Attorneys or Acting

United States Attorneys for the three districts of Penn-

sylvania. They seek relief from a state disciplinary rule

that impresses an ethical obligation on them, as prose-

cutors, to obtain judicial approval before subpoenaing

any lawyer to give evidence about his or her client to a

grand jury. The parties have filed cross-motions for

summary judgment. For the reasons that follow. the

Court will grant the plaintiffs’ motion,

After the advent of the Racketeer Influenced and Cor-

rupt Organizations Act, Pub.L. 98-473, 98 Stat. 1837

(codified as amended at 18 U.S.C. §§ 1961-68), and the

Continuing Criminal Enterprise statute, Pub.L. 91-513,

84 Stat. 1265 (codified at 21 U.S.C. § 848), Justice

Department officials concluded that attorneys often held

non-privileged information pertinent to criminal investi-

gations and thus discarded their previous reticence in

subpoenaing them to appear before grand juries. See

Stern & Hoffman, Privileged Informers: The Attorney

Subpoena Problem and a Proposal for Reform, 136 U.Pa.

L.Rev. 1783, 1786-89 (1988). This revision in policy has

inspired a vigorous national debate about the propriety

and ramifications of compelling lawyers to testify before

investigative bodies. See, e.g., Pierce & Colamarino, De-

fense Counsel as a Witness for the Prosecution: Curbing

the Practice of Issuing Grand Jury Subpoenas to Counsel

for Target -of Investigations, 36 Hastings L.J. 821

(1985) ; Subin, The Lawyer as Superego: Disclosure of

Client Confidences to Prevent Harm, 70 Iowa L.Rev.

1091, 1178-79 (1985) ; Note, A Critical Appraisel of the

Justice Department Guidelines for Grand Jury Sub-

poenas Issued to Defense Attorneys, 1986 Duke L.J. 145;

Note, Grand Jury Subpoenas of a Target’s Attorney: A

Need for a Preliminary Showing, 22 Ga.L.Rev. 747

(1986) ; Lawyer Cited for Contempt Over Fee Data, N.Y.

Times, Apr. 18, 1991, at Bl, col. 5; Thornburgh Policy

Leads to a Sharp Ethics Battle, N.Y. Times, Mar. 1,

1991, at B4, col. 3; New Rule Set on Lawyer Subpoenas,

Nat’l L.J., Nov. 4, 1985, at 3, 42. It also has motivated

some state and federal courts to devise disciplinary rules

that require prosecutors to secure judicial approval be-

fore subpoenaing attorneys. D.Mass.R. 5(d) (4) (B);

Mass.8.J.C.R. 3:08 (PF 15); Tenn.Ct.R.DR 7-103; Va.

S.Ct.R. 3A:12 (codified as DR 8-102(A)). This roster

now includes the Supreme Court of Pennsylvania, which

25a

has enacted Rule 3.10 of the Rules of Professional Con-

duct. The Rule provides:

A public prosecutor or other governmental lawyer

shall not, without prior judicial approval, subpoena

an attorney to appear before a grand jury or other

tribunal investigating criminal activity in circum-

stances where the prosecutor or other governmental

lawyer seeks to compel the attorney/witness to pro-

vide evidence concerning a person who is or has been

represented by the attorney/witness. Adopted Nov.

7, 1988, effective Nov. 26, 1988.

COMMENT

It is intended that the required “prior judicial

approval” will normally be withheld unless, after a

hearing conducted with due regard for the need for

appropriate secrecy, the court finds (1) the informa-

tion sought is not protected from disclosure by Rule

1.6 [concerning confidentiality of information], the

attorney-client privilege or the work product doc-

trine; (2) the evidence sought is relevant to the

proceeding; (3) compliance with the subpoena would

not be unreasonable or oppressive; (4) the purpose

of the subpoena is not primarily to harass the

attorney/witness or his or her client; and (5) there

is no other feasible alternative to obtain the infor-

mation sought.

Although various statutes and the Federal Rules of

Procedure constitute the primary means for regulating

practice in the federal district courts, the judges of each

district are authorized to promulgate and amend local

rules of practice. 28 U.S.C. § 2071(a); Fed.R.Civ.P. 83;

Fed.R.Crim.P. 57. Pursuant to this rulemaking power,

all three federal district courts situated in Pennsylvania

ostensibly revised their local rules to state in terms that

Rule 3.10 had no application in their respective jurisdic-

tions. Local Rule 22 of the United States District Court

26a

for the Western District of Pennsylvania provides that

the “Rules of Professional Conduct adopted by this court

are the Rules of Professional Conduct adopted by the

Supreme Court of Pennsylvania, as amended from time

to time by the state court, except as otherwise provided

by specific rule of this court.” W.D.Pa.R.P. 22(I) (B).

On March 11, 1989, the Court issued an Order provision-

ally expunging Rule 3.10 from its Local Rules:

Rule 3.10 of the Rules of Professional Conduct,

adopted by the Supreme Court of Pennsylvania and

effective November 26, 1988, shall be and hereby is

deleted as a rule of this court.

COMMENT: The Board of Judges concludes that

Rule 3.10 of the Rules of Professional Conduct,

adopted by the Supreme Court of Pennsylvania, im-

poses an unnecessary and unreasonable burden on

the Department of Justice and this court. Federal

law and existing practice provide defense counsel and

their clients with standing to raise justiciable issues

in appropriate cases following the issuance of a

grand jury subpoena. The Clerk of Court is directed

to comply with Rule 73 of the Rules of Civil Pro-

cedure forthwith and the order shall take effect 60

days thereafter, unless otherwise ordered by the

court.

