Stern v. Supreme Judicial Cou ( 2000 )

United States Court of Appeals
For the First Circuit
No. 99-1839
DONALD K. STERN,
Plaintiff, Appellant,
v.
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morton A. Brody,* U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Donald K. Stern, United States Attorney, with whom David S.
Mackey and Roberta T. Brown, Assistant United States Attorneys,
were on brief, for appellant.
Gael Mahony, with whom E. Randolph Tucker, Michael D. Vhay,
Matthew S. Axelrod, and Hill & Barlow were on brief, for the
federal appellees.
David Rossman for appellee Arnold R. Rosenfeld
(Massachusetts Bar Counsel).
Charles W. Rankin, Rankin & Sultan, and Martin W. Healy on
brief for Massachusetts Bar Association, Boston Bar Association,
and Massachusetts Association of Criminal Defense Lawyers, amici
curiae.
April 12, 2000
_____________
*Of the District of Maine, sitting by designation.
SELYA, Circuit Judge. This appeal tests the limits of
a federal district court's authority to promulgate local rules.
The court below upheld a rule constraining the issuance of
subpoenas seeking client-related information from lawyers in
criminal cases. Because we find that the rule falls outside the
permissible scope of local rulemaking authority, we reverse.
I. BACKGROUND
Before assaying a preliminary question of
justiciability and addressing the controversy's merits, we trace
the origins of the challenged rule and chart the travel of the
case.
A. The Evolution of Local Rule 3.8(f).
The 1980s witnessed a dramatic increase in the number
of subpoenas served on defense attorneys by federal prosecutors.
The reasons for this trend are difficult to pinpoint, but some
commentators have linked it with heightened efforts to fight
organized crime and drug-trafficking, new forfeiture laws, and
an unprecedented expansion of the Department of Justice (DOJ).
See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of
Lawyering § 3.8:701, at 700 (Supp. 1996); Frank O. Bowman, III,
A Bludgeon by Any Other Name, 9 Geo. J. Legal Ethics 665, 686
n.74 (1996). In 1985, mindful that forcing a lawyer to offer
evidence against her client may sow seeds of mistrust and
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increase the incidence of conflicted interests, the DOJ
introduced guidelines for the issuance of attorney subpoenas,
including an internal preapproval process. See United States v.
Perry, 847 F.2d 1346, 1347-48 (9th Cir. 1988) (citing United
States Attorneys' Manual § 9-2.161(a) (July 18, 1985)).
Responding to the prodding of bar leaders, the Massachusetts
Supreme Judicial Court (the SJC) also took prophylactic action.
It adopted an ethics rule, known as Prosecutorial Function 15
(PF 15), which stated that:
It is unprofessional conduct for a
prosecutor to subpoena an attorney to a
grand jury without prior judicial approval
in circumstances where the prosecutor seeks
to compel the attorney/witness to provide
evidence concerning a person who is
represented by the attorney/witness.
S.J.C. R. 3:07, PF 15 (effective Jan. 1, 1986).
The United States District Court for the District of
Massachusetts thereafter incorporated PF 15 into its local
rules. PF 15 withstood the United States Attorney's ensuing
challenge by the narrowest of margins. See United States v.
Klubock, 639 F. Supp. 117 (D. Mass. 1986), aff'd, 832 F.2d 664(1st Cir. 1987) (equally divided en banc). Crucial to the
district court's holding was the fact that PF 15 imposed no
substantive limitations on the right to issue subpoenas. See
id. at 120 & n.7, 124.
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For the next twelve years, PF 15 held sway in the
District of Massachusetts. In the interim, the Rhode Island
Supreme Court adopted a rule of conduct requiring prosecutors to
obtain judicial approval prior to issuing attorney subpoenas.
See R.I. Sup. Ct. Rules, Art. V., R. Prof'l Conduct 3.8 & cmt.
(adopted Nov. 1, 1988). This rule closely resembled PF 15, with
two significant deviations: its reach extended to subpoenas
outside the grand jury context, and its text included a comment
outlining substantive standards to be applied by a court in
determining whether to sanction an attorney subpoena request.
See id. Specifically, the comment suggested that judicial
approbation should be withheld unless, inter alia, the
information sought was (a) not privileged, (b) "essential" to
the government's investigation, and (c) unobtainable from any
"other feasible alternative." Id. When the United States
District Court for the District of Rhode Island incorporated the
state standard into its local rules on April 20, 1989, the
United States Attorney for that district challenged it. In
Whitehouse v. United States District Court, 53 F.3d 1349 (1st
Cir. 1995), a panel of this court upheld the local rule, albeit
strongly suggesting that a different result would obtain were
the criteria limned in the comment embedded in the text of the
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rule itself (and, thus, made mandatory rather than precatory).
See id. at 1357-58 & n.12.
We temporarily shift our focus to the national stage.
In 1990, the American Bar Association (the ABA) amended Rule 3.8
of the Model Rules of Professional Conduct by adding a new
paragraph (f) and comment:
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 sought is
not protected from disclosure
by any applicable privilege;
(ii) the evidence sought is
essential to the successful
completion of an ongoing
investigation or prosecution;
[and]
(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 proceeding.
Comment
Paragraph (f) is intended to limit the
issuance of lawyer subpoenas in grand jury
and other criminal proceedings to those
situations in which there is a genuine need
to intrude into the client-lawyer
relationship. The prosecutor is required to
obtain court approval for the issuance of
the subpoena after an opportunity for an
adversarial hearing is afforded in order to
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assure an independent determination that the
applicable standards are met.
ABA Standing Comm. on Ethics and Prof'l Responsibility and
Section of Criminal Justice, Report 118, at 1 (Feb. 1990).
After the Third Circuit struck down a bar rule patterned on
Model Rule 3.8(f), see Baylson v. Disciplinary Bd., 975 F.2d 102(3d Cir. 1992), the ABA retreated; it removed the judicial
preapproval requirement by deleting both subparagraph (2) and
the second sentence of the comment. See ABA Standing Comm. on
Ethics and Prof'l Responsibility, Report 101, at 1 (Aug. 1995).
