In Re: 40th Statewide IGJ , 191 A.3d 750 ( 2018 )

[J-40-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: FORTIETH STATEWIDE : No. 45 WM 2017
INVESTIGATING GRAND JURY :
: Appeal from the Order of the
: Supervising Judge of the Fortieth
: Statewide Investigating Grand Jury
APPEAL OF: DIOCESE OF : entered on 6/15/17 at Allegheny County
HARRISBURG AND DIOCESE OF : No. CP-02-MD-0000571-2016
GREENSBURG :
:
: ARGUED: May 15, 2018
Chief Justice Saylor delivers the Opinion of the Court, and Justice Baer
also speaks for the Court, by way of concurrence.
OPINION
CHIEF JUSTICE SAYLOR DECIDED: AUGUST 21, 2018
This appeal concerns a challenge to the practice of requiring private attorneys
who may be privy to confidential information related to a grand jury investigation to
commit to maintaining the secrecy of all information they may acquire regarding the
grand jury.
The case involves the 40th Statewide Investigating Grand Jury, which was
convened in 2016 per the Investigating Grand Jury Act. 1 As relevant here, this statutory
1Act of Oct. 5, 1980, P.L. 693, No. 142, §216(a)(2) (as amended 42 Pa.C.S. §§4541-
4553).
regime limits the ability of participants in grand jury proceedings, other than witnesses,
to disclose matters occurring before the grand jury. See 42 Pa.C.S. §4549(b). In the
first instance, the enactment’s Section 4549(b) authorizes disclosure of such matters
generally to “attorneys for the Commonwealth” for use in the performance of their
duties. Id. Additionally, the attorneys for the Commonwealth, with the approval of the
supervising judge, may reveal matters occurring before the grand jury to law
enforcement or investigating agencies. Id. “Otherwise,” the ensuing provisions
admonish, “a juror, attorney, interpreter, stenographer, operator of a recording device,
or any typist who transcribes recorded testimony may disclose matters occurring before
the grand jury only when so directed by the court.” Id. (emphasis added). Section
4549(b) proceeds to require that “[a]ll such persons shall be sworn to secrecy,” on pain
of contempt for violations. Id.
Under the authority of the 40th Statewide Investigating Grand Jury, subpoenas
requiring the production of documents were recently issued to the Dioceses of
Harrisburg and Greensburg (“Appellants” or the “Dioceses”). Their counsel requested a
copy of the notice of submission that the Office of the Attorney General (the “OAG”) had
provided to the supervising judge, the Honorable Norman A. Krumenacker, III. See
generally 42 Pa.C.S. §4550 (delineating the notice-based procedure for the submission
of an investigation to a grand jury).
The supervising judge replied that he would furnish a copy of this notice to
counsel, but that counsel first would be required to sign and submit an entry-of-
appearance form, which included the following oath or affirmation:
I swear or affirm that, under penalty of contempt, I will keep
secret all that transpires in the Grand Jury room, all matters
occurring before the Grand Jury, and all matters and
information concerning this Grand Jury obtained in the
[J-40-2018] - 2
course of the representation, except when authorized by law
or permitted by the Court. 42 Pa.C.S.A. §4549(b).
These statements are made subject to the penalties of 18
Pa.C.S. §4903 [(False swearing)].
Counsel declined to accept these terms, however, and Appellants lodged a joint
motion to strike the non-disclosure provision from the entry-of-appearance form. They
argued that the requirement of secrecy was not authorized by the Investigating Grand
Jury Act, both as to the obligation being imposed upon counsel and, alternatively, in
terms of the breadth of that duty.2
The Dioceses’ lead contention was that the secrecy requirement of Section
4549(b) simply does not apply to private attorneys. They first posited that, “[b]y its
terms,” Section 4549(b) applies only to persons who are “sworn to secrecy” -- i.e., those
who are required in practice to sign an oath of secrecy -- such as “Commonwealth
attorneys, grand jurors, stenographers, typists, and operators of recording equipment.”
Brief in Support of the Dioceses’ Joint Motion to Strike in In re 40th Statewide
Investigating Grand Jury, CP-02-MD-571-2016 (C.P. Allegeheny), at 4.3
From this early stage in their presentation, Appellants began to substitute the
term “Commonwealth attorneys” for the word “attorney” as it appears in Section
4549(b)’s list of persons who must maintain secrecy. Their justification, at this
2 Our present discussion encompasses consideration of some matters appearing in
papers that have been filed under seal. Our treatment of such matters, however, is
limited to legal contentions that overlap with the present briefing.