On May 17, 1989, the judges of the Western District

signed an Order formally integrating the exception into

Local Rule 22. Similarly, the Middle District amended

its Local Rule 304.2 to read: “The Rules of Professional

Conduct adopted by this court are the Rules of Profes-

sional Conduct adopted by the Supreme Court of Pennsyl-

vania, except Rule 3.10, as amended from time to time

by that court, unless specifically excepted in this court’s

rules.” Eastern District Local Rule of Civil Procedure

14, applicable to criminal proceedings pursuant to Local

Rule of Criminal Procedure 2, provides that

27a

The Rules of Professional Conduct adopted by this

Court are the Rules of Professional Conduct adopted

by the Supreme Court of Pennsylvania, as amended

from time to time by that state court, except as oth-

erwise provided by specific Rule of this Court after

consideration of comments by representatives of bar

associations within the state, except that prior court

approval as a condition to the issuance of a subpoena

addressed to an attorney in any criminal proceeding,

including a grand jury, shall not be required. The

propriety of such a subpoena may be considered on a

motion to quash.

Amended May 23, 1990.

K.D.Pa.R.Civ.P. 14(IV) (B).

The plaintiffs instituted this action to prevent the de-

fendant, the Disciplinary Board of the Supreme Court

of Pennsylvania, from enforcing Rule 3.10 against them

and other federal prosecutors who are members of the

Pennsylvania Bar. Created in 1972, the Disciplinary

Board is an eleven member body that serves under the

direction of the Pennsylvania Supreme Court and is

charged with administering the state’s Rules of Profes-

sional Conduct. Pa.R.D.E. 102(a), 201, & 205(a). The

Board may commence an investigation into alleged attor-

ney misconduct either on its own motion or in response

to a complaint filed by any person. Pa.R.D.E. 205(c) (1)

& 208(a)(1). Generally speaking, formal disciplinary

proceedings against an attorney are conducted before a

Board-appointed hearing committee, Pa.R.D.E. 205(c)

(3) & (5), which, after receiving evidence and enter-

taining argument, submits to the Board a recommended

disposition of the matter. The Board, after review of the

committee’s report, prepares its own statement of find-

ings and recommendations, which is forwarded to the

Supreme Court. Pa.R.D.E. 205(c) (6) & 208(d) (2).

According to the plaintiffs’ complaint, because the dis-

trict courts’ amendments deleting Rule 3.10 from the

28a

local rules are federal laws and therefore supreme, they

cannot be sanctioned for failing to secure prior judicial

approval of attorney subpoenas. The plaintiffs also argue,

among other things, that Rule 3.10 conflicts with the

Federal Rules, violates article II of the Constitution by

infringing on their executive duties to investigate crimi-

nal wrongdoing and to enforce federal laws, and inter-

feres with the judiciary’s article III powers to supervise

federal grand juries. Both parties initially moved for

judgment on the pleadings. The defendant asserted var-

ious reasons in support of its motion, including comity,

justiciability, and failure to join an indispensable party.

The plaintiffs, on the other hand, thought that the dis-

trict courts’ exceptions to Rule 3.10 in the local rules

entitled them to judgment. The Court denied both mo-

tions, primarily because there were conflicting factual

allegations regarding the procedural validity of the dis-

trict courts’ revisions to their local rules. Resolution of

that question, in the Court’s view, dictates whether other

issues of potentially constitutional dimension need be

reached. In other words, even though some grounds raised

by the plainitffs could have been disposed of on the plead-

ings, notions of judicial restraint required that the Court

consider the local rules dispute first because it comprised

the narrowest possible nonconstitutional ground upon

which a decision could rest. See Harris v. McRae, 448

U.S. 297, 306-07, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784

(1980); Spector Motor Serv., Inc. v. McLaughlin, 323

U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944).

Thus, the Court directed that discovery be had.

The parties now have filed cross-motions for summary

judgment. The plaintiffs urge the Court to hold that

valid Local Rules exempt them from Rule 3.10’s opera-

tion and that Rule 3.10 is inconsistent with the Federal

Rules of Criminal Procedure and the Constitution. The

Disciplinary Board, having abandoned the threshold ar-

guments it asserted earlier and agreeing the case is ripe

for disposition, contends that the district courts’ amend-

29a

ments deleting Rule 3.10 are unsound for lack of appro-

priate notice and comment. Because, as a result, Rule

3.10 has been incorporated into federal law by the local

rules of disciplinary enforcement and because it does not

conflict with any Federal Rule, statute, or constitutional

provision, the defendant concludes, the plaintiffs are not

at liberty to disregard the obligations that Rule 3.10

imposes.

IT.

Individual federal courts have possessed, from their

inception, rulemaking authority in some form. See Act

of March 2, 1793, Ch. 22, § 7, 1 Stat. 33; Note, Rule 83

and the Local Federal Rules, 67 Colum.L.Rev. 1251, 1253-

54 (1967). As indicated earlier, 28 U.S.C. § 2071, Fed.

R.Civ.P. 83, and Fed.R.Crim.P. 57 currently permit each

district court to make and amend local rules of practice.