On June 9, 1997, the SJC amended the Massachusetts Code
of Professional Conduct to replace PF 15 with the (discarded)
1990 version of Model Rule 3.8(f), omitting the second sentence
of the comment, but including the rescinded subparagraph (2).
See S.J.C. R. 3:07, Rule 3.8(f) & cmt. 4. The result was to
alter PF 15 in three important respects: extending it to trial
as well as grand jury subpoenas; providing for an "adversarial
proceeding" in advance of the issuance of an attorney subpoena;
and promulgating three substantive standards for judicial
preapproval.
B. The Instant Litigation.
By local rule, attorneys practicing in the United
States District Court for the District of Massachusetts must
adhere to the ethical rules adopted by the SJC, unless a
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specific exception obtains. See D. Mass. R. 83.6(4)(B). On
November 17, 1997, the United States Attorney for the District
of Massachusetts, Donald K. Stern, wrote to the chief judge of
the district court, urging that such an exception be made for
State Rule 3.8(f). By letter dated December 3, 1997, the court
declined to craft a specific exception, indicating that Stern's
concerns would be resolved on a case-by-case basis. On January
1, 1998, Rule 3.8(f) went into effect. At that point, Stern
directed his staff to hold in abeyance any applications to the
district court for attorney subpoenas.
Stern and Craig C. Donsanto (a senior DOJ lawyer based
in Washington and a member of the Massachusetts bar), both
acting in their official capacities, filed suit in the district
court on May 13, 1998. They sought to have both State Rule
3.8(f) and Local Rule 3.8(f) declared invalid as applied to
members of the Massachusetts bar practicing before federal
courts. The complaint alleged in substance that Rule 3.8(f), in
both its federal and state incarnations, exceeded the district
court's rulemaking authority, contradicted the federal common
law anent grand jury practice, conflicted with the federal rules
of criminal procedure and evidence, and violated the Supremacy
Clause of the United States Constitution.
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Initially, the named defendants were the SJC, the
Massachusetts Board of Bar Overseers (the Board), Bar Counsel,
and the United States District Court itself.1 The complaint was
later amended to add as defendants the individual judges of the
district court (hereinafter, along with the court itself, the
Judicial Defendants).
The contours of the case were narrowed when Bar Counsel
filed an affidavit in which he vouchsafed that he would not
wield State Rule 3.8(f) against federal prosecutors, but,
rather, would refer any alleged violations to the federal
district court for discipline under Local Rule 3.8(f). This
concession rendered the Supremacy Clause issue moot and led the
plaintiffs to dismiss their claims against the SJC and the
Board. Rosenfeld then agreed not to attempt to enforce Local
Rule 3.8(f) against members of the Massachusetts bar practicing
outside the commonwealth, and Donsanto dropped out of the
picture.
Stern had moved at the outset for preliminary
injunctive relief. All the defendants opposed this motion, and
the Judicial Defendants filed a motion to dismiss the complaint
1The SJC administers professional responsibility matters
through the Board. In turn, Bar Counsel, currently Arnold R.
Rosenfeld, serves as the Board's chief enforcement officer. See
S.J.C. R. 4:01.
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as unripe. The district court heard argument on October 7,
1998, and took both motions under advisement. While the court
was pondering the matter, the President signed into law a bill,
now codified at 28 U.S.C. § 530B, that made certain state
standards directly applicable to federal prosecutors. The
parties debated the relevance and effect of this provision in a
series of subsequent submissions.
The district court ultimately determined the issues
presented to be ripe for review and rejected the claim that
section 530B rendered the controversy moot. See Stern v. SJC,
184 F.R.D. 10, 13-14 & n.5 (D. Mass. 1999). Then, reading
subparagraphs (1) and (2) independently, the court found
Whitehouse controlling in part and upheld both the prior
judicial approval requirement and the provision for an
adversarial hearing. See id. at 17-19. Finally, the court
approved the substantive requirements of subparagraph (1) as
ethical precepts not inconsistent with federal law. See id. at
19. Following the entry of a final judgment, Stern launched
this appeal.
II. RIPENESS
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We consider de novo the Judicial Defendants' contention
that the controversy is not ripe for adjudication. See Riva v.
Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995).
The ripeness doctrine has both constitutional and
prudential dimensions. See Public Serv. Comm'n v. Wycoff Co.,
344 U.S. 237, 242-44 (1952); Rhode Island Ass'n of Realtors v.
Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). Its basic
rationale is "to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract
disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967). Courts must apply a two-part test to assess ripeness.
See id. at 149. First, it is necessary to determine whether the
issue presented is fit for judicial review — an inquiry that
"typically involves subsidiary queries concerning finality,
definiteness, and the extent to which resolution of the
challenge depends on facts that may not yet be sufficiently
developed." Ernst & Young v. Depositors Econ. Protection Corp.,
45 F.3d 530, 535 (1st Cir. 1995). Second, it is necessary to
evaluate the extent to which withholding judgment will impose
hardship — an inquiry that typically "turns upon whether the
challenged action creates a 'direct and immediate' dilemma for
the parties." W.R. Grace & Co. v. EPA, 959 F.2d 360, 364 (1st
Cir. 1992) (quoting Abbott Labs., 387 U.S. at 152). Both prongs
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of the test ordinarily must be satisfied, although a very strong
showing on one axis may compensate for a relatively weak showing
on the other. See Ernst & Young, 45 F.3d at 535.
This case, which questions whether the federal district
court has the power to incorporate State Rule 3.8(f) into the
armamentarium of its local rules, passes the first prong of the
test. The issue presented can be finally resolved by
declaratory judgment, its contours are sharply defined, and
additional facts will not affect its resolution. The conclusion
that the issue is fit for review is bolstered, moreover, by a
realization that deciding the question appears unavoidable:
Local Rule 3.8(f) imposes new substantive and procedural
requirements on prosecutors who request attorney subpoenas, and
Bar Counsel has stated unequivocally that he will enforce those
requirements. Since bringing this suit, the United States
Attorney has delayed requests for no fewer than twenty-six such
subpoenas, and it seems reasonable to suppose that in some of
these instances the prosecutors would have had difficulty in
satisfying the "essentiality" and/or "no feasible alternative"
criteria. Short of a continuation of Stern's self-imposed
moratorium — and the public has a right to expect that such a
state of affairs will not last indefinitely — a test of Local
Rule 3.8(f)'s facial validity appears inevitable.