3 In fact and as related above, Section 4549(b) delineates several categories of persons
who must be sworn to secrecy (namely, “a juror, attorney, interpreter, stenographer,
operator of a recording device, or any typist who transcribes recorded testimony”) and
specifies that “[a]ll such persons shall be sworn to secrecy.” 42 Pa.C.S. §4549(b)
(emphasis added). Accordingly, the statute does not render itself subordinate to its own
implementation in practice, as the Dioceses initially portrayed. Rather, Section 4549(b)
explicitly directs how that implementation is to proceed.
[J-40-2018] - 3
juncture -- based on the above line of reasoning -- was the contention that private
attorneys “generally are not required to sign the oath of secrecy.” Id.; see also N.T.,
May 26, 2017, at 10-11 (reflecting the argument of Appellants’ counsel to the
supervising judge as follows: “The fact that normally [private attorneys are] not required
to execute the secrecy oath I think is an indicator, perhaps the biggest indicator, that
there is a difference between those who are statutorily bound to keep . . . matters before
the grand jury secret and those who are not bound to do so unless it’s specifically
ordered by the court”). The Dioceses further opined, without offering supporting
authority, that private attorneys are relieved from taking an oath of secrecy, because
they are only in the presence of grand juries for a limited period of time during which
their clients testify as witnesses. See Brief in Support of the Dioceses’ Joint Motion to
Strike in In re 40th Statewide Investigating Grand Jury, CP-02-MD-571-2016, at 4.4
4 The Dioceses’ position that private attorneys are not required to take a secrecy oath --
which they carry into the present briefing -- was and is particularly confounding. In this
regard, the distinction is quite tenuous between an “oath of secrecy” and the non-
disclosure requirement contained within the entry-of-appearance form (which opens
with the words, “I swear or affirm,” and otherwise binds attorneys to maintaining
secrecy). Accord Brief for Appellee at 17 (positing, as to the relevant argument by
Appellants, that “[t]he Dioceses cannot even be accused of putting the cart before the
horse; they are putting the cart before the cart.”). Indeed, Appellants have supplied no
substantive explanation to support their repeated suggestion that a commitment to non-
disclosure subject to criminal sanctions is not either a secrecy oath unto itself or
tantamount to one.
The Dioceses also refer to historical practices prior to 2013, the year in which the entry-
of-appearance form and associated non-disclosure requirement for private attorneys
were introduced into grand jury practice. They have offered no evidence, however, to
support their assumption that supervising judges in Pennsylvania had consistently
interpreted Section 4549(b) as excluding private attorneys from the secrecy
requirement, prior to the introduction of the entry-of-appearance form into grand jury
practice.
[J-40-2018] - 4
Appellants also deemed it significant that Section 4549(d) expressly provides that
a client-witness is not prohibited from publicly disclosing his or her testimony except for
cause shown in a hearing before the court. See id. §4549(d). Given the latitude
afforded to witnesses, the Dioceses protested that requiring a commitment to secrecy
on the part of private attorneys creates an anomalous situation in which a client-witness
is free to disclose his grand jury testimony, but his lawyer cannot act on his behalf to
make such a disclosure, even where specifically authorized by the client-witness.
Additionally, Appellants noted that a subsection of Section 4549 is dedicated to
addressing “[c]ounsel for witnesses.” 42 Pa.C.S. §4549(c). According to the Dioceses,
had the General Assembly intended to forbid disclosures by private attorneys, the
logical place at which to reposit such a prohibition was within this subsection.
In terms of the breadth of the non-disclosure requirement appearing within the
entry-of-appearance form, Appellants highlighted that Section 4549(b) discusses
secrecy solely in the context of “matters occurring before the Grand Jury.” 42 Pa.C.S.
