In Re: Grand Jury Subpoena v. , 909 F.3d 26 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1464
IN RE: GRAND JURY SUBPOENA
PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta and Barron, Circuit Judges.
Neil F.X. Kelly, Assistant Attorney General for the State of
Rhode Island, with whom Peter F. Kilmartin, Attorney General of
the State of Rhode Island, and Sean Lyness, Special Assistant
Attorney General for the State of Rhode Island, were on brief, for
petitioner.
Donald C. Lockhart, with whom Stephen G. Dambruch, United
States Attorney, was on brief, for respondent.
November 21, 2018
KAYATTA, Circuit Judge. The Rhode Island Department of
Education and Training ("Department") petitions us for a writ of
advisory mandamus to answer the following question: May a state
government successfully invoke the attorney-client privilege in
response to a federal grand jury subpoena? The petition comes in
response to a holding by a federal district court in the District
of Rhode Island that the privilege is categorically unavailable to
a state government in receipt of a federal grand jury subpoena.
For the reasons discussed below, we grant the writ and explain why
such a categorical rule is not appropriate.
I.
Given that portions of the record are sealed, we discuss
the factual background of this matter only briefly. A federal
grand jury sitting in the District of Rhode Island subpoenaed
certain records from the Department. The Department moved to quash
the subpoena to the extent it sought to compel the production of
documents containing confidential communications between
Department staff and Department legal counsel. The district court
denied the motion and ordered the Department to turn over the
requested communications, holding that, as a categorical matter,
"the attorney-client privilege does not shield communications
between government lawyers and their clients from a federal grand
jury." Order at 2, In re Grand Jury Subpoena (R.I. Dep't of Labor
and Training), No. 18-4 WES (D.R.I. Apr. 25, 2018). The district
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court declined to certify the issue for appeal under 28 U.S.C.
§ 1292(b), Order at 5, In re Grand Jury Subpoena (R.I. Dep't of
Labor and Training), No. 18-4 WES (D.R.I. May 16, 2018), leaving
the Department with only one traditional option for gaining
appellate review: refusing to comply with the subpoena, incurring
a contempt order, and appealing from that order. Reluctant to
violate a court order, the Department instead petitioned this court
for a writ of advisory mandamus under 28 U.S.C. § 1651 directing
the district court to quash the subpoena.
II.
We consider first whether advisory mandamus is
available. The All Writs Act, 28 U.S.C. § 1651, empowers federal
courts to "issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law." One of these writs is the writ of mandamus,
which comes in two varieties. The more commonly sought writ is
that of supervisory mandamus, which is available when "the issuance
(or nonissuance) of [a district court] order presents a question
anent the limits of judicial power, poses some special risk of
irreparable harm to the [party seeking mandamus], and is palpably
erroneous." United States v. Horn, 29 F.3d 754, 769 (1st Cir.
1994). The Department does not contend that this more common form
of mandamus is available here. Rather, it seeks a writ of advisory
mandamus, which we have described as being available only in "rare
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cases; the usual requisites are that the issue be an unsettled one
of substantial public importance, that it be likely to recur, and
that deferral of review would potentially impair the opportunity
for effective review or relief later on." United States v. Pleau,
680 F.3d 1, 4 (1st Cir. 2012) (en banc).
We have little trouble concluding that the first two
requisites for invoking advisory mandamus are satisfied here. The
parties agree that the issue on which our opinion is sought is
unsettled in this circuit, while (as we will discuss) other
circuits are split. And the degree to which communications between
government counsel and public employees may be shielded from a
grand jury subpoena is of substantial public importance.