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This case also satisfies the hardship prong. Delaying
adjudication until a more concrete controversy emerges (until,
say, a particular attorney subpoena request reaches the judicial
preapproval stage or disciplinary proceedings are instituted in
the aftermath of a served subpoena) would inflict significant
institutional costs with little corresponding gain. Indeed,
charting such a course would put Stern on the horns of a
dilemma, forcing him to decide whether to serve attorney
subpoenas in cases arguably prohibited by the local rule and
thus risk potential sanctions or to refrain from so doing and
thus jeopardize the success of ongoing criminal investigations.
It is precisely this sort of "'direct and immediate' dilemma,"
W.R. Grace, 959 F.2d at 364 (quoting Abbott Labs., 387 U.S. at
152), that Congress wished to ameliorate when it passed the
Declaratory Judgment Act. See ANR Pipeline Co. v. Corporation
Comm'n, 860 F.2d 1571, 1578 (10th Cir. 1988) ("Once the gun has
been cocked and aimed and the finger is on the trigger, it is
not necessary to wait until the bullet strikes to invoke the
Declaratory Judgment Act.").
A determination that this case is ripe for adjudication
squares with the way in which we, and other courts of appeals,
have treated analogous cases (albeit without explicit discussion
of ripeness). In Klubock, this court fielded a preemptive
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strike by federal prosecutors against a newly adopted ethics
rule. In Whitehouse, we entertained a similar foray, explaining
that "the proper method for mounting a facial challenge to the
validity of [a local rule] . . . is through an action for
declaratory and/or injunctive relief filed in the district
court." 53 F.3d at 1353. Moreover, two other courts of appeals
have adjudicated pre-enforcement challenges to ethics rules in
parallel circumstances. See United States v. Colorado Supreme
Court, 189 F.3d 1281 (10th Cir. 1999) (CSC II); Baylson, 975
F.2d 102.
Another case that sheds light on the question of
ripeness is United States v. Colorado Supreme Court, 87 F.3d
1161 (10th Cir. 1996) (CSC I). There, the Tenth Circuit held
that the United States had standing to mount a pre-enforcement
challenge to a local rule identical to Local Rule 3.8(f),
crediting the government's stated trepidation that the rule
would interfere with federal subpoena practice. See id. at
1165-67. Although the CSC I court did not discuss ripeness per
se, standing and ripeness often overlap. See Rhode Island Ass'n
of Realtors, 199 F.3d at 33. So here: we think that the
court's finding of standing necessarily implied that the
controversy was ripe for adjudication.
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In a pre-enforcement challenge to a law carrying
significant penalties, standing exists when the plaintiff has
manifested an intention to engage in conduct arguably proscribed
by the statute, and there exists a "credible threat" of
enforcement. New Hampshire Right to Life Political Action Comm.
v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996). In most situations,
as here, that self-same credible threat serves to render the
case fit for judicial review and to demonstrate the hardship
that will result should no review ensue. See Rhode Island Ass'n
of Realtors, 199 F.3d at 33 (stating that a "concrete plan[] to
engage immediately (or nearly so) in an arguably proscribed
activity . . . gives a precise shape to disobedience, posing a
specific legal question fit for judicial review," and "[a]
showing that the challenged statute, fairly read, thwarts
implementation of the plan adds the element of hardship").
The Judicial Defendants' vigorous arguments to the
contrary are ultimately unpersuasive. Citing Ernst & Young,
they asseverate that Stern's claims are too contingent and
uncertain to be fit for review. But the examples they give
include events that are almost certain to materialize (e.g.,
internal DOJ approval of an application for a subpoena addressed
to an attorney), and events that are completely irrelevant
(e.g., destruction of evidence by a targeted attorney). Stern
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stands poised to request and serve attorney subpoenas, but
reasonably fears disciplinary proceedings (for himself and his
staff) if he does so. Thus, the only contingency likely to
deter the parties from a collision course is continued self-
restraint on the part of Stern's office. This is a far cry from
Ernst & Young, where the relevant injury would materialize, if
at all, only after a long chain of remote and speculative
events, many of which involved third parties.2 See 45 F.3d at
538.
Next, the Judicial Defendants note that the "linchpin
of ripeness . . . is adverseness." Rhode Island v. Narragansett
Indian Tribe, 19 F.3d 685, 692 (1st Cir. 1994). Building on
this foundation, they complain that the current controversy
lacks adverseness because the lawyers potentially subject to
subpoena (and their clients, for that matter) are unrepresented.
This rather simplistic formulation overlooks, however, that as
a general rule a "conflict between state officials empowered to
enforce a law and private parties subject to prosecution of that
law is a classic 'case' or 'controversy' within the meaning of
2
Massachusetts Ass'n of Afro-American Police v. Boston
Police Department, 973 F.2d 18 (1st Cir. 1992) (per curiam), is
similarly distinguishable. There, we found a pre-enforcement
challenge unripe because the party with the power to inflict the
feared injury had expressly disclaimed any intent to do so. See
id. at 20-21.
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Art. III." Diamond v. Charles, 476 U.S. 54, 64 (1986). The
defendants here are empowered to enforce the strictures of Local
Rule 3.8(f) through disciplinary proceedings against Stern and
his subalterns. This type of controversy is thus sufficiently
adverse even though the class of persons that the law was
designed to protect is not separately represented. After all,
that class "lacks a judicially cognizable interest in the
prosecution or nonprosecution" of Stern or the other attorneys
in his office. Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973). Consequently, the fact that the district court adopted
Local Rule 3.8(f) out of a desire to shield the attorney-client
relationship does not mean that particular attorneys and clients
must be joined in a facial attack on the rule.
Finally, the Judicial Defendants suggest that the DOJ
guidelines render this case unripe. Because the standards
contained in the guidelines and those contained in Local Rule
3.8(f) overlap, this thesis goes, there is scant likelihood that
Local Rule 3.8(f) will work any harm. This thesis has a
plausible ring but, in the last analysis, it fails to cover the
ground. We explain briefly.
