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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 984

## Text

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QGo- 1021 i DEC. 14 woz

No. 92———

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4

IN THE
Supreme Court of the United States

OCTOBER TERM, 1992

THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA,
Petitioner.
Ve

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)

li
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

i

A.

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)

~

~]

11

14

I].

IT.

iv
TABLE OF CONTENTS—Continued

1. Numerous Non-Ethical Local Rules Are
Subject to Invalidation Under the Court

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

16

19

29

on 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:

Traditionally, the grand jury has been accorded wide
latitude to inquire into violations of criminal law.
No judge presides to monitor its proceedings. It de-
liberates in secret and may determine alone the
course of its inquiry. The grand jury may compel
the production of evidence or the testimony of wit-
nesses as it considers appropriate, and its operation
generally is unrestrained by the technical procedural
and evidentiary rules governing the conduct of crim-
inal trials. “It is a grand inquest, a body with pow-
ers of investigation and inquisition, the scope of
whose inquiries is not to be limited narrowly by
questions of propriety or forecasts of the probable
result of the investigation, or by doubts whether any
particular individual will be found properly subject
to an accusation of crime.”’

United States v. Calandra, 414 U.S. 338, 349-50, 94 S.Ct.
613, 620-21, 38 L.Ed.2d 561 (1974) (quoting Blair v.
United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63
L.Ed. 979 (1919)). Accord Sells Eng’g, Inc., 463 U.S.
at 423, 103 S.Ct. at 3137 (stating that the grand jury
“has always been extended extraordinary powers of in-
vestigation and great responsibility for directing its own
efforts.”) ; United States v. Mandujano, 425 U.S. 564,
571, 96 S.Ct. 1768, 1774, 48 L.Ed.2d 212 (1976); Pitts-
burgh Plate Glass Co., 360 U.S. at 399-400, 79 S.Ct. at
1241; In re Grand Jury Matter (Appeal of District Coun-
cul 33), 770 F.2d 36, 40 (3d Cir.) (referring to the “tre
mendous breadth of the grand jury’s investigatory pow-
ers.”), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88
L.Ed.2d 558 (1985). Of course, Rule 3.10 does not pur-

the first set of proceedings. Allowing the attorney to do so, how-

46a

port to visit any burdens squarely on the grand jury.
Yet, by hampering the prosecutor who serves as its pri-
mary agent and advisor, the Rule does so by indirection.
“The prosecutor ordinarily brings matters to the atten-
tion of the grand jury and gathers the evidence required
for the jury’s consideration. Although the grand jury
may itself decide to investigate a matter or to seek cer-
tain evidence, it depends largely on” the United States
Attorney’s office “to secure the evidence or witnesses it
requires,” Sells Eng’g, Inc., 463 U.S. at 430, 103 S.Ct.
at 3141, and to “draw up and supervise the execution of
subpoenas.” Jd. at 480 n. 18, 103 S.Ct. at 3141 n. 13;
see United States v. Martino, 825 F.2d 754, 761 (3d
Cir.1987) ; Doe v. DiGenova, 779 F.2d 74, 80 (D.C.Cir.
1985); In re Grand Jury Proceedings (Schofield I), 486
F.2d 88, 90 (3d Cir.1973). Depriving the grand jury
of this vital assistance doubtless would render it “much
less effective’ in performing its essential tasks, Sells
Eng’g, Inc., 463 U.S. at 4380, 103 S.Ct. at 3141, for
“without thorough and effective investigation, the
grand jury would be unable either to ferret out crimes
deserving of prosecution, or to screen out charges not
warranting prosecution.” Jd. at 424, 103 S.Ct. at 3138.

The Third Circuit has expressed strong disapproval of
virtually every aspect of Rule 3.10. In Jn re Grand Jury
Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973), a
prospective witness had refused to comply with a grand
jury subpoena. The United States filed an application to
enforce the subpoena under 28 U.S.C. § 1826(a), which
constituted its only means to exact compliance. The
Court held that- when a district court is moved to issue
coercive process under that section, it should require the
Government to make a minimum showing by affidavit
that the information demanded is relevant to an investi-
gation properly within the grand jury’s jurisdiction and
is not sought primarily for another purpose. 7d. at 93.
Accord In re Grand Jury Proceedings (Schofield II), 507
F.2d 963, 966 (3d Cir.), cert. denied, 421 U.S. 1015, 95