Rodgers v. United States Steel Corp., 508 F.2d 152, 163

(8d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46

L.Ed.2d 50 (1975). These enabling provisions restrict

the district court’s power to do so, however, in important

respects. The court may establish or revise local rules

only after providing appropriate public netice and an

opportunity to comment. 28 U.S.C. § 2071(b); Tiedel v.

Northwestern Michigan College, 865 F.2d 88, 91 (6th

Cir. 1988). This limitation, which was imposed by

a 1985 amendment to the Federal Rules and by the

Judicial Improvements and Access to Justice Act of

1988, Pub.L. 100-702, 102 Stat. 4642 (codified in rele-

vant part at 28 U.S.C. §§ 2071-77), is designed to ensure

that local rules, like administrative regulations, are sub-

ject to public scrutiny and are formulated with the ad-

vice of those whom the rules affect. H.R.Rep. No. 422,

99th Cong., 1st Sess. 14-15, 18, 29 (1985); Fed.R.Civ.P.

83 advisory comm. note; Fed.R.Crim.P. 57 advisory

comm. note; Siegel, Changes in Federal Jurisdiction and

Practice Under the New Judicial Improvements and Ac-

cess to Justice Act, 123 F.R.D. 399, 409-10 (1989).

Local rules that are not drafted pursuant to the notice

30a

and comment procedures are invalid. See 28 U.S.C.

§ 2071(b); Fed.R.Civ.P. 83 (“A local rule so adopted

shall take effect . . .” (emphasis added) ); Fed.R.Crim.P.

57: 7 J. Moore & J. Lucas, Moore’s Federal Practice

7 83.02, at 83-6 (1990) (“Assuming that the public

notice and opportunity to comment provisions have been

satisfied, the rule or amendment will become effective on

the date specified by the district court.”’) ; see also Wein-

stein, Reform of Federal Court Rulemaking Procedures,

76 Colum.L.Rev. 905, 953 (1976). If there is “an imme-

diate need,” a court may dispense with notice and com-

ment before implementing a rule, provided that it gives

notice and an opportunity to comment “promptly there-

after.” 28 U.S.C. § 2071(e). In addition, the Judicial

Improvements Act, which places more rigorous controls

on court rulemaking than do the Federal Rules of Pro-

cedure, mandates that in promulgating local rules each

district court “shail” utilize an advisory committee,

which should include members of the bar and which must

make recommendations to the court. 28 U.S.C. § 2077

(b); H.R.Rep. No. 422, 99th Cong., 1st Sess. 28 (1985)

(“All lower Federal courts are required to use advisory

committees as well as notice and comment.”); Siegel,

Practice Commentary, reprinted in 28 U.S.C.A. foll.

§ 2077 (1990 Supp.).

Neither the Federal Rules nor section 2071 fix the

precise manner in which public notice must be dissemi-

nated and opportunity for comment afforded. The Ad-

visory Committee’s note on Fed.R.Civ.P. 88 states, “The

amended Rule does not detail the procedure for giving

notice and an opportunity to be heard since conditions

vary from district to district. Thus, there is no explicit

requirement for a public hearing, although a district may

consider that procedure appropriate in all or some rule-

making situations.” A district court similarly enjoys

“considerable latitude” in calibrating its public notice

method to the individual needs of its jurisdiction.

3la

7 J. Moore & J. Lucas, supra, {| 83.02, at 83-5. “For ex-

ample, the court may choose to publish the proposed rule or

amendment in the advance sheets, mail notice to members

of its bar or submit copies to bar and other professional

organizations.” Jd, {| 88.02, at 83-6. A court also, rather

than incur the expense of publication, may issue press

releases describing proposed rule changes and inviting

comment. Committee on Rules of Practice and Procedure

of the Judicial Conference of the United States, Memo-

randum to United States District Court Judges, Jan. 30,

1989, at 2.

Although the pertinent statutes, Federal Rules, and

legislative history explain that the notice and comment

requirement is a flexible one, those sources do not define

what information the notice itself must convey. Some

guidance may be found in the Administrative Procedure

Act. 5 U.S.C. § 551 et seq. To be deemed adequate under

the APA, an agency’s notice of rulemaking must advise

the public of the terms or substance of the proposed rule

or describe the subjects or issues implicated by the con-

templated action. 5 U.S.C. §553(b); S.Rep. No. 248,

79th Cong., 2d Sess. 200 (1946) (‘Agency notice must

be sufficient to fairly appraise interested parties of the

issues involved, so that they may present responsive data

or argument relating thereto.”) ; United States v. Florida

FE. Coast R. Co., 410 U.S. 224, 248-44, 98 S.Ct. 810, 820,

35 L.Ed.2d 2238 (1978); Associated Builders and Con-

tractors, Inc. v. Brock, 862 F.2d 68, 67 (3d Cir.1988) :

Simmons v. I.C.C., 757 F.2d 296, 300 (D.C.Cir.1985) :

American Iron & Steel Inst. v. EPA, 568 F.2d 284, 298

(3d Cir.1977). The notice also must specify the time,

place, and nature of the comment procedure to be em-

ployed. 5 U.S.C. § 553(b); 1 K. Davis, Administrative

Law Treatise § 6:25, at 571-72 (2d ed. 1978). The

underlying purpose of the Judicial Improvements Act and

the amendments to Fed.R.Crim.P. 57 and Fed.R.Civ.P. 83

justifies importing these easily met requisites into the

district court rulemaking context. After all, those pro-

32a

visions are intended to ensure that the legal profession

and interested members of the public have an opportu-

nity to be heard. H.R. Rep. No. 422, 99th Cong., 1st

Sess. 14-15, 18, 29 (1985); Fed.R.Civ.P. 83 advisory

comm. note; Fed.R.Crim.P. 57 advisory comm. note; Sie-

gel, supra, 123 F.R.D. 399, 409-10 (1989); Weinstein,

a supra, 76 Colum.L.Rev. at 963-64. That end obviously

would be frustrated if a court’s notice of rulemaking

failed to disclose the subject matter of the anticipated

local rule or the manner in which comments could be

presented.