Significantly, too, the petition seeks our opinion on a rule of
law and not on the manner in which the trial court exercised its
discretion. See In re Insurers Syndicate, 864 F.2d 208, 211 (1st
Cir. 1988) ("[M]andamus, as a general rule, will not issue to
control exercises of judicial discretion."). We also see the issue
as likely to recur; the fact that multiple circuits have already
weighed in on the subject suggests as much, and the United States
offers little to persuade us otherwise. Indeed, the ruling below
in this very case makes it more likely that grand juries will seek
such information. And if the district court ruling remains extant,
it may dissuade public officials in other cases from challenging
subpoenas or perfecting appeals from subsequent district court
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opinions that track the holding below in this case. Finally,
prolonged doubt about the sustainability of the privilege in the
face of grand jury subpoenas could leave many public officials
uncertain about how to conduct themselves in seeking -- or not
seeking -- legal advice.
The more challenging question is whether refusing to
exercise our mandamus jurisdiction "would potentially impair the
opportunity for effective review." Pleau, 680 F.3d at 4. The
United States argues that the Department can secure effective
review by defying the subpoena, incurring a contempt order, and
appealing that order. The Department concedes that a private party
may follow such a path without too much difficulty in order to
obtain interlocutory review of a discovery ruling. See Alexander
v. United States, 201 U.S. 117, 121 (1906). Nevertheless, the
Department contends that it has a heightened duty to follow (and
to be perceived to follow) the law. For that reason, it argues
that its ability to seek appellate review in ordinary course is
impaired as compared to the ability of private parties to seek
such review.
We agree with the Department that the option of
perfecting an appeal in ordinary course by triggering a finding of
contempt may be materially less attractive -- and thus less readily
available -- to a government agency than it might be to a private
party. In so concluding, we recognize that we have nevertheless
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twice found a witness's status as a government employee
insufficient to justify foregoing the need to trigger a contempt
finding as a predicate to appeal. See Bennett v. City of Bos., 54
F.3d 18, 21 (1st Cir. 1995); Corporacion Insular de Seguros v.
Garcia, 876 F.2d 254, 260 (1st Cir. 1989). In neither case,
however, were we asked to consider a grant of advisory mandamus.
Rather, Bennett clearly concerned a request for traditional,
supervisory mandamus. See Bennett, 54 F.3d at 21 (analyzing the
traditional mandamus factors). And while Garcia did not expressly
identify the form of mandamus relief to which it referred, it
relied on a Supreme Court opinion that plainly concerned the
subject of traditional, supervisory mandamus relief. See Garcia,
876 F.2d at 260 (citing Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 290 (1988)). One of the factors required for
this court to grant traditional, supervisory mandamus is that the
district court order be "palpably erroneous." Bennett, 54 F.3d at
21; see also Gulfstream Aerospace Corp., 485 U.S. at 290 (finding
traditional, supervisory mandamus available only when the district
court "clearly overstepped its authority"). In such a case, a
party held in contempt can be relatively confident that a
successful appeal in ordinary course will deliver vindication. To
obtain advisory mandamus, however, the issue must be "unsettled."
Pleau, 680 F.3d at 4. Hence the risk of being found in contempt
with no eventual vindication is greater in this case than it was
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in Bennett or Garcia. For this reason the Department has shown,
albeit barely, that the enhanced impediment it faces as a
governmental entity to securing appellate review in ordinary
course supports a discretionary grant of advisory mandamus relief
assuming that all other requisites are well satisfied. See In re
The Justices of the Supreme Court of P.R., 695 F.2d 17, 25 (1st
Cir. 1982) (granting advisory mandamus relief even though
traditional appellate review was available because "[t]o require
the Justices unnecessarily to assume the role of advocates or
partisans on these issues would tend to undermine their role as
judges").
We are also confident that the other requisites are well
satisfied. The novelty of the question, its substantial public
importance, and its likeliness to recur -- coupled with the strong
solicitude the common law has afforded the attorney-client
privilege, see Upjohn Co. v. United States, 449 U.S. 383, 389
(1981), and the heightened federalism concerns implicated in this
case, see In re Justices of Superior Court Dep't of Mass. Trial
Court, 218 F.3d 11, 16 (1st Cir. 2000) -- weigh in favor of our
accepting jurisdiction. This question need only be decided once,
and once it has been decided, the answer can govern future
privilege disputes. We therefore proceed to the merits.
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III.
A.
