Tom Wolfe famously quoted Judge Sol Wachtler's opinion that a grand jury would "indict a ham sandwich" in The Bonfire of the Vanities. The relative ease of grand jury indictments could be attributed to the fact that very little evidence is safe from a grand jury subpoena.
But can a grand jury subpoena records from an investigation subject's lawyer?
The answer, according the First Circuit Court of Appeals, depends on the nature of the requested records.
This week, the First Circuit issued an opinion in In Re Grand Jury Subpoena (Mr. S.), finding that a district court properly refused to quash a grand jury subpoena for real estate records from a subject's attorney.
In 2009, a federal grand jury in Maine subpoenaed records relating to a real transaction involving Mr. S from the Doe Law Office.
Doe received Mr. S.'s verbal consent to hand over the records, but Mr. S. later changed his mind and argued that the documents were privileged. Mr. S. filed a motion to quash the subpoena.
Mr. S. principally argued that the subpoenaed documents were protected by the attorney-client privilege. He also argued that if the subpoenaed documents had been in his possession, the act of production would have been testimonial and, thus, protected by a Fifth Amendment privilege. Due to the privilege, he claimed the government could not compel Doe to produce the documents over his objection.
The First Circuit Court of Appeals disagreed.
There are three notable exceptions to the grand jury subpoena power that Mr. S. asserted in his motion to quash:
- An individual may invoke the attorney-client privilege to avoid the production of documents that are fruits of confidential communications between him and his attorney.
- An individual may assert the Fifth Amendment if the act of production is both testimonial and self-incriminating.
- An individual who transfers privileged documents to his attorney to obtain legal advice may assert the attorney-client privilege to protect the documents.
The court refused to apply attorney-client privilege to the documents in question because the subpoenaed documents -- HUD statements, closing statement, sales contracts, and records of payment indicating the source and type of funds used -- would all have been revealed at the closing and were not confidential in nature.
In response to Mr. S.'s Fifth Amendment argument, the court ruled that an individual's Fifth Amendment privilege is not offended by the enforcement of process directed toward a third party -- even if that third party is his lawyer.
Finally, the First Circuit Court of Appeals concluded that Mr. S could not prove that the documents were privileged because he failed to establish that any documents were tendered to Doe for the purpose of obtaining legal advice.
This case doesn't mean that attorneys should relinquish client records at the drop of a grand jury subpoena; your client has a right to challenge the subpoena. This holding can, however, help you provide your client with reasonable expectations regarding the outcome of a motion to quash.