47a

S.Ct. 2424, 44 L.Ed.2d 685 (1975). The Third Circuit
has made clear, however, that Schofield I “did not deal
with procedural safeguards surrounding the issuance of
grand jury subpoenas,” United States v. Oliva, 611 F.2d
23, 25 (3d Cir.1979), and did “not purport to encompass
the appropriateness of an appearance before the grand
jury.” In re Grand Jury Proceedings (Appeal of Me-
Nabb), 658 F.2d 211, 218 (8d Cir.1981) (emphasis in
original). Rather, because Schofield I addressed “the
procedure appropriate to enforcement proceedings,” it is
the Government’s initiation of an action under section
1826(a) or the filing of a motion to quash under Rule 17,
“not the issuance of the subpoena” itself, that comprises
“the triggering event for the affidavit requirement.”
Oliva, 611 F.2d at 25. Accord McNabb, 658 F.2d at 215
& n.3; Appeal of Hughes, 633 F.2d 282, 287 (3d Cir.
1980). Further, the Schofield regime, unlike Rule 3.10,
does “not intend to impede the grand jury process by re-
quiring hearings in every case,” Schofield IJ, 507 F 2d at
966, and it plainly does not impose the same magnitude
of encumbrances on the grand jury or the Government as
Rule 3.10 does. See Backiel, 906 F.2d at 87-88: McNabb,
658 F.2d at 214-15.

Thus, in McNabb, the Third Circuit rejected a contem-
nor’s assertion that he could not be compelled to appear
and testify before a grand jury until the Government had
made an initial Schofield-type showing of reasonableness,
relevance, and propriety. After stating that a putative
witness cannot invoke the protections of Schofield before
he or she has even shown up to testify, 658 F.2d at 213,
the Court labelled McNabb’s suggested series of require-
ments “dysfunctional” because their imposition threat-
ened to “invert” the entire investigatory process by fore-
ing the grand jury “to furnish answers to its questions
before it could ask them.” Jd. at 214. The panel con-
cluded that “{i]nasmuch as grand juries are subject to
judicial control and subpoenas can be challenged by mo-
tions to quash, any further requirement that would saddle

isa

a grand jury with preliminary showings to procure at-
tendance would unnecessarily impede its investigation
and frustrate the public’s interest in the fair and expedi-
tious administration of the criminal laws.”’ /d. at 214-15.
Rule 3.10, however, does precisely that which McNabb
forbids. It mandates that before a grand jury subpoena
may be served on an attorney, the district court must
find, among other things, that the attorney’s expected
testimony or evidence is relevant to the grand jury’s in-
vestigation and is not sought primarily for an improper
purpose.

In Jn re Grand Jury Matter (Backiel), 906 F.2d 78
(3d Cir.), cert. dened, —— U.S. ——, 111 S.Ct. 509,
112 L.Ed.2d 521 (1990), the Third Circuit held that com-
pelling the Government to show that the subpoenaed at-
torney is the only practical source of the information de-
manded by the grand jury—which Rule 3.10 explicitly
imposes aS a precondition to approval of service—and
that there is a heightened need for the evidence—which is
Rule 3.10’s overall effect—would “obviously impair the
efficiency of grand juries. Such a requirement would
bring investigators to intermittent standstills as the gov-
ernment set out to prove the necessity of each piece of
information it sought to obtain.” /d. at 88 (quoting /n re
Grand Jury Proceedings, 862 F.2d 4380, 431-32 (2d Cir.
1988)). The panel also noted that potential witnesses or
sources of evidence would be less inclined to cooperate if
they knew that either the information they impart or
their identities might be disclosed by the Government in
its effort to satisfy these additional requisites. J/d.; see
Hughes, 633 F.2d at 287. In explaining its disapproba-
tion of the “no feasible alternative” criterion the Court
stated, “The grand jury cannot be constrained to acquire
only the minimum evidence necessary to secure an indict-
ment and is free to pursue cumulative leads. . .. How
much information is ‘enough’ is a matter for the judg-
ment of the grand jurors and the prosecution rather than
the court.”” Backiel, 906 F.2d at 88. Accord In re Grand

19a

Jury Investigation (Tinari), 631 F.2d 17, 19-20 (3d Cir.
1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66
L.Ed.2d 808 (1981); In re Grand Jury Empanelled May
7, 1987, Mise. No. 87-165. 1989 WL 72260, slip op.
(D.N.J. June 28, 1989) ; Cf. United States v. lionisio,
410 U.S. 1, 15, 93 S.Ct. 764, 772, 85 L.Ed.2d 67 (1973)
(“No grand jury witness is entitled to set limits to the
investigation that the grand jury may conduct.’”). The
reasons for this are not hard to divine. The judiciary is
poorly equipped to anticipate with any precision What a
subpoenaed attorney will say before he or she testifies,
the relative importance of the evidence sought for the
grand jury’s consideration, or whether that information
can be secured from a source other than the attorney,
Sinadinos, 760 F.2d at 170, particularly if the reviewing
court must labor to do so without the benefit of a factual
record developed in an adversary setting. A concerted
effort by the courts to inquire into these matters would
cause substantial delays in the progress of criminal! in-
vestigations. J/d.: Weiner, supra, 23 Am.Crim.L.Rev. at
121. And, as one court has observed, the grand jury is
not required to guess at its peril the exact moment when
it has acquired a sufficient quantum of evidence to indict
and therefore cease its investigation. Sinadinos, 760
F.2d at 170-71.