The plaintiffs contend at the outset that this Court

cannot pass on the procedural validity of the local rules

at issue. Instead, they maintain, the Judicial Improve-

ments Act and the Federal Rules vest exclusive authority

to do so in the Judiciai Council of the Circuit. The plain-

tiffs are mistaken. Because Congress was discontent

with the proliferation of local rules that conflicted “with

the letter and the spirit” of rules of national applicabil-

ity, H.R.Rep. No. 422, 99th Cong., 1st Sess. 15, 27-28

(1985); see also H.R.Rep. No. 889, 100th Cong., 1st

Sess. 27, reprinted in 1988 U.S. Code Cong. & Admin.

News 5982, 5988, the Judicial Improvements Act re-

quires the Judicial Council of each Circuit to review

periodically the local rules implemented by the district

courts within its purview for consistency with the Fed-

eral Rules. 28 U.S.C. § 382(d) (4). Not only did Con-

gress empower the Council to “modify or abrogate” any

local -rule found inconsistent with national practice or

procedure, 28 U.S.C. § 332(d) (4), it significantly altered

the nature of its review. “This test for inconsistency

should not, however, be whether the deviation made by

the local rule from the general rule is ‘outcome deter-

minative[.’] [R]Jather, the test should be whether the

local rule can co-exist with the general rule without

negating the purpose of the general rule.” H.R.Rep. No.

422, 99th Cong., Ist Sess. 27 (1985) (quoting Colgrove

33a

v. Battin, 413 U.S. 149, 164 n. 23, 93 S.Ct. 2448, 2456

n. 28, 37 L.Ed.2d 522 (1973) ).

Courts regularly have entertained challenges to local

rules on a variety of grounds, see, é.g., Frazier v. Heebe,

482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987);

Gulf Ou Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2198, 68

L.Ed.2d 693 (1981); Frangos v. Doering Equip. Corp.,

860 F.2d 70 (3d Cir.1988) ; Bailey v. Systems Innovation,

Inc., 852 F.2d 93 (3d Cir.1988) ; Hawes v. Club Ecuestre

El Comandante, 5385 F.2d 140 (1st Cir.1976); Brewster

v. North Am. Van Lines, Inc., 461 F.2d 649 (7th Cir.

1972), including that procedural requisites were not

satisfied. Miner v. Atlass, 363 U.S. 641, 650, 80 S.Ct.

1300, 1306, 4 L.Ed.2d 1462 (1960): Horner Equip. Int'l

v. Seascape Pool Center, Inc., 884 F.2d 89. 94 & n. 18

(3d Cir.1989) ; United States v. Klubock, 832 F.2d 664,

666 (Ist Cir.1987) (in bane) (notice and comment):

id. at 671-75 (Breyer, J., dissenting) (same): United

States v. Columbia Broadcasting Sys., Inc., 497 F.2d 102.

103 n. 3 (5th Cir.1974) ; see Smith v. Oelenschlager, 845

F.2d 1182, 1183-84 (3d Cir.1988). Nothing in the lan-

guage of the Federal Rules or section 332 evinces a newly

devised intent to divest the judiciary of that long-stand-

ing authority, and no case has ever intimated to the con-

trary. As the legislative history explicitly reveals, the

Judicial Councils and the courts share the power of re-

view. “Of course, local rules may be found improper by

a court in a court proceeding.” H.R. Rep. No. 422, 99th

Cong., Ist Sess. 28 (1985). Further, section 2073, which

establishes the method for promulgating Rules of Proce-

dure and Evidence under section 2072, states that proce-

dural deficiencies do not render such Rules invalid. 28

U.S.C. § 2073(e) (“Failure to comply with this section

does not invalidate a rule prescribed under section 2072

of this title.”). Its purpose is “to avoid litigation about

the propriety of a rule when the only alleged invalidity is

10n-compliance with one of the procedural requirements”’

stated in section 2073. H.R.Rep. No. 422, 99th Cong.,

34a

Ist Sess. 26 (1985). The absence of a parallel provision

regarding district court rulemaking under section 2071

is additional proof that Congress did not immunize local

rules from judicial examination for procedural regularity.

Turning to the substance of the defendant’s attack on

the amendments to the three local disciplinary rules, the

Court agrees that the district courts did not follow ap-

propriate notice and comment rulemaking procedures.