There is no question that the DOJ guidelines'
"reasonably needed" criterion, 3 Department of Justice Manual §
9-13.410, at 9-165 (2d ed. 2000), is markedly less demanding
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than the "essentiality" requirement contained in Local Rule
3.8(f). We think that the DOJ criteria are also less demanding
than the "no feasible alternative" requirement; the guidelines
stipulate that "all reasonable attempts shall be made to obtain
the information from alternative sources . . . unless such
efforts would compromise the investigation or case," id.
(emphasis supplied), whereas the "no feasible alternative"
provision contains no similar loophole. In all events, the
guidelines are subject to change at the whim of the DOJ. Last
(but not least), an internal review mechanism that specifically
disavows any intent to create legally enforceable rights
obviously does not burden prosecutors in the same way, or to the
same extent, as does a binding rule of court that imposes
substantive standards, requires prior judicial approval, and
subjects government attorneys to potential disciplinary action.
Cf. Whitehouse, 53 F.3d at 1362 n.18 (suggesting that DOJ
guidelines did not render a prior judicial approval requirement
superfluous). For these reasons, we reject the notion that the
mere existence of the DOJ guidelines dissipates any hardship.
We have said enough on this score. The threat of
ethics enforcement is genuine, compliance costs are real and
immediate, and the chilling effect on attorney subpoena requests
constitutes an injury sufficient to support a justiciable
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controversy. See CSC I, 87 F.3d at 1165-67. Thus, the issue
presented here — the authority of the federal district court to
incorporate State Rule 3.8(f) into its local rules — is ripe for
review.
III. THE MERITS
The authority of the federal district courts to adopt
local rules emanates from three sources. First, Congress has
empowered the Supreme Court to prescribe rules of practice and
procedure for the federal courts. See 28 U.S.C. § 2072(a). In
turn, the Supreme Court has authorized district courts to craft
local rules to implement, or fill gaps in, national rules of
practice and procedure. See Fed. R. Crim. P. 57(a)(1); Fed. R.
Civ. P. 83(a)(1). Second, Congress has vested the lower federal
courts with independent authority to prescribe local rules. See
28 U.S.C. § 2071(a). Third, district courts have inherent power
arising from the nature of the judicial process, and this power
extends to certain types of rulemaking. See Chambers v. NASCO,
Inc., 501 U.S. 32, 43 (1991); Whitehouse, 53 F.3d at 1355.
Regardless of the source, local rulemaking authority
is bounded. A local rule must be both constitutional and
rational, and its subject matter must be within the ambit of the
court's regulatory power. See Frazier v. Heebe, 482 U.S. 641,
646 (1987); Whitehouse, 53 F.3d at 1355-56. In this same vein,
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a local rule must be consistent with, but not duplicative of,
Acts of Congress and nationally applicable rules of practice,
procedure, and evidence. See 28 U.S.C. § 2071(a); Fed. R. Crim.
P. 57(a)(1); Fed. R. Civ. P. 83(a)(1). Even if a local rule
does not contravene the text of a national rule, the former
cannot survive if it subverts the latter's purpose. See Hawes
v. Club Ecuestre el Comandante, 535 F.2d 140, 144 (1st Cir.
1976). Then, too, local rules should cover only interstitial
matters. See Fed. R. Crim. P. 57 advisory committee's note; see
also United States v. Horn, 29 F.3d 754, 760 (1st Cir. 1994)
(noting that a court's inherent power has definite limits).
They may not create or affect substantive rights, see 28 U.S.C.
§ 2072(b), or institute "basic procedural innovations," Miner
v. Atlass, 363 U.S. 641, 650 (1960).
The core issue presented by this appeal is whether the
district court had the power to adopt Local Rule 3.8(f). This
question of law engenders de novo review. Before answering this
query, however, we pause to measure its dimensions.
A. How to Construe Local Rule 3.8(f).
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At Bar Counsel's urging, the court below read
subparagraphs (1) and (2) of Local Rule 3.8(f) independently.
See Stern, 184 F.R.D. at 16-17. On this bifurcated reading, the
substantive standards delineated in subparagraph (1) would be
relevant only to potential disciplinary proceedings, and a court
deciding whether to approve a subpoena request pursuant to
subparagraph (2) would have no obligation to apply them. We
reject this artificial construction of Local Rule 3.8(f).
The most sensible way to construe Local Rule 3.8(f) is
as a unified whole. Each subparagraph is a mere sentence
fragment and neither makes sense without reference to the shared
introductory language. Court rules, like statutes and
ordinances, generally are to be read in a holistic manner. See,
e.g., King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991);
Massachusetts Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 180 (1st
Cir. 1999); O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.
1996). This tenet applies with special force when subdivisions
are grammatically interrelated. See American Standard, Inc. v.
Crane Co., 510 F.2d 1043, 1058 (2d Cir. 1974).
Here, the case for reading the rule as a whole is even
stronger, for the connection between the two halves is not only
grammatical but also logical. Subparagraph (2) outlines a
process for determining whether a subpoena application should be
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approved, but gives no clue as to what standard a judge is to
apply in making that determination. The obvious place to look
is subparagraph (1), which sets forth such a standard. Indeed,
the court below acknowledged that "as a practical matter, a
court faced with a request for an attorney-subpoena is likely to
engage in a similar inquiry in the course of determining whether
issuance of the subpoena is appropriate." Stern, 184 F.R.D. at
16 n.12. The presence of the attorney to be subpoenaed — a
feature not involved in the scheme upheld in Whitehouse —
virtually guarantees such an inquiry.
On the other hand, subparagraph (2) would serve no
purpose if courts evaluated subpoena applications solely on the
basis of traditional motion-to-quash standards. For the
adversarial hearing to be meaningful, the targeted attorney
would have to be told in advance of the content of the testimony
or materials sought. This notice, no less than service of the
subpoena itself, would drive a wedge of distrust between lawyer
and client. Thus, subparagraph (2), on the bifurcated reading,
would mirror existing quashal procedure and generate no ethics
benefits whatsoever.