Every other Court of Appeals but one has declined to
permit, as inconsistent with the mission of the grand
jury or otherwise contrary to federal law, the application
of conditions on subpoenas similar those imposed by Rule
3.10. For example, in In re Grand Jury Subpoena Served
Upon Doe, 781 F.2d 238 (24d Cir.) (in bane), cert. de-
nied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914
(1986), which the Third Circuit quoted with approval in
Backiel, 906 F.2d at 87-88, the Second Circuit held that
creating the “additional requirements that the govern-
ment show its need for the information sought and that
the attorney is the only source of that information” be-
fore a court may validate an attorney subpoena “would

50a

hamper severely the investigative function of the grand
jury, if not stop the grand jury ‘dead in its tracks.’”’
781 I'.2d at 248. Supreme Court precedent, the Court of
Appeals stated, has admonished against compelling the
Government to tender “a preliminary showing of need,
and unavailability of other sources” precisely because it
risks an “unacceptable interruption” of the grand jury
process. /d. at 248-49 (citing Dionisio, 410 U.S. at 17
n. 16, 93 S.Ct. at 773 n. 16). Accord In re Grand Jury
Matter, 926 F.2d 348, 350 (4th Cir.1991); In re Grand
Jury Subpoena for Attorney Representing Reyes-
Requena, 913 F.2d 1118, 1127, 1129 (5th Cir.1990) ; Jn
re Grand Jury Subpoenas (Anderson), 906 F.2d 1485,
195-96 (10th Cir.1990); In re Grand Jury Proceedings,
862 F.2d at 481-32; United States v. Perry, 857 F.2d
1346, 1347-49 (9th Cir.1988); Jn re Grand Jury Pro-
ceedings, 791 F.2d 668, 665-66 (8th Cir.1986) ; Matter of
Klein, 776 F.2d 628, 682-86 (7th Cir.1985); Sinadinos,
760 F.2d at 170-71; In re Grand Jury Proceedings
(Weiner), 754 F.2d 154, 156 (6th Cir.1985); United
States v. Morchower, 718 F.2d 1093 (4th Cir.1983) (un-
published opinion summarized in Doe, 781 F.2d at 247
n. 4); In re Grand Jury Proceedings (Freeman), 708
F.2d 1571, 1575 (11th Cir. 1983); Walsh, 623 F.2d at
492-93. The only opinion to the contrary in this respect,
the equally divided in bane decision of the First Circuit
in Klubock, is an orphan in the federal system, and it
will not find a relative here.

Further, Rule 3.10 dramatically expands the scope of
privilege protections for attorneys and their clients in
defiance of the canon that the grand jury’s right to evi-
dence is substantively limited only by express constitu-
tional, common law, or statutory privileges. Branzburg
v. Hayes, 408 U.S. 665, 688, 707-08, 92 S.Ct. 2646, 2660,
2669-70, 33 L.Ed.2d 626 (1972); United States v. Bryan,
339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) ;
Matter of Grand Jury Impaneled Jan. 21, 1975, 541 F.2d
373, 379, 382 (38d Cir. 1976). As Federal Rule of Evi-

5la

dence 501 directs, “[T]he privileges of a witness
shall be governed by the principles of the common law as
they may be interpreted by the courts of the United States
in light of reason and experience.” The purpose of the
attorney-client privilege, “the oldest of the privileges for
confidential communications known to the common law,”
Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct.
677, 682, 66 L.Ed.2d 584 (1981), is “to encourage clients
to make full disclosure to their attorneys” so that they
can render accurate legal counsel. Fisher v. United
States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d
39 (1976). Under the standard definition of the priv-
ilege, when legal advice of any kind is sought from a pro-
fessional legal advisor in her capacity as such, the com-
munications relating to that purpose made in confidence
by the client are at his instance permanently protected
from disclosure by himself or counsel, unless the protec-
tion has been waived. United States v. Rockwell Int’l,
897 F.2d 1255, 1264 (3d Cir. 1990).