§4549(b). The form, on the other hand, prohibits disclosure of “all matters and
information concerning this Grand Jury obtained in the course of the representation,” a
constraint that the Dioceses depicted as being patently overbroad.5
After entertaining written and oral presentations of the parties’ positions, the
supervising judge denied relief on Appellants’ joint motion. See In re Fortieth Statewide
Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1 (C.P. Allegheny June 15,
5 Appellants also asserted that the non-disclosure requirement impaired their statutory
right to effective counsel and improperly infringed upon their counsel’s First Amendment
rights and entitlement to pursue the practice of law. In light of mootness considerations,
see infra note 8, and our disposition, below -- in which we disapprove the non-
disclosure provision of the entry-of-appearance form in its present incarnation -- we
have elected to omit the additional issues from our recitation of the background, our
discussion, and our ultimate order.
[J-40-2018] - 5
2017). At the outset, the supervising judge stressed the pervading necessity for
secrecy in grand jury proceedings. See id. at 2 (citing In re Investigating Grand Jury of
Phila. Cty. (Appeal of Phila. Rustproof Co.), 496 Pa. 452, 457-58, 437 A.2d 1128, 1130-
31 (1981)). He also explained that a grand jury proceeding is an investigative tool to
determine if a prima facie case of criminal activity exists, rather than an adversarial
hearing in which guilt or innocence of an accused is determined. See id. at 3 (citing
Pirillo v. Takiff, 462 Pa. 511, 524, 341 A.2d 896, 902 (1975)).
The supervising judge then readily dispensed with the distinction drawn by
Appellants between those persons who are required to take an oath of secrecy and
attorneys. In this regard, he explained that the non-disclosure requirement in the entry-
of-appearance form serves simply as “a customized version of the general secrecy oath
required by section 4549(b) . . ..” Id. at 6; see also supra notes 3 & 4.
The supervising judge proceeded to reject the imposition of a limiting
construction, as suggested by the Dioceses’ arguments, upon the word “attorney” as it
appears in Section 4549(b)’s delineation of the categories of persons who are bound to
non-disclosure. Invoking principles of statutory interpretation, he reasoned that words
and phrases generally are to be construed according to their common usage. See 1
Pa.C.S. §1903(a); see also Contolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 406,
658 A.2d 336, 340 (1995) (“Absent a definition in the statute, statutes are presumed to
employ words in their popular and plain everyday sense[.]”). Additionally, the
supervising judge found that the broader interpretation was reinforced by Section
4549(b)’s specific references to “attorneys for the Commonwealth,” a defined term
under the Investigating Grand Jury Act, see 42 Pa.C.S. §4542, and “counsel for
witnesses.” See In re Fortieth Statewide Investigating Grand Jury, No. 571 M.D. 2016,
Notice No. 1, at 7 (“These references to specific subsets of attorneys demonstrate that
[J-40-2018] - 6
the legislature knew the differences between the all-encompassing word ‘attorney’ and
specific classifications within that broad category.”).
Responding to Appellants’ focus on Section 4549(c)’s treatment of counsel for
witnesses, the supervising judge explained that attorneys sometimes appear before
grand juries for other purposes, such as -- and in the case of the Dioceses’ counsel -- to
challenge or otherwise respond to a subpoena.6 In his judgment, this explanation
supported the understanding that, when the Legislature referred to “attorney[s],” it
intended to capture the field of attorneys at large (encompassing Commonwealth
lawyers and private counsel representing witnesses or appearing before grand juries for
any other reason).
Furthermore, the supervising judge noted, Rule of Criminal Procedure 231(C)
provides that “[a]ll persons who are present while the grand jury is in session shall be
identified in the record, shall be sworn to secrecy as provided in these rules, and shall
not disclose any information pertaining to the grand jury except as provided by law.”
Pa.R.Crim.P. 231(C) (emphasis added). He reasoned that this rule serves as an
independent basis supporting a non-disclosure requirement for attorneys.
In terms of the breadth of the non-disclosure requirement appearing in the entry-
of-appearance form, the supervising judge indicated:
Counsel [for the Dioceses] is correct that the non-
disclosure/secrecy language would prevent them from
discussing anything learned in the grand jury setting with
third parties or in any way disclosing what is learned during
representation before the grand jury with those other than
their clients. This limitation is necessary to preserve the
integrity of the grand jury investigation and ensure that no
6 In this respect, the supervising judge discussed the concept of “appearance” in its
broader, legal sense, reaching beyond an in-person, physical appearance.
[J-40-2018] - 7
persons are able to influence potential witnesses, alter
evidence, or escape indictment if issued.