The uncontroverted facts disclose that on February 6,

1989, the judges of the Eastern District voted unani-

mously? to remove Rule 3.10 from Local Rule 14. Sub-

sequently, on March 14, 1989, the judges formally de-

termined that prior notice and comment could be dis-

pensed with because there was an immediate need for

the exception. 28 U.S.C. § 2071(e). On May 23, 1990,

the Chief Judge of the Eastern District signed an Order

amending Rule 14 to state in terms that court approval

as a precondition to the issuance of a subpoena was not

required. The Clerk of the Court then sent copies of re-

vised Rule 14 to all attorneys registered on the local

rules mailing list. No notice soliciting comment accom-

panied the distribution, and no such notice was circulated

afterward. Although the record submitted by the parties

is far from clear on the point, at least one judge of the

Eatsern District discussed the amendment to Local Rule

14 with attorneys at a Bench Bar conference.

On January 20, 1989, the judges of the Middle Dis-

trict voted to extirpate Rule 3.10 from its Local Rule

304.2. The decision was without dissent. In early March,

the Clerk of Court issued a press release, which read:

The Judges of this court recently approved a modi-

fication of Local Rule 304.2. That rule applies the

Rules of Professional Conduct adopted by the Su-

preme Court of Pennsylvania to all attorneys ad-

1In the Eastern District, senior judges do not vote on proposed

local rules or amendments.

35a

mitted to practice before the Middle District. The

modification excepts Rule 3.10 of the Rules of Pro-

fessional Conduct adopted by the Supreme Court

of Pennsylvania from being applied in this court.

The press release was dispatched to various legal publi-

cations in the District. No other notice was disseminated,

and no comments were ever lodged with the Court.

On March 21, 1989, the judges of the Western Dis-

trict approved, also unanimously, an Order declaring that

Rule 3.10 “shall be and hereby is deleted as rule of this

court.” See supra at 331-332. The Order itself stated

that it was not to take effect until sixty days later. The

mandate then was published in the Pittsburgh Law Jour-

nul. On April 24, 1989, the Clerk of Court advised the

Chief Judge of the Western District that “‘[t]he time for

public comment on the proposed amendment of Local Rule

22(B) has passed, and no comments have been received.

I have, therefore, prepared the attached Order for your

consideration and approval.” At a meeting held on May

17, 1989, the judges of the Court formally acted to ex-

punge the state bar provision from Local Rule 22.

The putative revisions share two defects. First, the

district courts did not utilize advisory committees at any

stage in promulgating the amendments. Second, the no-

tices distributed by the districts did not solicit comment

or explain where, how, or when interested individuals

could be heard regarding the deletion of Rule 3.10 from

the local rules. With the excepiion of the Western Dis-

trict’s Order of March 21, the notices also give every im-

pression that the Courts were simply announcing their

final decisions, rather than inviting input. That no in-

dividuals (apart from the United States Attorneys) and

only one organization in the entire Commonwealth sub-

mitted comment about the amendments confirms this con-

clusion. Nor does the Court find persuasive the plain-

tiffs’ argument that discussion of the attorney subpoena

controversy at a Bench Bar conference satisfied the East-

36a

ern District’s statutory obligation to afford notice and an

opportunity to comment. Undoubtedly, a properly an-

nounced, open meeting between judges and interested in-

dividuals to debate the merits of a particular rule would

discharge section 2071(a)’s notice and comment require-

nrent. In this case, however, there is no evidence that the

agenda of the Bench Bar conference was adequately no-

ticed, or that the public or even all interested lawyers in

the District were invited to attend the discussion. Ac-

cordingly, the three amendments are invalid.

ITT.

As explained previously, Eastern District Civil Rule

14, Middle District Rule 304, and Western District Rule

22 adopt the Rules of Professional Conduct enacted by the

Supreme Court of Pennsylvania as the ethical standards

that attorneys must obey when practicing in the district

courts. The defendant argues that once the defective ex-

ceptions to Rule 3.10 are excised, the local rules incor-

porate all of Pennsylvania’s Rules of Professional Con-

duct, including 3.10. The Disciplinary Board is correct

in its assertion that when an amendment to an existing

local rule has not been perfected, the original rule re-

mains in force. United States v. Diaz-Villafane, 874 F.2d

48, 45 (1st Cir.), cert. denied, U.S. , 110 S.Ct.

177, 107 L.Ed.2d 133 (1989). The defendant also is right

to say that insofar as the district courts have adopted it,

Rule 3.10 is a federal law. See United States v. Klubock,

832 F.2d 649, 651 (1st Cir.1986), reinstated in relevant

part by equally divided court, 832 F.2d 664, 668 (lst

Cir.1987) (in banc).

The Court concludes, however, that the pertinent local

rules themselves implicitly reject the absorption of Rule

3.10 and that Rule 3.10 is not compatible with the Fed-

eral Rules of Criminal Procedure or well-settled grand

37a

jury practice. These issues are interrelated. Local rules

that are in conflict with the Federal Rules or Acts of

Congress are nullities. 28 U.S.C. § 2071; Fed.R.Crim.P.

57; Frazier, 482 U.S. at 646, 107 S.Ct. at 2611; Lasky

v. Continental Products Corp., 804 F.2d 250, 255 (8d

Cir.1986) ; United States v. Statchuk, 682 F.2d 466, 467

(4th Cir.1982). If the Court were to interpret the three

local rules in question as requiring judicial scrutiny of

grand jury subpoenas directed to attorneys before they

are served, it would have to declare that portion of them

to be inconsistent with the Rules of Criminal Procedure.