In Matter of Walsh, 628 F.2d 489 (7th Cir.), cert.
denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291
(1980), the Seventh Circuit considered a district court
ruling that had placed on the Government requirements
virtually indistinguishable from those articulated in Rule
8.10. The district court had held that before an attorney
could be compelled to appear before a grand jury, the
Government must demonstrate that the information de-
manded by the subpoena is not insulated from disclosure
by attorney-client privilege or the work product doctrine,
that there is a particularized need for the testimony or
documents sought, that no other source for the evidence
is available, and that the information is material. Jd. at
492. In reversing, the Court of Appeals declared this
matrix of restrictions, which the district court had made
“available to no other [class of] grand jury witness,”
constituted an impermissible constriction of the grand
jury’s authority and an undue expansion of the attorney-
client privilege. Jd. at 493. The Court wrote:

52a

No privilege, no matter how central to our system of
justice, has been held to excuse the “obligation of
every person to appear and give his evidence before
the grand jury.” Instead, the interest in preserving
confidences and the interest in pursuing the public’s
right to “every man’s evidence” are accommodated.
To that end, the witness must take the stand and
answer or refuse to answer individual questions. .
[Wlere we to afford attorneys the right to refuse to
appear before grand juries, we would be granting a
protection far greater than the parameters of the
[attorney-client] privilege.

Id. (quoting United States v. Dionisio, 410 U.S. at 9-10,
93 S.Ct. at 769). Accord Reyes-Requena, 913 F.2d at
1129 (“[J]udicial attempts to regulate attorney appear-
ances before the grand jury would tend to create exemp-
tions beyond matters of privilege and constitutional limi-
tations and would transgress the command of Branz-
burg.”) ; Klubock, 832 F.2d at 669-70 (Levin, J., dissent-
ing); see Backiel, 906 F.2d at 87-88; Grand Jury Sub-
poena. Served Upon Doe, 781 F.2d at 249.

The Walsh Court’s reasoning is in line with the over-
whelming weight of authority that a witness who is sub-
poenaed to produce documents or testify cannot simply
decline to do so altogether on the basis of privilege, but
rather must assert the privilege document by document
or in response to specific questions. Rockwell Int’l, 897
F.2d at 1265; Matter of Certain Complaints Under In-
vestigation, 783 F.2d 1488, 1518 (11th Cir.) (citing mul-
tiple cases), cert. denied sub nom. Hastings v. Godbold,
477 U.S. 904, 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986) ;
Klein, 776 F.2d at 634-35; United States v. First State
gank, 691 F.2d 332, 335 (7th Cir. 1982). “Otherwise, a
court would be forced to attempt to determine the exist-
ence, application, and scope of an asserted privilege in
ignorance of the context in which it is alleged to apply.”
Certain Complaints Under Investigation, 783 F.2d at

53a

1518. Walsh’s rejection of the district court’s detailed
guidelines for attorney subpoenas also is consistent with
the precept that because the attorney-client privilege and
the work product doctrine obstruct the search for truth
and generate benefits that are, “at best, indirect and
speculative,” they must be “strictly confined within the
narrowest possible limits consistent with the logic of
[their] principle[s].” In re Grand Jury Investigation
(Sun Co.), 599 F.2d at 1235. Accord In re Grand Jury
Proceedings (FMC Corp.), 604 F.2d 798, 802-03 (3d Cir.
1979) ; In re Grand Jury Investigation, 557 F.Supp. 1053,
1055 (E.D.Pa. 1983).

Of more immediate concern, if the district courts have
adopted Rule 3.10, then they have conferred on attorneys
not only a protection that exceeds the bounds of recog-
nized privileges, but also one that constitutes an almost
impregnable immunity from ever testifying or producing
documentary evidence regarding their clients. Rule 3.10
dictates that before a court may allow the service of a
grand jury subpoena addressed to an attorney, it must
find that the information sought “is not protected from
disclosure by Rule 1.6” of Pennsylvania’s Rules of Pro-
fessional Conduct. Rule 1.6 is a confidentiality provision
and states that “[a] lawyer shall not reveal information
relating to representation of a client unless the client
consents after consultation.” There are exceptions to this
broad ethical obligation. For instance, it does not extend
te disclosures impliedly authorized in order to represent
the client, or those necessary to prevent certain criminal
or fraudulent acts or to comply with Rule 3.3, which
requires that lawyers act with candor toward tribunals.
Pa.Rules of Professional Conduct Rule 1.6(a)-(¢) (2).

Although the duty to keep client information confiden-
tial and the attorney-client privilege stem from similar
policy considerations, the former is substantially broader
than the latter. See, e.g., S. Gillers & N. Dorsen. Regula-
tion of Lawyers 287-88 (1985); G. Hazard & S. Koniak.