In re Fortieth Statewide Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1, at
10 (referencing some of the policy justifications for secrecy as related in In re
Investigating Grand Jury of Philadelphia County, 496 Pa. at 457-58, 437 A.2d at 1130-
31).
Finally, the supervising judge laid the groundwork for a permissive appeal by
expressing the opinion that his order involved a controlling question of law to which
there is a substantial ground for difference of opinion, and that an immediate appeal
might materially advance the ultimate termination of the matter. See 42 Pa.C.S.
§702(b).
Appellants filed the present petition for review pursuant to Rule of Appellate
Procedure 3331 seeking both permission to appeal and taking the position,
alternatively, that they were possessed with a right to an immediate, interlocutory
appeal as of right. On the permissive track, this Court agreed to consider the issues
presented upon full briefing and oral argument from the parties.7
The issue that we consider here involves statutory interpretation and analysis of
our own procedural rules, over which our review is plenary, and we proceed to apply
conventional interpretive principles. See generally Norfolk S. Ry. Co. v. PUC, 621 Pa.
312, 323, 328, 77 A.3d 619, 626, 629 (2013); Pa.R.Crim.P. 101(C).8
7 In terms of the asserted right to appeal on an interlocutory basis, Appellants
contended that the supervising judge’s order is a collateral order. See Pa.R.A.P. 313(a)
(“An appeal may be taken as of right from a collateral order of an administrative agency
or lower court.”). However, because we find this matter to be of substantial public
importance and permission to appeal to be warranted, we need not consider whether
the matter could otherwise have been presented as of right.
8 We note that the present appeal bears hallmarks of a moot controversy. First, the
supervising judge has confirmed that he did, at some point, provide Appellants’ counsel
(continued…)
[J-40-2018] - 8
Presently, Appellants maintain that Section 4549(b) does not require a secrecy
oath on the part of private attorneys. Continuing to assert that private counsel are not
sworn to secrecy, the Dioceses proceed to dismiss the supervising judge’s observation
that the non-disclosure requirement contained within the entry-of-appearance form
serves as a secrecy oath. In this regard, Appellants treat the judge’s explanation as if it
had been interposed by the jurist as a direct effort to interpret the statute rather than as
a response to the Dioceses’ own contentions. See Brief for Appellants at 26 (claiming
that the supervising judge’s equivalency observation “simply begs the question,” since
“[i]f private counsel are not required to sign the secrecy oath pursuant to Section
4549(b), which the court below acknowledged that they were not, then the fact that the
(…continued)
with the notice of submission that gave rise to their joint motion to strike. Moreover, the
tenure of the 40th Statewide Investigating Grand Jury has expired, and a great deal of
public information has been released revealing the subject matter of its work. See, e.g.,
In re 40th Statewide Investigating Grand Jury, No. 571 M.D. 2016, slip op. at 9 (C.P.
Allegheny June 5, 2018) (describing “two years of investigation into the Dioceses
related to allegations of child sexual abuse, failure to make a mandatory report, acts
endangering the welfare of children, and obstruction of justice by individuals associated
with the Roman Catholic Church, local public officials, and community leaders”).
Nevertheless, we believe that the lead issue presented by the Dioceses is of sufficient
public importance to justify its timely, final resolution in spite of any concerns with the
technical mootness of the case. See Pap's A.M. v. City of Erie, 571 Pa. 375, 391, 812
A.2d 591, 600–01 (2002) (alluding to the great-public-importance exception to the
mootness doctrine, particularly in light of a material lack of clarity in governing law).
Furthermore, this Court has broad supervisory authority in grand jury matters. See,
e.g., Pa.R.A.P. 3331, Note (explaining that the provisions for review of special
prosecutions or investigations generally provide the framework for implementing such
supervision by this Court).
[J-40-2018] - 9
Non-Disclosure Requirement is a tailored version of the oath does not mean that it is
authorized by the Act.”).9
As to the historical practice, Appellants assert that the Office of the Attorney
General had, for several decades prior to when the current entry-of-appearance form
came into being, interpreted the word “attorney,” in Section 4549(b)’s delineation of
those subject to secrecy, as meaning only an attorney for the Commonwealth.10
In this vein, and focusing on Section 4549(b)’s terms, Appellants stress that the
statute twice refers to “attorneys for the Commonwealth” before its treatment of
“attorney[s].” 42 Pa.C.S. §4549(b). According to the Dioceses, the latter should thus be
construed to refer back to the former. As supportive authority, Appellants reference the
principle of statutory construction counseling that “”words and phrases must be viewed
‘not . . . in isolation, but . . . with reference to the context in which they appear.’”
Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC, 636 Pa. 621, 631-32, 146
A.3d 232, 238 (2016) (quoting Meyer v. Community College of Beaver Cty, 625 Pa. 563,
574, 93 A.3d 806, 813 (2014)).11
9 Contrary to Appellants’ portrayal, the supervising judge’s actual interpretive efforts, as
related above, focus closely on the terms of the governing statute and applicable
interpretive principles. Again, it is the Dioceses’ continuing characterization of the non-
disclosure requirement of the entry-of-appearance form as something other than a
secrecy oath that fosters confusion.
10 The OAG replies, correctly, that it is not the source of authority for requirements
imposed on counsel. See Brief for Appellee at 22. Rather, what is required is provided
in the Investigating Grand Jury Act, as enforced by supervising judges in the first
instance. Moreover, we have previously discussed the absence of support attending
the Dioceses’ historical arguments. See supra note 4.
11 Appellants also claim that their position is bolstered by the axiom that “[g]eneral
words shall be construed to take their meanings and be restricted by preceding
particular words.” 1 Pa.C.S. §1903(b). However, this principle of ejusdem generis
generally pertains where general words follow the enumeration of particular classes of
(continued…)
[J-40-2018] - 10
The Dioceses also continue to highlight Section 4549(c)’s treatment of counsel
for witnesses. See, e.g., Brief for Appellants at 25 ([W]hen the drafters of Section 4549
wanted to refer to private counsel, they knew precisely how to do it and did not simply
use the word ‘attorney’”). “Tellingly,” Appellants assert, Section 4549(c) does not
include any prohibition on disclosure by counsel for witnesses. Id. at 25-26.12
Furthermore, Appellants retain their focus upon the incongruity involved in disabling
counsel from making disclosures that client-witnesses may otherwise make of their own
accord. Accord Brief for Amicus Pa. Ass’n of Crim. Def. Lawyers at 21-22 (“It makes no
sense that an attorney for a witness would be gagged in all cases regardless of need
but a witness would be free to discuss his or her testimony in all cases unless the court
finds good cause after a hearing.”).
Regarding Rule of Criminal Procedure 231(C), the Dioceses stress that the rule
applies only to “persons who are to be present while the grand jury is in session.”
Pa.R.Crim.P. 231(C) (emphasis added). Therefore, Appellants reason, any secrecy
obligation should attach only to information that counsel learned as a result of being at
the actual location of a grand jury while it is in session. Conversely, the Dioceses
(…continued)
persons or things. See, e.g., Indep. Oil & Gas Ass'n of Pennsylvania v. Bd. of
Assessment Appeals of Fayette Cty., 572 Pa. 240, 246, 814 A.2d 180, 184 (2002)
(quoting McClellan v. Health Maint. Org. of Pa., 546 Pa. 463, 473, 686 A.2d 801, 806
(1996)). In our judgment, it has no application in the present circumstances, where the
Legislature has twice used a defined term when rendering discrete authority relative to
disclosure by and to “attorneys for the Commonwealth,” and then utilized what appears
to be a broader generic term, i.e., “attorney[s]” when imposing a general prohibition
against other disclosures.
12 In this line of argumentation, Appellants downplay the statute’s treatment of
disclosure of matters occurring before grand juries as a subject unto itself in the
preceding subsection, i.e., Section 4549(b) (entitled “Disclosure of proceedings by
participants other than witnesses”).
[J-40-2018] - 11
argue, the rule does not support the broader commitment to secrecy contained in the
entry-of-appearance form’s non-disclosure requirement, pertaining to “all matters
occurring before the Grand Jury, and all matters and information concerning this Grand
Jury obtained in the course of the representation.”
In this respect, and more broadly, Appellants maintain that the non-disclosure
requirement is patently overbroad. For example, they observe that, per that
requirement, secrecy would presumably attach to:
(i) documents produced by [counsel’s] own client in
response to a grand jury subpoena and the information that
counsel learns from these documents; (ii) information that
counsel obtains from discussions with representatives of the
client; and (iii) information that counsel obtains from third
parties outside of the Grand Jury room.