The sockdolager is that the original drafters certainly
intended that the two subparagraphs of the rule be harmonized,
not balkanized. As discussed above, the text of Local Rule
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3.8(f) derives from (and is identical to) a former ABA Model
Rule. The comment to that rule made it transparently clear that
the judicial preapproval described in subparagraph (2) was
designed to ensure compliance with the substantive standards
described in subparagraph (1). Absent some specific disclaimer
(not present here), the district court cannot adopt verbatim the
text of a model rule without accepting the drafters' unequivocal
interpretation of its meaning. Cf. Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,
537 (1947) ("[I]f a word is obviously transplanted from another
legal source . . . it brings the old soil with it.").
To be sure, when the SJC formulated State Rule 3.8(f),
it omitted the second sentence of the comment to the former ABA
rule (which made the connection between the two subparagraphs
explicit). But see Whitehouse, 53 F.3d at 1358 nn.12 & 14,
1364-65 (noting that comments and commentary are not binding).
In addition, the Massachusetts version lists as the sources for
subparagraph (2) both former ABA Model Rule 3.8(f)(2) and PF 15,
and the latter rule has been interpreted to impose no
substantive restrictions beyond the prototypical motion-to-quash
standards. See Klubock, 639 F. Supp. at 120 & n.7, 124. But
these reeds are far too slender to shore up a construction that
splits grammatically interrelated provisions, imports a standard
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of review from outside the ethics code, and directly contradicts
the drafters' manifest intention.
Bar Counsel also argues that we should defer to his
construction because he is the official charged with enforcement
of ethics rules in Massachusetts. With respect, we doubt that
Bar Counsel's litigation position is entitled to any deference.
Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988)
(holding that an agency's litigating position is not entitled to
deference); Massachusetts v. Blackstone Valley Elec. Co., 67
F.3d 981, 991 (1st Cir. 1995) (same). In all events, Bar
Counsel's construction does not bind the judges of the District
of Massachusetts who, as defendants here, have pointedly refused
to endorse it.3 Finally, any deference that might normally be
due is overcome here by the availability of a much more logical
reading and a clear statement of the drafters' intent. Cf. 12
Charles Alan Wright et al., Federal Practice & Procedure § 3153,
at 533 (2d ed. 1997) (explaining that even "a district court's
construction of its own rule will be reversed if the appellate
court is convinced that the district court has misconstrued its
own rule").
3 Consistent with their position that the controversy is not
ripe, the Judicial Defendants apparently deem it incumbent upon
them to refrain from rendering what might be seen as an advisory
opinion.
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Bar Counsel next invokes the principle that courts
should resist interpreting a statute in a way that provokes a
constitutional problem. See United States v. Gifford, 17 F.3d
462, 473 (1st Cir. 1994). Other courts of appeals have extended
this principle to the construction of local rules, thereby
seeking to avoid interpretations that place local rules on a
collision course with national rules. See, e.g., Marshall v.
Gates, 44 F.3d 722, 725 (9th Cir. 1995); United States v. White,
980 F.2d 836, 844 (2d Cir. 1992); cf. Jaroma v. Massey, 873 F.2d
17, 20 (1st Cir. 1989) (per curiam) (explaining that ambiguous
"[l]ocal district court rules cannot be construed in such a way
as to render them inconsistent with applicable provisions of the
Federal Rules of Civil Procedure").
There are reasons to question whether such an extension
of the principle is appropriate; after all, striking down a
local rule, unlike declaring a statute unconstitutional, does
not implicate separation of powers or countermajoritarian
concerns. But even assuming, for argument's sake, the validity
of the extended principle — on the ground, say, that the local
rule here derives from a state rule, and that the issue
therefore has overtones of comity — it does not control the
outcome in this instance. Interpretive ingenuity has its
limits. The idea that judges charged with interpreting a rule
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should strive to do so in a way that will avoid conflicts with
governing law is a useful device in doubtful cases, but it does
not permit the interpreters to substitute their judgment for
that of the drafters or to rewrite the rule from scratch. Here,
there is both a natural, holistic reading of the local rule and
a clear statement by the drafters in support of such a reading.
In these circumstances, we will not embrace an implausible
construction simply to minimize the potential for conflict with
federal law.
For these reasons, we hold that Local Rule 3.8(f) must
be read as an indivisible whole. Consequently, judicial
preapproval under subparagraph (2) of the rule proceeds, if at
all, on the basis of the substantive standards elucidated in
subparagraph (1).
B. Rule 3.8(f) as Applied to Grand Jury Subpoenas.
Because local rulemaking authority is at a lower ebb
in the grand jury context, we ease first into those relatively
shallow waters.
The grand jury is deeply rooted in Anglo-American
tradition and is "a constitutional fixture in its own right."
United States v. Williams, 504 U.S. 36, 47 (1992) (internal
quotation marks omitted). It is not a part of either the
Executive or Judicial Branch, but, rather, "a kind of buffer .
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. . between the Government and the people." Id. Accordingly,
"any power federal courts may have to fashion, on their own
initiative, rules of grand jury procedure is a very limited one,
not remotely comparable to the power they maintain over their
own proceedings." Id. at 50. A local rule may not
"substantially alter[] the traditional relationships between the
prosecutor, the constituting court, and the grand jury itself."
Id. Nor may a local rule trench upon any core attribute of the
grand jury, including: "1) its independence from the court's
supervision; 2) its broad investigative powers; 3) the
presumption of validity accorded its subpoenas; 4) the secrecy
of its proceedings; [or] 5) its general freedom from procedural
detours and delays." Whitehouse, 53 F.3d at 1357. It is
against this backdrop that we take the measure of Local Rule
3.8(f) as it pertains to grand jury subpoenas.
We do not write on a pristine page. As the defendants
repeatedly remind us, Whitehouse held that a local rule
requiring judicial preapproval for the service of an attorney
subpoena neither undermined the historic role of the grand jury
nor interfered with its essential attributes. See id. at 1357-
62. But this holding rested squarely on the panel's
determination that the particular local rule worked no
substantive change in the governing law because judicial
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preapproval would be granted or denied under traditional motion-
to-quash standards. See id. at 1357-58 & nn.12-13 (explaining
that the rule "merely authorizes district courts to reject a
prosecutor's attorney-subpoena application for the traditional
reasons justifying the quashing of a subpoena"); see also Fed.