54a

The Law and Ethics of Lawyering, ch. 4 (1990); Subin,
supra, 70 Iowa L.Rev. at 1112-18, 1145; Zacharias, Re-
thinking Confidentiality, 74 Iowa L.Rev. 351, 355 n. 18,
363 n. 55 (1989); cf. Universal Athletic Sales Co., 546
F.2d at 539. In particular, while the attorney-client privi-
lege extends only to confidences learned from the client,
Rockwell Int'l, 897 F.2d at 1264; In re Grand Jury Pro-
ceedings, 791 F.2d at 665; 8 J. Wigmore, Evidence § 2317,
at 618-19 (J. McNaughton rev. 1961), the ethical prohibi-
tion against disclosure generally applies no matter what
the source of information about the client. The commen-
tary to Rule 1.6 underscores this: “The confidentiality
rule applies not merely to matters communicated in confi-
dence by the client but also to all information relating to
the representation, whatever its source. A lawyer may
not disclose such information except as authorized or re-
quired by the Rules of Professional Conduct or other
law.” (Emphasis added). Of course, the responsibility
to safeguard client secrets is an important, time-honored
one and is not in itself objectionable. Rule 3.10, however,
converts the confidentiality rule into a legal mandate,
that is, a privilege, because it requires the court to with-
hold altogether approval of a subpoena directed to an
attorney if the information sought “relate[s] to repre-
sentation of [the attorney’s] client,” unless the client
consents after consultation or unless one of four exceptions
is applicable. Apart from simply prohibiting the issuance
or service of subpoenas directed to attorneys under all
circumstances, it would be difficult indeed to invent an-
other linguistic formulation that so grossly distorts cur-
rent notions of evidentiary privilege and is so profoundly
inimical to the traditional configuration of grand jury
authority.

Even if one could harmonize the “new and expanded”
attorney-client privilege created by Rule 3.10, see Klubock,
832 F.2d at 669-70 (Levin, J., dissenting), with the scope
of the grand jury’s powers, it is a modification that most

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55a

assuredly cannot be engineered by the local rule. Reason-
able minds may disagree about the exact contours of dis-
trict court rulemaking authority, but there is no question
that the lower federal courts cannot alter or enhance priv-
ileges in that manner. See Fed.R.Evid. 501; Fed.R.Crim.P.
o7 advisory comm. note (district courts permitted to reg-
ulate “details” of practice) ; Washington-Southern Navi-
gation Co. v. Baltimore & Philadelphia Steamboat Co., 263
U.S. 629, 635, 44 S.Ct. 220, 222, 68 L.Ed. 480 (1924)
(“[N]o rule of court can... abrogate or modify the sub-
Stantive law.”); In re Grand Jury Proceedings, 558
F.Supp. 5382 (W.D.Va. 1983) (“The grant of authority
found in § 2071 allows courts to make ‘rules of practice,’
but not ‘rules of law.’”); ef. Burlington N.R. Co. v.
Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987)
(construing 28 U.S.C. § 2072). Even Federal Rules touch-
ing upon those matters are not valid without Congress’s
blessing. As 28 U.S.C. § 2074(b) clearly prescribes, “Any
such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by
Act of Congress.” See H.R.Rep. No. 422, 99th Cong., 1st
Sess. 22, 23 (1985) (“[S]ection 2074(b) provides that
evidentiary privileges are substantive in nature and may
not be altered except by Act of Congress.” (emphasis
added) ) ; Siegel, Practice Commentary, reprinted in 28
U.S.C.A. foll. § 2074 (1890 Supp.).

To be sure, the authority of the grand jury is not un-
limited, and that body is expected to operate within the
confines of the Constitution and federal law. Butterworth
v. Smith, 494 U.S. 624, , 110 S.Ct. 1876, 1382, 108
L.Ed.2d 572 (1990); Dionisio, 410 U.S. at 11, 98 S.Ct.
764; Branzburg, 408 U.S. at 688, 707-08, 92 S.Ct. at 2660,
2669-70; Silverthorne Lumber Co. v. United States, 251
U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). But, as the
caselaw unambiguously teaches, imposing Rule 3.10’s spe-
cific requirements—that the information demanded by
the grand jury subpoena must not be protected by Pro-
fessional Conduct Rule 1.6, privilege, or the work product

56a

doctrine, that the evidence must be relevant and sought
for a permissible reason, and that the attorney must be
the only source of the information—impairs far too
harshly the Government’s and the grand jury’s vital in-
terests in preserving secrecy, ensuring investigatory flex-
ibility, and preventing procedural delays. Precedent
further dictates the conclusion that Rule 3.10’s_ pre-
service judicial review mechanism itself, whether adver-
sary or ex parte in character, at the least impermissibly
trenches upon important interests in maintaining the
grand jury’s investigatory latitude and avoiding proce-
dural interruptions.