Brief for Appellants at 29. Accordingly, Appellants ask, at a minimum, for this Court to
curtail the expansive sweep of the non-disclosure requirement.
The OAG, for its part, defends the supervising judge’s determination and
reasoning.
I. Secrecy as Applied to Private Attorneys
Upon review, we agree with the supervising judge that private counsel are
“attorney[s]” and are thus explicitly made subject to the general requirement of secrecy
by Section 4549(b). Significantly, a number of Appellants’ arguments disregard or
downplay relevant considerations as explained throughout our development of the
background. See supra notes 3-4 & 9-12.
In our judgment, moreover, nothing on the face of the statute suggests that the
Court should attribute to the word “attorney[s]” anything other than its ordinary broad
meaning, i.e., those who are licensed to practice law. See 1 Pa.C.S. §1903(a). Along
these lines, we are not persuaded by Appellants’ argument that the Legislature’s use of
[J-40-2018] - 12
the defined term “attorneys for the Commonwealth” twice previously when establishing
disclosure protocols specific to that subset of lawyers signifies that the subsequent use
of the word “attorney[s]” in promulgating the general rule of non-disclosure was also
meant to refer only to that subset. In this regard, it is significant that each of the three
specifications by the Legislature -- two directed to “attorneys for the Commonwealth”
and one to “attorney[s]” -- has a discrete substantive purpose. Accord In re Fortieth
Statewide Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1, at 7 (“These
references to specific subsets of attorneys demonstrate that the legislature knew the
differences between the all-encompassing word ‘attorney’ and specific classifications
within that broad category.”).13 In these circumstances, we find the plain language of
the statute to be clear enough. See generally Commonwealth v. Derhammer, ___ Pa.
___, ___, 173 A.3d 723, 729 (2017) (explaining that the courts are not authorized to
insert words into a statute).14
Notably, as the supervising judge also related, this Court has stressed the
importance of secrecy associated with grand jury proceedings. See, e.g., Investigating
Grand Jury of Phila. Cty., 496 Pa. at 457-58, 437 A.2d at 1130-31. In such a setting, it
seems relatively straightforward that the Legislature would have wished to cast a wide
13 The OAG also correctly highlights that, each time that the Investigating Grand Jury
Act refers to a district attorney, the Attorney General, or a designee of either, and unless
a reference to a particular official is necessary, the enactment specifically employs the
term “attorney for the Commonwealth.” See Brief for Appellee at 14-15 (citing 42
Pa.C.S. §§4543(b), 4546(b) & (c), 4547, 4548(a), 4549(a)-(c), 4550(a) & (b), 4551(a) &
(e), and 4552(c)).
14 We have no doubt that the Legislature, to minimize cumbersomeness, may
sometimes employ shorthand references to terminology previously utilized in a statute.
As related above, however, we conclude that the present context is not one in which it
would be appropriate to assume that it did so, given the material substantive import of
the usage.
[J-40-2018] - 13
net, among those present during grand jury proceedings, in imposing a requirement of
non-disclosure.15
The Dioceses also highlight the seeming incongruity of a client-witness being
permitted to disclose his or her testimony but his or her attorney being precluded from
doing the same. To the extent that this concern is an argument that the Legislature
used the word “attorney,” as it appears in the penultimate sentence of Section 4549(b),
to mean only “attorney for the Commonwealth,” we disagree. First, whatever its appeal
in terms of policy, this argument is insufficient to overcome the plain language of the
statute. See 1 Pa.C.S. §1921(b) (“When the words of a statute are clear and free from
all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.”); see also Derhammer, ___ Pa. at ___, 173 A.3d at 729.
Second, the secrecy obligation concerning “matters occurring before the grand
jury” imposed by Section 4549(b) is plainly broader than a witness’s disclosure of his or
her own testimony permitted by Section 4549(d). Such matters subsume a range of
considerations beyond the mere content of a client-witness’s testimony, including
comments by a supervising judge or the attorney for the Commonwealth made before
the grand jury and evidence which may be proffered or discussed during a witness’s
testimony.16 While we realize that this observation does not wholly discount the
15 In this respect, as the supervising judge and the OAG emphasize, Rule of Criminal
Procedure 231(C) is consistent. See Pa.R.Crim.P. 231(C) (reflecting that a secrecy
oath is to be administered to “[a]ll persons who are to be present while the grand jury is
in session”).