While the federal rules of evidence generally do not
apply to grand jury proceedings, an exception exists for privilege
rules. Fed. R. Evid. 1101(d)(2). And, pursuant to Fed. R.
Evid. 501, "[t]he common law -- as interpreted by the United States
courts in the light of reason and experience -- governs a claim of
privilege." The rationale for the attorney-client privilege "has
long been recognized." Upjohn, 449 U.S. at 389. The Supreme Court
has explained:
Its purpose is to encourage full and frank
communication between attorneys and their
clients and thereby promote broader public
interests in the observance of law and
administration of justice. The privilege
recognizes that sound legal advice or advocacy
serves public ends and that such advice or
advocacy depends upon the lawyer's being fully
informed by the client. As we stated . . . in
Trammel v. United States, "The lawyer–client
privilege rests on the need for the advocate
and counselor to know all that relates to the
client's reasons for seeking representation if
the professional mission is to be carried
out." And in Fisher v. United States, we
recognized the purpose of the privilege to be
"to encourage clients to make full disclosure
to their attorneys."
Id. (citations omitted). In a display of understatement, we have
described the privilege as "well-established." In re Keeper of
the Records (XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003). At the
same time, "the privilege is not limitless, and courts must take
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care to apply it only to the extent necessary to achieve its
underlying goals. . . . [It] must be narrowly construed because
it comes with substantial costs and stands as an obstacle of sorts
to the search for truth." Id. (citation omitted).
The application of the attorney-client privilege to
communications between government officials implicates competing
public interests. Confidentiality furthers the public interest by
making it more likely that public employees will seek to know the
law when contemplating certain actions. On the other hand, in the
case of public employees, one might say that the ultimate client
is the public and that the public interest in transparent
government processes cuts against the robust maintenance of any
privilege.
Four circuits have weighed in on the subject of grand
jury subpoenas seeking confidential communications between
government attorneys and government officials. Of those, three
have found that the privilege does not apply to such
communications, see In re A Witness Before the Special Grand Jury
2000-2, 288 F.3d 289 (7th Cir. 2002); In re Bruce R. Lindsey (Grand
Jury Testimony), 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury
Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), and one has
found the opposite, see In re Grand Jury Investigation, 399 F.3d
527 (2d Cir. 2005). The split is more even, however, when
considering only the cases in which a federal grand jury sought
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potentially privileged materials from state officials. Within
this subsection of cases, one circuit has found that the privilege
does not apply, see In re A Witness Before the Special Grand
Jury 2000-2, 288 F.3d at 293-94, and one has found the opposite,
see In re Grand Jury Investigation, 399 F.3d at 532–35.
B.
Turning to our own analysis, we consider first the
related arguments that a government lawyer should not be able to
assert the privilege because the lawyer's ultimate duty is to the
public, that the governmental entity need not fear prosecution,
and that the privilege need be overborne by the public interest in
transparent government. See In re A Witness Before the Special
Grand Jury 2000-2, 288 F.3d at 293–94 (noting that "government
lawyers have a higher, competing duty to act in the public
interest" and citing In re Bruce R. Lindsey (Grand Jury Testimony),
158 F.3d at 1273, for the proposition that there exists a public
interest in "transparent and accountable government"); id. at 294
("A state agency, however, cannot be held criminally liable by
either the state itself or the federal government."). Were these
arguments dispositive, it should follow that a government could
not assert the attorney-client privilege in response to a civil
subpoena or a discovery request on a matter of public importance.
Yet federal common law is directly to the contrary. As the Supreme
Court explained in United States v. Jicarilla Apache Nation:
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The objectives of the attorney-client
privilege apply to governmental clients. "The
privilege aids government entities and
employees in obtaining legal advice founded on
a complete and accurate factual picture."
Unless applicable law provides otherwise, the
Government may invoke the attorney-client
privilege in civil litigation to protect
confidential communications between
Government officials and Government
attorneys.
564 U.S. 162, 169–70 (2011) (citation omitted) (quoting
1 Restatement (Third) of the Law Governing Lawyers § 74 cmt. b
(Am. Law Inst. 1998)).