Last, Rule 3.10 cannot be reconciled with Federal Rule
of Criminal Procedure 17, which regulates subpoena prac-
tice. Subdivision (a) provides: “A subpoena shall be is-
sued by the clerk under the seal of the court. ... The
clerk shall issue a subpoena, signed and sealed but other-
wise in blank to a party requesting it, who shall fill in
the blanks before it is served.” In contrast stand sub-
divisions (b), (ce), (f), and (g). There, the drafters
explicitly delineated the court’s role in the subpoena
process. Subdivision (c) empowers a court to “quash or
modify” a subpoena duces tecum “if compliance would be
unreasonable or oppressive.” The court may entertain
an application to quash or modify, however, only after
the subpoena has been served and only “on motion.” Under
subdivision (g), the court may hold in contempt any
individual who, “without adequate excuse,” fails to obey
a served subpoena. Judicial approval as a precondition
to the issuance or service of a subpoena is set forth in
only two instances. 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, without cost to the defendant, “a sub-

poena be issued for service on [the] named witness.” Sub-
division (f), in conjunction with Fed.R.Crim.P. 15, re
quires the entry of a court order before the clerk of court

57a

can issue a subpoena directing the attendance of a witness
at a deposition.

A previous incarnation of Fed.R.Civ.P. 45, the civil
analogue to Fed.R.Crim.P. 17, contained a screening re-
quirement similar to the one erected by Rule 3.10. Prior
to 1946, subdivision (d) (1) necessitated judicial approval
for the issuance of subpoenas commanding the production
of documentary evidence at depositions. See Report of
Proposed Amendments to Rules of Civil Procedure for the
District Courts of the United States, reprinted in 1946
U.S. Code Cong. & Admin.News 2318, 2349. That pro-
vision was stricken, however, as needlessly burdensome
and duplicative of other safeguards. As the Advisory
Committee stated at the time, the precondition of court
approval

is unnecessary and oppressive on both counsel and
court, and it has been criticized by district judges.
There is no satisfactory reason for a differentiation
between a subpoena for the production of documen-
tary evidence by a witness at a trial (Rule 45(a) )
and for the production of the same evidence at the
taking of a deposition. Under this amendment, the
person subpoenaed may obtain the protection afforded
by any of the orders permitted under Rule 30(b) or
Rule 45(b).

Id. Accord Report of the Advisory Committee on Federal
Rules of Civil Procedure Recommending Amendments,
reprinted in 1946 U.S.Code Cong. & Admin.News 2387,
2397.

Rule 17(a), of course, makes no allowance for judicial
involvement in the issuance and service of subpcenas.
Courts have acknowledged this on many occasions, see
United States v. Miller, 425 U.S. 435, 446 n. 8, 96 S.Ct.
1619, 1625 n. 8, 48 L.Ed.2d 71 (1976) (comparing sub-
poenas with search warrants by noting that, unlike the
latter, subpoenas are not subject to prior judicial ap-

58a

proval) ; United States v. Nelson, 852 F.2d 706, 710 (3d
Cir.) (noting that under Fed.R.Crim.P. 17(a) “subpoenas
are issued without meaningful judicial oversight’), cert.
denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250
(1988); Martino, 825 F.2d at 761 (“(jAJlthough grand
jury subpoenas are issued in the name of the district
court over the signature of the clerk, ‘they are issued pro-
forma and in blank to anyone requesting them.’ ... It is
evident that no judge issue(s] the grand jury subpoena
since there is no place for a judge’s signature.” (quoting
Schofield I, 486 F.2d at 90)); id. at 761 n. 4 (“[T]he
court’s actual involvement with the issuance of a grand
jury subpoena is limited to issuing a blank subpoena
bearing the seal of the court.’) ; DiGenova, 779 F.2d at
80 (“While a federal grand jury subpoena is issued
under the authority of a court, the court has no substan-
tive involvement in a particular subpoena unless the sub-
poenaed party challenges it.” (emphasis added)); Jn re
Grand Jury Matters, 751 F.2d 18, 16 (1st Cir.1984) ;
Schofield I, 486 F.2d at 90 (stating the “court exercises
no prior control whatsoever” upon the use of subpoenas),
and, in fact, part of the rationale supporting the Scho-
field affidavit requirement is the judiciary’s utter lack of
control over the grand jury subpoena process until an
action to enforce or motion to quash is filed. Schofield I,
486 F.2d at 90, 92. That pre-service judicial screening
is expressly authorized in subdivisions (b) and (f) of
Rule 17 further suggests that it is not permissible as a
general proposition. These principles, in conjunction with
the drafter’s rejection of pre-issuance judicial approval
under Rule 45 and the great latitude afforded grand jury
investigations, militate toward the conclusion that silence
regarding court intervention cannot be construed as an
invitation to assign judges new functions in the grand
subpoena process. Cf. Miner v. Atlass, 363 U.S. at 651-
52, 80 S.Ct. at 1306-07; Sheridan, supra, 2 Geo. J. Legal
Ethics at 508-09. Indeed, one reason undergirding the
revision of Rule 45 is equally applicable to Rule 17. In-

59a

dividuals to whom subpoenas duces tecum are directed
may seek judicial relief by way of a motion to quash.