Because statutes or rules should be construed in a man-

ner that renders them compatible with one another, im-

plying exceptions to Rule 3.10 in the local rules is war-

ranted. United States v. Lopez-Cavasos, 915 F.2d 474,

479 (9th Cir.1990). In any event, whether the local

rules displace Rule 3.10 by implication or the Federal

Rules forbid integration of Rule 3.10 into the local rules,

the result is the same. Preservice judicial review of grand

jury subpoenas addressed to attorneys is neither avail-

able nor permitted in the federal district courts of Penn-

sylvania. There are several reasons for this.

First, the local disciplinary rules are designed to reg-

ulate “the conduct of attorneys” who practice before the

district courts. E.D.Pa.Civ.R. 14; W.D.Pa.R. 22; see

M.D.Pa.R. 304.1. “Acts or omissions by an attorney ad-

mitted to practice before this Court, individually or in

concert with any other person or persons, which violate

the Rules of Professional Conduct adopted by this Court

shall constitute misconduct and shall be grounds for dis-

cipline.” E.D. R.Civ.P. 14(IV) (B). Accord, M.D.Pa.R.P.

304.2; W.D.Pa.R.P. 22(1)(B). Plainly, the language,

purpose, and structure of these local disciplinary rules

do not contemplate the modification of practice outside

the context of defining professional standards for lawyers

appearing before the district courts or establishing meth-

ods by which to adjudicate claimed breaches of those

norms. “[T]he Code [of Professional Responsibility |

does not delineate rules of evidence, but only sets forth

88a

strictures on attorney conduct.” Universal Athletic Sales

Co. v. American Gym, Recreational & Athletic Equip.

Corp., 546 F.2d 530, 539 (3d Cir.1976), cert. denied, 430

U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). Al-

though Rule 3.10 does perhaps implicate “latent” ethical

concerns, United States v. Klubock, 832 F.2d at 653, it

also is a rule of criminal procedure that imposes a con-

comitant restraint on the actions of courts and federal

grand juries. As the Rule and its comment attest, Rule

3.10 is only nominally addressed to the conduct of gov-

ernment attorneys. It requires as a predicate the erec-

tion of novel court procedures and interjects an addi-

tional layer of judicial supervision over the grand jury

subpoena process. It commands the court to evaluate five

factors to ascertain whether service of an attorney sub-

poena is proper. Stated another way, Rule 3.10 initially

creates a rule of criminal procedure that contains evi-

dentiary standards for judicial review and then impresses

an ethical duty upon prosecutors to adhere to that proce-

dure. See Sheridan, Grand Jury Subpoenas to Criminal

Defense Attorneys: Massachusetts Restrains the Federal

Prosecutor Through an “Ethical” Rule, 2 Geo. J. Legal

Ethics 485, 519 (1988). As a matter of principle and

taxonomy, that antecedent component of Rule 3.10 bears

no relation to the interests which animated the adoption

of the local rules of disciplinary enforcement.

Second, the Court takes into account the district courts’

failed attempts to expunge Rule 3.10 from their local

rules. Although infirm, those provisions are instructive

about how the judges viewed the operation of their own

procedures that were in effect before the amendments

were drafted. Cf. Diaz-Villafane, 874 F.2d at 46. The

- Western District’s Order of March 11, 1989 deemed Rule

8.10 both “unreasonable” and “unnecessary” in light of

existing federal law and practice that permit attorneys

to challenge subpoenas after their issuance and service.

Likewise, the Eastern District’s amendment to R.Civ.

P. 14(I1V)(B) reaffirmed the propriety of moving to

39a

quash illegitimate subponeas. This language suggests

that the judges of those Courts considered Rule 3.10 to

be redundant with their procedures at best and incon-

sistent with them at worst. See Dep. of M. Kunz, Nov.

6, 1990, at 30-31 (Def. Mem., Dec. 17, 1990, Ex. A):

Dep. of Hon. D. Ziegler, Nov. 13, 1990, at 17-18, 25

(Def.Mem., Dec. 17, 1990, Ex. E); see also In re Grand

Jury Subpoena Served Upon Doe, 781 F.2d 238, 250 n.

7 (2d Cir.) (in bane), cert. denied, 475 U.S. 1108, 106

S.Ct. 1515, 89 L.Ed.2d 914 (1986). It further betrays

the fair amount of irony embedded in the Disciplinary

Board’s position. The defendant contends, correctly

enough, that the exemptions are invalid for lack of ap-

propriate notice and opportunity to comment. Yet it

goes on to argue that as a consequence the district courts

have adopted the more imposing and far-reaching altera-

tion of practice represented by Rule 3.10, even though

that toc was done without notice or comment in the

district courts and even though those amendments simply

endeavored to state expressly what is implicit in the local

rules and in the Federal Rules of Criminal Procedure.