R. Crim. P. 17(c) (authorizing courts to quash a subpoena "if
compliance would be unreasonable or oppressive"). In so
holding, the Whitehouse court brushed aside the seemingly more
rigorous criteria delineated in the comment to the rule, on the
ground that the comment was merely advisory. See 53 F.3d at1358 n.12. So viewed, the rule imposed no additional burden on
grand jury independence because courts, in theory, would apply
the motion-to-quash standards that govern under Rule 17, not the
comment's suggested criteria, in determining whether to approve
an attorney subpoena request.4
4 To be sure, the panel also suggested that the preapproval
process did not impede grand jury independence because it did
not apply to subpoenas sought by the grand jury acting
independently from the prosecutor. See Whitehouse, 53 F.3d at
1357. While we are bound by the holding of Whitehouse, we
eschew this component of its reasoning. As a practical matter,
grand jury subpoenas are almost universally issued by and
through federal prosecutors. See, e.g., In re Grand Jury
Matters (United States), 751 F.2d 13, 16 (1st Cir. 1984).
Moreover, the Supreme Court has explicitly rejected the notion
that an otherwise impermissible rule of grand jury procedure
becomes permissible if it is enforced against the prosecutor
instead of the grand jury itself. See Williams, 504 U.S. at 53.
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The Rhode Island rule's saving grace is absent here.
Local Rule 3.8(f) differs significantly in that it imposes new
substantive requirements for judicial preapproval of grand jury
subpoenas. In so doing, the rule alters the grand jury's
historic role, places it under overly intrusive court
supervision, curbs its broad investigative powers, reverses the
presumption of validity accorded to its subpoenas, undermines
the secrecy of its proceedings, and creates procedural detours
and delays. It therefore impermissibly interferes with grand
jury proceedings. See 1 Hazard & Hodes, supra, § 3.8:701, at
702 (Supp. 1997) ("Rule 3.8(f) in its original form seemed
clearly invalid . . . as applied to . . . federal grand jury
subpoenas to criminal defense lawyers.").
Because any one of these vices would suffice to
invalidate the rule as applied to grand jury subpoenas, we
confine our discussion to two of the most glaring defects:
Local Rule 3.8(f)'s impact on grand jury secrecy and its
potential as an incubator for delay. In United States v. R.
Enterprises, Inc., 498 U.S. 292 (1991), the Court held that the
government could not be required to demonstrate that the
materials sought by a grand jury subpoena were relevant. See
id. at 298-99. The Court explained that such a requirement
"'would saddle a grand jury with minitrials and preliminary
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showings,'" id. (quoting United States v. Dionisio, 410 U.S. 1,
17 (1973)), and would "threaten[] to compromise 'the
indispensable secrecy of grand jury proceedings,'" id. at 299
(quoting United States v. Johnson, 319 U.S. 503, 513 (1943));
see also Fed. R. Crim. P. 6(e) (cloaking grand jury proceedings
in secrecy). Requiring a prosecutor to show that subpoenaed
evidence is essential and not otherwise feasibly obtainable
would have the same two impermissible effects. Consequently, we
hold that Local Rule 3.8(f), as it pertains to grand jury
subpoenas, encroaches unduly upon grand jury prerogatives and,
therefore, is ultra vires.
C. Rule 3.8(f) as Applied Outside the Grand Jury Context.
Outside the grand jury context, Stern asseverates that
Local Rule 3.8(f) is beyond the district court's competency
because it goes past the "matters of detail" appropriate for
local rulemaking, Fed. R. Crim. P. 57 advisory committee's note,
and works a fundamental procedural change. This argument
depends heavily on Miner v. Atlass, in which the Court held that
a local admiralty rule authorizing oral discovery depositions
exceeded the district court's rulemaking authority. See 363
U.S. at 650. The Court reasoned that this innovation, "though
concededly 'procedural,' may be of as great importance to
litigants as many a 'substantive' doctrine." Id. Accordingly,
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it was too basic to be effectuated through local rulemaking.
See id.In Colgrove v. Battin, 413 U.S. 149 (1973), the Court
elaborated on this concept, explaining that "[t]he 'basic
procedural innovations' to which Miner referred are those
aspects of the litigatory process which bear upon the ultimate
outcome of the litigation." Id. at 163 n.23. Applying this
taxonomy, the Court upheld a local rule providing for six-member
civil juries in lieu of traditional twelve-member juries because
the party challenging the rule had not shown any discernible
difference in the results reached. See id. Synthesizing Miner
and Colgrove, we conclude that the relevant inquiry is whether
Local Rule 3.8(f), applied outside the grand jury context, is
apt to affect the ultimate outcome of criminal proceedings. See
Eash v. Riggins Trucking Inc., 757 F.2d 557, 569 (3d Cir. 1985)
(en banc).
The answer to this inquiry depends, in the first
instance, on current practice under Fed. R. Crim. P. 17. Rule
17(c) authorizes subpoenas for the production of documentary
evidence, objects, and the like. That rule prescribes a
procedure and a standard for challenging such subpoenas: "The
court on motion made promptly may quash or modify the subpoena
if compliance would be unreasonable or oppressive." The Supreme
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Court elucidated the meaning of this standard in United States
v. Nixon, 418 U.S. 683 (1974), holding that a subpoena duces
tecum is not "unreasonable or oppressive" if the proponent
establishes relevancy, admissibility, and specificity. See id.
at 700.
Roughly the same standard applies to subpoenas
compelling the attendance of witnesses, i.e., subpoenas ad
testificandum. Although Rule 17(a), which governs such
subpoenas, does not provide explicitly for quashal or
modification, courts routinely have entertained motions seeking
such relief and decided them by reference to comparable
principles. Specifically, a subpoena ad testificandum survives
scrutiny if the party serving it can show that the testimony
sought is both relevant and material. See United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982); United States v.
Campbell, 874 F.2d 838, 850-51 (1st Cir. 1989).