The Disciplinary Board posits that because some courts.
even though Rule 17 does not give authority them to, have
considered motions to quash subpoenas ad testificandum.
Rule 17 cannot be read to harbor prohibitions against the
expansion of judicial authority in this area. See United
States v. Klubock, 639 F.Supp. 117, 123 (D.Mass.1986),
affd by equally divided court, 832 F.2d 664, 668 (lst
Cir.1987) (in banc). This contention is flawed. First,
the view that subpoenas ordering an individual to testify
may be quashed is contrary to the weight of opinion, and,
for reasons previously discussed, is not the superior prac-
tice. See supra at 341-42; 344; 2 C. Wright, Federal Prac-
tice and Procedure: Criminal 2d § 273, at 149 & n. 18
(1982 & 1990 Supp.). Second, Rule 17(c) allows courts
to quash improper subpoenas duces tecum, but Rule 17 (a)
unquestionably does not provide for pre-service judicial
screening. There is surely a difference between enlarging
the ambit of a power already explicitly conferred and
creating a new power altogether out of a source that does
not even arguably bestow it. Last, the Disciplinary
Board’s assertion, if sound, simply broadens its dilemma.
Because Rule 3.10 cannot nullify the procedure to quash
subpoenas under Fed.R.Crim.P. 17, then all subpoenas,
not just subpoenas duces tecum, may be twice reviewed
by courts before the grand jury is allowed to secure the
evidence it seeks. As a result, the investigative process
would be subject to even more prevalent delays and dis-
ruptions. See supra 340 & n. 3.

In any event, Rule 3.10 runs afoul with Rule 17 in
another manner considered neither by the Klubock court
nor the defendant. A presumption of regularity attaches
to grand jury subpoenas “issued through normal chan-
nels.” R. Enterprises, U.S. at , 111 S.Ct. at 728.
That presumption, which is expressed in the language of
Rule 17, “generally may be dispelled only upon particu-

60a

larized proof of irregularities in the grand jury process.”
Id. (quoting United States v. Mechanik, 475 U.S. 66, 75,
106 S.Ct. 938, 944, 89 L.Ed.2d 50 (1986) (O’Connor, J.,
concurring in judgment)). Accord Appeal of District
Council 33, 770 F.2d at 40 (“Grand jury proceedings are
entitled to ‘a presumption of regularity.’ Thus, the party
objecting to the enforcement of a grand jury subpoena has
the burden of demonstrating some irregularity in those
proceedings.” (citations omitted) ); Schofield I, 486 F.2d
at 92. In its language and tenor, Rule 3.10 presupposes
the opposite. The Rule forbids the service of a grand jury
subpoena upon an attorney “unless” the court grants its
approval, which in turn must “normally be withheld
unless” the court, after a hearing, is able to find affirm-
atively that certain conditions have been satisfied. No
“narticularized proof of irregularities” is needed to occa-
sion scrutiny of the subpoena. Instead, review is trig-
gered by the bare fact that a prosecute tres to serve
a grand jury subpoena on a lawy¢. vo secure evidence
about the attorney’s client. Inquiry into the propriety of
the subpoena is required in every instance in which that
combination of circumstances arises, without any action
by the lawyer to whom the subpoena is addressed. This
provision of automatic review conflicts with the plain
terms of Rule 17, which allows a person to avoid compli-
ance with a grand jury subpoena “only ‘on motion’” and
only if he or she demonstrates that compliance would be
unreasonable within the meaning of Rule 17(c). R. Enter-
prises, U.S. at , 111 S.Ct. at 728 (emphasis
added). That the individual commanded to produce evi-
dence is a lawyer does not alter the Rule’s operation. In
re Grand Jury Matter, 926 F.2d at 350 (“Attorneys, like
all others, have ‘the initial task of demonstrating .. .
some valid objection to compliance.’” (quoting R. Enter-
prises, U.S. at , 111 S.Ct. at 730 (Stevens, J.,
concurring) ) ).

me ee ee ee ee

6la

B.