Third, engrafting Rule 3.10 onto the three district

eourts’ local disciplinary rules would place them in con-

flict with Federal Rule of Criminal Procedure 6(e), as

supplemented by local rules calculated to protect the

secrecy of grand jury proceedings. E.D.Pa.R.Crim.P. 4

& 12; M.D.Pa.R. 117 & 120; W.D.Pa.R. 32. Rule 6(e)

generally prohibits disclosure of “matters occurring be-

fore the grand jury.” See In re Grand Jury Investiga-

tion (DiLoreto), 903 F.2d 180, 181-82 (3d Cir.1990) > In

re Grand Jury Matter (Catania), 682 F.2d 61, 63-64 (3d

Cir.1982) ; In re Grand Jury Investigation (Appeal of

New Jersey State Comm’n of Investigation), 630 F.2d

996, 1000 (3d Cir.1980), cert. denied sub nom. Ritten-

house Consulting Enter. Ltd. v. New Jersey State Comm’n

of Investigation, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d

805 (1981). This policy of secrecy, which is “older than

our Nation itself,” Pittsburgh Plate Glass Co. v. United

40a

States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1241, 3 L.Ed.2d

1323 (1959), and which is integral to maintaining “the

proper functioning of our grand jury system,” Douglas

Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99

S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979), is not to be

abridged lightly. “In the absence of a clear indication in

a statute or Rule, we must always be reluctant to con-

clude that a breach of [grand jury] secrecy has been

authorized.” United States v. Sells Eng’g, Inc., 463 U.S.

418, 425, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983).

Accord Illinois v. Abbott & Associates, Inc., 460 U.S. 557,

572, 103 S.Ct. 13856, 1364, 75 L.Ed.2d 281 (1983) (“Con-

gress, of course, has the power to modify the rule of

secrecy by changing the showing of need required for par-

ticular categories of litigants. But the rule is so impor-

tant, and so deeply-rooted in our traditions, that we will

not infer that Congress has exercised such a power with-

out affirmatively expressing its intent to do so.’’); Pitts-

burgh Nat’l Bank v. United States, 771 F.2d 73, 77 (3d

Cir.1985). Preserving the confidentiality of grand jury

proceedings furthers several ends. It prevents the flight

of those who might be indicted, allows “the utmost free-

dom to the grand jury in its deliberations,’ guards

against witness and jury tampering, facilitates “free and

untrammeled disclosures by person who have information

with respect to the commission of crimes,” United States

v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78

S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958) (quoting

United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.

1954)), and ensures that “persons who are accused but

exonerated by the grand jury” are not stigmatized for

having been the focus of a criminal investigation or other-

wise subjected to public ridicule. Douglas Oil Co., 441

U.S. at 219, 99 S.Ct. at 1678.

In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090,

41 L.Ed.2d 1039 (1974), the Supreme Court held that a

trial subpoena duces tecum issued under Federal Rule

of Criminal Procedure 17(c) is not “unreasonable or

4la

oppressive” if the party seeking to avoid quashal estab-

lishes three elements: relevancy, admissibility, and spe-

cificity. 7d. at 699-700, 94 S.Ct. at 3103. Stated more

fully, the party resisting the motion to quash or modify

the trial subpoena must demonstrate that the documents

sought are “evidentiary” and “relevant,” that they are

“not otherwise procurable reasonably in advance of trial

by exercise of due diligence,” that the party “cannot prop-

erly prepare for trial’ without prior production of the

documents, and that “the application is made in good

faith and is not intended as a general ‘fishing expedi-

tion.”” Jd. The requisites to judicial approval of grand

jury subpoenas enunciated in Rule 3.10 substantially

overlap with, and indeed are more exacting than those

developed in Nixon. The commentary to Rule 3.10 indi-

cates that a court ordinarily should not authorize the

service of a grand jury subpoena directed to an attorney

unless it finds that the information sought is “relevant

to the proceeding,” that there is ‘no other feasible alter-

native” avenue by which to obtain the information, that

compliance with the subpoena would not be “unreasonable

or oppressive,” that the purpose of the subpoena is “not

primarily to harass” the attorney or his or her client,

and that the evidence is not protected by Professional

Conduct Rule 1.6, privilege, or the work product doctrine.

The Supreme Court specifically has forbidden applica-

tion of the Nixon test to grand jury subpoenas, however,

because it impairs the “strict secrecy’ in which Rule

6(e) cloaks grand jury proceedings. United States v.

R. Enterprises, Inc., U.S. . , 111 S.Ct. 722,

726-27, 112 L.Ed.2d 795 (1991). “Requiring the Gov-

ernment to explain in too much detail the particular rea-

sons underlying a subpoena threatens to compromise ‘the

indispensable secrecy of grand jury proceedings.’ Broad

disclosure also affords the targets of investigation far

more information about the grand jury’s internal work-

ings than the Rules of Criminal Procedure appear to con-

42a

template.” Jd. at ——, 111 S.Ct. at 727 (quoting United

States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238,

87 L.Ed. 1546 (1943)). Accord In re Grand Jury Sub-

poena Served Upon Doe, 781 F.2d at 248 (compelling

Government to make preliminary showing that it has

need for evidence sought by subpoena and that attorney

is only source of that evidence “would seriously jeopardize

the secrecy” of grand jury proceedings) ; Matter of Sina-

dinos, 760 F.2d 167, 170 (7th Cir.1985). Rule 3.10 suf-

fers from this infirmity even more acutely. It does

not merely force the Government to disgorge the same

type of information that the Supreme Court has deemed

to endanger the integrity of the grand jury process. It

further requires the disclosure of additional matters and

mandates that this be done in every instance in which a

subpoena commands an attorney to give evidence about a

client and before the subpoena may even be served.”