These traditional standards for quashal of trial
subpoenas form the template for further inquiry here. 5 As we
5
It bears emphasis that the motion-to-quash standards
applicable to trial subpoenas historically have not been applied
to grand jury subpoenas. See R. Enters., 498 U.S. at 298-99(holding that recourse to the Nixon criteria would unduly
interfere with grand jury proceedings); In re Grand Jury
Proceedings (Hill), 786 F.2d 3, 5 n.2 (1st Cir. 1986) (per
curiam) (declining to require a showing of "need" or "relevance"
before a court may enforce a grand jury subpoena directed to an
attorney). Because grand jury subpoenas are sui generis, we use
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have said, Local Rule 3.8(f) requires a prosecutor, before
serving an attorney subpoena, to demonstrate that the
information sought is essential, not privileged, and not
otherwise feasibly available. These are significant departures
from prior practice, and they raise the bar for obtaining
relevant and material evidence. Collectively, they work changes
too fundamental to be accomplished under the aegis of the
district courts' local rulemaking power.
In particular, the "essentiality" and "no feasible
alternative" requirements are substantially more onerous (and,
thus, more restrictive) than the traditional motion-to-quash
standards. Essentiality is obviously a more demanding criterion
than relevancy or materiality. By like token, Rule 17
jurisprudence contains no corollary to the principle that a
subpoena issued to one source cannot stand if the information
sought is (or may be) available from some other source.
Two examples illustrate these points. Suppose, in a
robbery case, that a defense lawyer received a lump-sum advance
payment for services in the precise amount of the purloined
funds from a client with no visible means of support. There is
other evidence linking the client to the robbery, so the billing
the term "trial subpoenas" as a shorthand for all other
subpoenas (e.g., subpoenas issued in the course of pretrial
hearings).
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information could not fairly be described as "essential" to the
prosecution. Hence, Local Rule 3.8(f) would prohibit the
prosecutor from serving a subpoena on the defense attorney,
notwithstanding the unarguable materiality and relevancy of the
retainer information. Next, consider unprivileged documents in
a lawyer's file relating to a complex, and possibly fraudulent,
international real estate transaction. These documents may be
obtainable without a subpoena duces tecum directed to the
lawyer, but only through time-consuming, relatively expensive
(but still feasible) alternative means. Local Rule 3.8(f) would
prohibit an attorney subpoena, even though the situation easily
satisfies standards of relevancy, admissibility, and
specificity.
These examples are not eccentric hypotheticals, but,
rather, fairly typical of the sort of situation in which a
prosecutor might wish to serve an attorney subpoena (others
easily can be conceived). We think that they demonstrate
convincingly that Local Rule 3.8(f) imposes novel requirements
that threaten to preclude the service of otherwise unimpeachable
subpoenas and thus restrict the flow of relevant, material
evidence to the factfinder. Considering that compelling the
production of evidence is of "great importance" to litigants,
Miner, 363 U.S. at 650, this is a fairly drastic alteration of
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the rules — too basic to be effected through local rulemaking.6
See Klubock, 832 F.2d at 673 (equally divided en banc) (opinion
of Breyer, J.) (suggesting that a local rule imposing standards
of review for attorney subpoenas stricter than traditional
motion-to-quash standards would fall outside the district
court's rulemaking authority).
Moreover, unlike in Colgrove, 413 U.S. at 163 n.23,
there has been no showing here that Local Rule 3.8(f) will not
affect the outcome of criminal proceedings. Indeed, there is
every reason to believe that the opposite is true. Local Rule
3.8(f) imposes new substantive requirements applicable only to
prosecutors and creates a novel procedural device to ensure that
these requirements are enforced. The likely result will be
fewer attorney subpoenas served by the government; as the
comment to the rule makes clear, the goal is "to limit the
issuance of lawyer subpoenas." Certain evidence, as long as a
court finds that it is not "essential," will never reach the
trier of fact. So, too, when the government decides that the
6
In striking down a local rule in Miner, the Court
repeatedly cited the fact than an analogous national rule had
been considered and rejected. See Miner, 363 U.S. at 644-45,
648-51. The situation here is reminiscent of that scenario:
Congress declined to enact a bill sponsored by Senator Paul
Simon that was designed to "provide procedural safeguards with
respect to the issuance of lawyer client subpoenas." 134 Cong.
Rec. 21,589, 21,599 (1988).
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"feasible alternative" to an attorney subpoena is not worth the
additional effort. In short, Local Rule 3.8(f), if permitted to
stand, will make it measurably more difficult for prosecutors to
secure convictions. The magnitude of this new burden is simply
too large to be imposed by local rule. Accordingly, the rule
cannot stand.
The Third Circuit reached the same conclusion with
respect to a closely analogous rule. At issue there was
Pennsylvania's analog to Local Rule 3.8(f), which required
judicial preapproval for attorney subpoenas in criminal
proceedings. See Baylson, 975 F.2d at 104. The comment to the
rule7 stipulated that approval normally would be denied unless
the court found that the information sought was relevant and not
confidential or privileged, that compliance would not be
unreasonable or oppressive, that the primary purpose of the
subpoena was not harassment, and that there were no feasible
alternative means of obtaining the information sought. See id.Although only the "no feasible alternative" requirement was
substantively new, the court held that the rule went beyond the
"matters of detail" contemplated by Fed. R. Crim. P. 57 and thus
transcended local rulemaking authority. See id. at 108-09.
7 The Third Circuit, unlike the panel in Whitehouse, see 53
F.3d at 1358 n.12, assumed that trial courts would not ignore
the comment in applying the rule. See Baylson, 975 F.2d at 109.
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Because it requires essentiality as well, Local Rule 3.8(f)
represents an even greater encroachment than the rule that
confronted the Baylson court.
D. Section 530B.
Shortly after the hearing in the district court,
Congress passed an omnibus budget bill. The bill contained a
provision entitled "Ethical standards for attorneys for the
Government," now codified as section 530B, which provides that:
An attorney for the Government shall be
subject to State laws and rules, and local
Federal court rules, governing attorneys in
each State where such attorney engages in
that attorney's duties, to the same extent
and in the same manner as other attorneys in
that State.