Because the district courts implicitly have rejected the
importation of Rule 3.10 into their local rules and because
Rule 3.10 offends federal law, a state entity such as the
Disciplinary Board cannot initiate disciplinary proceed-
ings against federal prosecutors who fail to obtain prior
judicial authorization for grand jury subpoenas when
they are practicing in those courts. See Sperry v. Florida,
373 U.S. 379, 88 S.Ct. 1822, 10 L.Ed.2d 428 (1963);
Silverman v. State Bar of Texas, 405 F.2d 410, 413-415
(5th Cir.1968), on remand, 303 F.Supp. 486 (W.D.Tex.
1969) ; County of Suffolk v. Long Island Lighting Co.,
710 F.Supp. 1407, 1414-15 (E.D.N.Y.1989). It cannot be
doubted that states have a constitutionally permissible and
legitimate interest in regulating attorneys admitted to
their bars and in overseeing the practice of law within
their borders. In re Griffiths, 413 U.S. 717, 728, 98 S.Ct.
2851, 2855, 87 L.Ed.2d 910 (1973); Sperry, 373 U.S. at
383, 83 S.Ct. at 1825; Lowrie v. Goldenhersh, 716 F.2d
401, 408 (7th Cir.1983). Nevertheless, under the suprem-
acy clause of the Constitution, state laws, including disci-
plinary rules, “though enacted in the exercise of powers
not controverted,” must yield when found incompatible
with federal law. Sperry, 373 U.S. at 384, 83 S.Ct. at
1325. Accord Supreme Court of Virginia v. Friedman,
487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988);
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,
105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); NAACP v. But-
ton, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Local rules, no less than Federal Rules or Acts of Con-
gress, are part of the supreme law of the land. See United
States v. Hvass, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d
496 (1958); Weil v. Neary, 278 U.S. 160, 49 S.Ct. 144,
73 L.Ed. 243 (1929); Klubock, 832 F.2d at 651.

There is a conflict between federal and state law when
compliance with the regulations of both sovereigns is a
“physical impossibility” or when the state enactment is

re OE

62a

“an obstacle to the accomplishment and execution of the
full purposes ond objectives” of federal legislation. Hvils-
borough County v. Automated Medical Labs., 471 U.S.
707, 713, 105 S.Ct. 2871, 2375, 85 L.Ed.2d 714 (1985)
Accord Hines U. Davidowitz, 312 US. 52, 67, 61 S.Ct.
399, 404, 85 L.Ed. 581 (1941). Government attorneys
operating in the district courts of Pennsylvania obviously
cannot request and obtain federal judicial approval for
grand jury subpoenas in conformity with Rule 3.10 and
simultaneously refrain from doing so in order to comply
with federal dictates. State enforcement of Rule 3.10
against attorneys for their conduct in the district courts
also would countermand national objectives by requiring
them to act in manner which, as explained earlier at
length, would frustrate the expeditious and just adminis-
tration of the federal criminal laws.
IV.

The Court is not oblivious to the concerns that supplied
the impetus to Rule 3.10’s creation. The wisdom of the
Rule, however, is not at issue here. The state is of course
free to fashion its own procedures so long as it does not
transgress applicable constitutional values. But interpos-
ing the strictures of Rule 3.10 into the federal sphere is
another matter entirely. The Rule cannot be fairly under-
stood to have been integrated into the local rules of the
district courts. It distorts evidentiary privileges, disrupts
existing subpoena practice, and compromises the authority
and function of the modern grand jury. In consequence,
tule 3.10 is without vitality in the district courts of Penn-
sylvania, and the state may not sanction prosecutors who
fail to adhere to it when they are working in those fora.

An order and declaration follow.

63a

ORDER

AND NOW, this 22d day of April, 1991, for the rea-
sons set forth in this Court’s Memorandum dated April
22, 1991;

IT IS ORDERED that Defendant’s Motion for Sum-
mary Judgment is DENIED;

AND IT IS FURTHER ORDERED that Plaintiffs’
motion for Summary Judgment is GRANTED and that,
pursuant to Federal Rule of Civil Procedure 56, judg-
ment is ENTERED in favor of Plaintiffs and against
Defendant;

AND IT IS DECLARED that the United States Dis-
trict 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;

AND IT IS FURTHER DECLARED that, in accord-
ance with the supremacy clause of the United States Con-
stitution, Defendant Disciplinary Board of the Supreme
Court of Pennsylvania, its officers, agents, servants, em-
ployees, and attorneys therefore shall not initiate disci-
plinary proceedings against or sanction any prosecutor or
other government attorney on the ground that the prose-
cutor or other government attorney, when practicing be-
fore the United States District Court for the Western,
Middle, or Eastern District of Pennsylvania, had sub-
poenaed an attorney, without prior judicial approval, to
appear before a grand jury or other tribunal investigat-
ing criminal activity in circumstances where the prose-
cutor or other governmental lawyer sought to compel the
attorney ‘witness to provide evidence concerning a person
who is or has been represented by the attorney/witness.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1805%3A1. Public record. Not legal advice.