Because Rule 3.10 does not provide explicitly whether

judicial review necessitates an ex parte or an adversary

hearing, one answer to the foregoing objection might be

that it requires only the former, which perhaps would

diminish the peril of unauthorized disclosure. That con-

struction of the Rule gives rise to other difficulties. “The

value of a judicial proceeding .. . is substantially diluted

where the process is ex parte because the court does not

have available the fundamental instrument for judicial

judgment: an adversary proceeding in which both parties

2 The defendant contended at oral argument that whether Rule

3.10 constitutes an impermissible burden on the federal grand

jury is a question of fact precluding the entry of summary judg-

ment in favor of the plaintiffs. That is not so. The issue here—

as in R. Enterprises, In re Grand Jury Matter (Backiel), 906 F.2d

78 (3d Cir.), cert. denied, —— U.S. ——, 111 S.Ct. 509, 112 L.Ed.2d

521 (1990), and the other cases discussed in the text—is whether

the pre-service judicial screening mechanism and the particular

legal standards used to test the propriety of grand jury subpoenas

are consistent with the Federal Rules of Procedure, privilege law,

and the historic function of the grand jury. As the caselaw amply

demonstrates, the bulk of Rule 3.10 is at odds with all three.

43a

may participate.” Carroll v. Princess Anne, 393 U.S. 175,

183, 89 S.Ct. 347, 352-53, 21 L.Ed.2d 325 (1968). Accord

Nixon, 418 U.S. at 709, 94 S.Ct. at 3108 (“The need to

develop all relevant facts in the adversary system is both

fundamental and comprehensive. The ends of criminal

justice would be defeated if judgments were to be founded

on a partial or speculative presentation of the facts.’”).

Thus, unless decisionmaking transpires in an adversarial

(although presumably in camera) setting, the procedure

established under Rule 3.10 would not be able to supply

courts with an adequate record upon which to render a

meaningful decree or achieve its goal of extending “[a]ny

non-illusory, actual protection” to attorneys and their

clients. Sheridan, supra, 2 Geo. J. Legal Ethics at 498;

see Stern & Hoffman, supra, 136 U.Pa.L.Rev. at 1824.

Moreover, to authorize service of an attorney subpoena

under Rule 3.10, the court must conclude that the infor-

mation sought is not shielded from disclosure by Rule

1.6, privilege, or the work product doctrine. In many

cases, only the attorney who is the subject of the sub-

poena or her client will be in custody of the facts needed

to make those determinations. See United States v. Bump,

605 F.2d 548, 551 (10th Cir.1979); United States v.

Alvarez, 519 F.2d 1036, 1047 (3d Cir.1975); Weiner,

Federal Grand Jury Subpoenas to Attorneys: A Proposal

for Reform, 23 Am.Crim.L.Rev. 95, 107 (1985). Exclud-

ing the subpoenaed lawyer from the hearing also effec-

tively would shift to the Government the burden of prov-

ing to the court’s satisfaction the elaborate negative that

the materials or information sought are not covered by

the attorney-client privilege. See Alvarez, 519 F.2d at

1047; United States v. Bump, 605 F.2d at 551; In re

Grand Jury Investigation (Sun Co.), 599 F.2d 1224,

1233-35 (3d Cir. 1979). That, of course, may not be done.

See R. Enterprises, US. at , 111 S.Ct. at 728;

Matter of Walsh, 623 F.2d 489, 493 (7th Cir.), cert.

denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291

(1980); United States v. (Under Seal), 748 F.2d 871,

44a

876 (4th Cir.1984) ; In re Grand Jury Empanelled Febru-

ary 14, 1978 (Markowitz), 603 F.2d 469 (3d Cir.1979).

In any event, whether applications for approval of

attorney subpoenas are submitted ex parte or are subject

to adversarial testing, Rule 3.10 is nevertheless incom-

patible with the historic powers and function of the grand

jury in two respects. First, the Supreme Court’s addi-

tional reason for declaring that the Nixon standard can-

not be imported into the grand jury context equally for-

bids Rule 3.10’s incorporation into federal procedure.

“The multifactor test announced in Nixon would invite

procedural delays and detours while courts evaluate the

relevancy and admissibility of documents sought by a

particular subpoena. We have expressly stated that

grand jury proceedings should be free of such delays.”

Rk. Enterprise, Inc., U.S. at , 111 8.Ct. at 726-

27. Because the effectiveness of the criminal justice sys-

tem often “hinges on swift action,” H.R.Rep. No. 1064,

96th Cong., 2d Sess. 12 (1980), disruption of the grand

jury process is far from an idle concern. When the grand

jury is “investigating crimes such as highly mobile drug

trafficking or ongoing crimes which endanger the health

and safety of the public,” the imposition of delay “may

be intolerable.” Jd. By commanding a more searching

inquiry than Nixon does and ordaining that review be

undertaken without motion, Rule 3.10 would engender

interruptions of substantially greater duration and fre-

quency than those condemned by the Court. Indeed, be-

cause Rule 3.10 does not and cannot displace the pro-

cedure to quash subpoenas duces tecum established by

Fed.R.Crim.P. 17, subpoenas may be twice reviewed by

courts before the grand jury is allowed to consider the

evidence it seeks.’

8 A court’s prior determination that a grand jury subpoena meets

the standards of Rule 3.10 would preclude relitigation of the con-

troversy during a later Rule 17(c) motion only if the attorney

to whom the subpoena is addressed was permitted to take part in

45a

Second, by interposing impermissible substantive re-

straints on the grand jury’s ability to gather evidence,

Rule 3.10 subverts the authority and autonomy of the

grand jury system. As the Supreme Court has explained:

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