In re Grand Jury Testimony of Attorney X

United States District Court for the Eastern District of New York · Evidence

EvidenceAttorney-client privilegeJoint defense privilegeWork product doctrineGrand juryattorney-client privilegejoint defense privilegework product

Facts

A grand jury in the Eastern District of New York was investigating alleged crimes connected to the Lucchese organized crime family, including a Sullivan County bonds transaction. The government obtained evidence that Attorney X's client was involved in that transaction and was now investigating whether the client intentionally obstructed the investigation. The government sought to ask Attorney X whether a third person told him that the grand jury was investigating the bonds deal, that the client's name had come up, and that William Barone appeared to be a target, and whether Attorney X relayed that information to his client. The client claimed those communications were protected by attorney-client privilege, joint defense privilege, work product, and a heightened need requirement for calling an attorney before a grand jury.

Issue

May the government compel an attorney to testify before a grand jury about nonconfidential information he received from a third party concerning a grand jury investigation and then conveyed to his client, despite claims of attorney-client privilege, joint defense privilege, work product protection, and a special showing of need?

Rule

Attorney-client privilege primarily protects confidential communications from client to attorney; an attorney's communication to a client is privileged only if it would reveal confidential client information or itself consists of legal advice. When an attorney acts merely as a conduit for nonconfidential information, neither attorney-client privilege nor joint defense privilege applies. The work product doctrine protects materials reflecting counsel's mental impressions and litigation preparation, but factual communications that do not reveal such mental processes and are sought to establish what a client knew and when he knew it may be compelled, especially where intent is at issue and the information is not otherwise available from testimony that would establish the client's knowledge.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal grand jury in Chicago is investigating bid-rigging in municipal paving contracts. Lawyer Dana Mercer receives a call from another attorney, who says that the grand jury is examining a contract involving Dana's client, Leo Santos, and that Leo's name was mentioned; Dana then tells Leo exactly that and nothing more.

The prosecutor subpoenas Dana to ask whether she was told about the investigation and whether she relayed that information to Leo. Leo objects on attorney-client privilege grounds. How should the court rule?

Explanation. Attorney-client privilege primarily protects confidential communications from client to attorney. An attorney's communication to a client is privileged only if it would reveal confidential client information or itself constitutes legal advice. Where the attorney is merely a conduit for nonconfidential information, privilege does not apply, even if the information may incriminate the client. The subpoenaed questions seek factual notice and transmission, not legal advice. (Derived from In re Grand Jury Testimony of Attorney X (n.d.).)