28 U.S.C. § 530B(a). Bar Counsel asserts that this passage
cures any conflict between Local Rule 3.8(f) and other federal
law. We do not agree.
"Because of the fundamental importance of the
principles shielding federal installations and activities from
regulation by the States, an authorization of state regulation
is found only when and to the extent there is a clear
congressional mandate, specific congressional action that makes
this authorization of state regulation clear and unambiguous."
Hancock v. Train, 426 U.S. 167, 179 (1976) (footnotes and
internal quotation marks omitted). We believe it is reasonable
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to require comparable specificity before inferring congressional
intent to abandon the goal of national consistency anent rules
of federal practice. Moreover, that benchmark is not attainable
here: it simply cannot be said that Congress, by enacting
section 530B, meant to empower states (or federal district
courts, for that matter) to regulate government attorneys in a
manner inconsistent with federal law. We explain briefly.
The federal rules of procedure, unlike state laws, are
nationally uniform. See 28 U.S.C. § 2071(a); Fed. R. Crim. P.
57(a)(1); Fed. R. Civ. P. 83(a)(1). In the area of ethics,
however, federal district courts generally have adopted their
own rules, often modeled on the rules of the state in which they
sit, but sometimes with significant deviations. See, e.g., D.
Mass. R. 83.6(4)(B) (stating that SJC ethics rules govern
"except as otherwise provided by specific rule of this court").
The potential for conflict between state and federal law
therefore should have been obvious, but section 530B does not
speak to the issue. Instead, Congress directed the Attorney
General to fill out the details of enforcement by regulation.
See 28 U.S.C. § 530B(b) (empowering the Attorney General to
promulgate implementing regulations). These regulations dispel
the notion that section 530B grants states and lower federal
courts the power, in the guise of regulating ethics, to impose
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strictures that are inconsistent with federal law. See 28
C.F.R. § 77.1(b) (directing that section 530B "should not be
construed in any way to alter federal substantive, procedural,
or evidentiary law").
The Eleventh Circuit recently had the opportunity to
consider the effect of section 530B. That court rejected the
argument that the statute cured an incipient conflict between a
state ethics rule (which had been incorporated into the federal
district court's local rules) and the federal rules of evidence.
See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir.
1999). The court wrote: "If Congress wants to give state
courts and legislatures veto power over the admission of
evidence in federal court, it will have to tell us that in plain
language using clear terms." Id. at 1125. We agree with this
pronouncement and apply it here: because Local Rule 3.8(f)
impermissibly interferes with federal grand jury practice and
transcends district court rulemaking authority, section 530B
cannot salvage it.
If more were needed — and we doubt that it is — Local
Rule 3.8(f) clearly extends beyond the shelter that section 530B
provides. Although the statutory text, which refers to "State
laws and rules, and local Federal court rules, governing
attorneys," is arguably susceptible to a broad interpretation,
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we have noted before that a statute's caption may assist in
clarifying ambiguities. See, e.g., Massachusetts Ass'n of HMOs,
194 F.3d at 180; Berniger v. Meadow Green-Wildcat Corp., 945
F.2d 4, 9 (1st Cir. 1991). The title of the statute here
("Ethical standards for attorneys for the Government") removes
any doubt about its scope: section 530B applies only to ethical
standards. This conclusion becomes irresistible in light of the
legislative history and implementing regulations. See, e.g.,
H.R. Conf. Rep. No. 105-825, at 1102 (1998); 144 Cong. Rec. E301
(daily ed. Mar. 5, 1998) (statement of sponsor, Rep. McDade); 28
C.F.R. §§ 77.1(b), 77.2(h).8
That ends the matter. Local Rule 3.8(f), though
doubtless motivated by ethical concerns, has outgrown those
humble beginnings. Substance, not form, must control. See 28
C.F.R. § 77.2(h)(1) (explaining that the applicability of
section 530B does not depend on "whether or not [the state or
local] rule is included in a code of professional responsibility
for attorneys"). As written, Local Rule 3.8(f) is more than an
ethical standard. It adds a novel procedural step — the
opportunity for a pre-service adversarial hearing — and to
8Unlike Bar Counsel, we do not ascribe much weight to the
dire predictions of broader applicability made by opponents of
section 530B. See, e.g., 144 Cong. Rec. S12,996-97 (daily ed.
Nov. 12, 1998) (statement of Sen. Abraham); 144 Cong. Rec.
S12,798-99 (daily ed. Oct. 21, 1998) (statement of Sen. Hatch).
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compound the matter, ordains that the hearing be conducted with
new substantive standards in mind.
In recommending the deletion of subparagraph (2) from
the former ABA Model Rule, the Standing Committee explained that
the judicial preapproval provision was an anomaly: "Rather than
stating a substantive ethical precept, it sets out a type of
implementing requirement that is properly established by rules
of criminal procedure rather than established as an ethical
norm." ABA Standing Comm. on Ethics and Prof'l Responsibility,
Report 101, at 7 (Aug. 1995). We agree with this assessment.
Because Local Rule 3.8(f) goes beyond the realm of ethics,
section 530B neither rescues it nor renders the instant case
moot.9 Cf. CSC II, 189 F.3d at 1283-89 (relying on section 530B
to uphold an ethics rule consisting of subparagraph (1) but
without any provision for an adversarial hearing).
IV. CONCLUSION
We need go no further. We conclude that the authority
of the district court to adopt Local Rule 3.8(f) is ripe for
judicial review and that the two subparagraphs of the rule are
to be read together. Thus, the substantive standards delineated
in subparagraph (1) must guide a court in determining whether to
9
For essentially the same reason, Local Rule 3.8(f) is
beyond the district court's inherent authority to regulate the
conduct of attorneys appearing before it.
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approve an attorney subpoena in a pre-service hearing held
pursuant to subparagraph (2). We also conclude that the
adoption of Local Rule 3.8(f) exceeded the district court's
lawful authority to regulate both grand jury and trial
subpoenas. Finally, we conclude that 28 U.S.C. § 530B does not
repair these defects. Accordingly, we hold that Local Rule
3.8(f) is without force or effect.
Reversed.
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