We take from this precedent the conclusion that the
public nature of the Department cannot itself deem the privilege
inapplicable. Something more is needed. That something more,
according to the United States, is the fact that the subpoena here
comes from a criminal grand jury seeking evidence of a crime. But
neither can that justification by itself be enough to sustain the
United States' position. After all, subpoenas in criminal
investigations are routinely served on private entities, yet those
entities can successfully assert the attorney-client privilege.
See, e.g., In re Grand Jury Subpoena, 273 F. Supp. 3d 296, 300-04
(D. Mass. 2017).
C.
So none of the United States' principal arguments for
sustaining the broad "no privilege" rule that the district court
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adopted can carry the day on their own. The United States is
therefore left to argue that its arguments can do the trick when
combined; i.e., if the proceeding is criminal and the witness is
a government employee or entity, then the privilege does not apply.
As for why the United States' arguments might accomplish together
what none can do on its own, the United States does not say.
Rather, it points to cases applying federal law to federal actors.
See In re Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d at
1266; In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 915. But
those decisions turn on the application of 28 U.S.C. § 535(b),
which mandates that federal employees report any wrongdoing they
may witness to the Attorney General but does not purport to require
any such disclosure by state employees.
Moreover, the federal-state conflict that the
availability of the attorney-client privilege implicates may cut
in favor of respecting the state's view of the best balance between
the public's interest in government transparency and the
beneficial aspects of the privilege. See In re Grand Jury
Investigation, 399 F.3d at 534 (discussing the federalism concerns
the question implicates and noting that Connecticut chose to adopt
strong privilege rules against its own investigators). In brief,
why should the federal grand jury -- without direction from
Congress -- get to overrule a state's decision on how best to
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operate its own government when there is no claim of wrongdoing by
state officials?
On the other hand, the United States' argument gathers
much more force when the federal grand jury is investigating
potential crimes that state officials or employees may have
committed themselves. The public interest in uncovering and
stopping crime grows substantially when crime invades the very
institutions that establish and preserve our balance of order and
freedom. In the face of such an invasion, the government and its
powers and fisc may become instruments for facilitating rather
than deterring crime. And, in such circumstances, the benefit of
federalism may well rest more in its checking function than in its
deference to the state. For these reasons, it is perhaps not
surprising that in all of the cases in which any of our fellow
circuits have rejected otherwise valid assertions of the attorney-
client privilege by government entities or persons, the search for
information was aimed at suspected wrongdoing within the
government. See In re A Witness Before the Special Grand Jury
2000-2, 288 F.3d at 290 (investigating potential wrongdoing by the
Governor of Illinois); In re Bruce R. Lindsey (Grand Jury
Testimony), 158 F.3d at 1266 (investigating potential wrongdoing
by the President of the United States); In re Grand Jury Subpoena
Duces Tecum, 112 F.3d at 913-14 (same). So in this context --
i.e., a grand jury investigating potential crime within the
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government -- the United States' principal arguments are both
joined in reinforcement and heightened in their importance, enough
so, perhaps, to tip the balance.
Here, though, the United States made no attempt to
persuade the district court that the grand jury's subpoena is
targeted at wrongdoing by government officials themselves. And,
at oral argument, Rhode Island's Attorney General stated that as
a matter of practice, the state would not assert the privilege if
the investigation were targeted at state misconduct. So we have
no reason to decide whether and on what type of showing a subpoena
targeted at wrongdoing by state officials might overbear any
privilege that might otherwise be asserted. Instead, on the record
as it now stands, we need simply reject the categorical rule that
a state government has no attorney-client privilege that can be
invoked in response to a grand jury subpoena.
IV.
We cannot fault the district court for adopting what it
viewed to be the majority position on a difficult issue of first
impression in this circuit. Nonetheless, the petition for a writ
of mandamus is granted. The writ shall issue in accordance with
this opinion directing the district court to vacate its denial of
the motion to quash.
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