The overbreadth issue, as it relates to attorneys -- such as Appellants’ counsel -- who
have not made a physical appearance before the grand jury, is addressed in Part II of
this opinion, below.
16 Justice Donohue criticizes the above observations as unnecessary to the disposition
of this case. See Concurring and Dissenting Opinion, slip op. at 8-9. From our point of
(continued…)
[J-40-2018] - 14
Dioceses’ policy-based concern, it is offered here in support of our view that
confidentiality must be viewed in the larger perspective.
Third, and in any event, we do not read Section 4549 as a whole to preclude
private attorneys from disclosing that which their clients are plainly permitted to
disclose, particularly given that such attorneys serve in a representational capacity
relative to their clients. While we conclude that lawyers who are privy to grand jury
proceedings are generally to be sworn to secrecy under the applicable statute -- and
that an appropriately crafted entry-of-appearance form may be used to accomplish this
function -- we do not believe that the Legislature intended such confidentiality to extend
(…continued)
view, however, they are analytically related to the matter at hand and lend support to
our material reasoning. Certainly, there could be no rational argument that “matters
occurring before the grand jury” could concern only a particular witness’s testimony.
Indeed, Justice Donohue herself makes the point that “Section 4549(d)’s command that
‘no witness shall be prohibited from disclosing his testimony’ must be understood as a
narrow exception to a broader secrecy requirement.” Concurring and Dissenting
Opinion, slip op. at 5 n.3.
Thus, Justice Donohue’s concern, as it applies to the text above, appears to be more
with the examples that we have provided (comments of a supervising judge or the
attorney from the Commonwealth and evidence which may be presented during a
witness’s testimony) than with the proposition they are offered to support. But those
examples are relatively straightforward areas of concern that can be essential to the
protection of secrecy and the vindication of the policy goals that Justice Donohue’s
opinion develops at length. See id. at 4-5 (citing Investigating Grand Jury of Phila. Cty.,
496 Pa. at 458, 437 A.2d at 1130-31). To the degree that Justice Donohue’s concern is
that the examples are not clear cut (because “comments” by a supervising judge or an
attorney for the Commonwealth may sometimes overlap with witness testimony, as may
“evidence” with which a witness is presented, see id. at 8 n.7), our response is that we
intend the examples to evoke scenarios in which the witness’s testimony is, in fact,
analytically distinct from the comments or evidence seen or heard in the grand jury
room.
Notably, the necessity to distinguish between witness testimony and other matters
arises directly from the governing statute. See 42 Pa.C.S. §4549(d).
[J-40-2018] - 15
in full measure to that which is not otherwise intended to be held in absolute secrecy,
i.e., the testimony of client-witnesses. See 42 Pa.C.S. §4549(d).17 With respect to such
testimony, attorneys should generally be free to act on behalf of their clients in
advancing their material interests, subject only to overriding considerations (including, of
course, the Rules of Professional Conduct and, in the grand jury setting, the necessity
for secrecy when protection is otherwise maintained, see id.).
In sum, we do not read Section 4549(b) as preventing an attorney -- with the
explicit, knowing, voluntary, and informed consent of a client-witness -- from disclosing
the content of the client’s own testimony, when the client is otherwise free to do so of
his or her own accord. Otherwise, however, we hold that Section 4549(b)
straightforwardly forbids attorneys -- including private attorneys -- from revealing
matters occurring before an investigating grand jury, absent permission from the
supervising judge.
Accordingly, to the extent that the entry-of-appearance form remains the vehicle
by which private attorneys are sworn to secrecy, we exercise our supervisory authority
to require that the following statement be appended to it: “I understand that -- with the
explicit, knowing, voluntary, and informed consent of my client or clients, and absent a
specific prohibition by a supervising judge or circumstances implicating prohibitions
arising from the Rules of Professional Conduct -- I may disclose the content of a client-
17 In this regard, we observe that this Court is charged with the regulation of attorneys in
Pennsylvania. See PA. CONST., art. V §10(c). Although our decision here represents an
exercise in statutory interpretation, the constitutional allocation to the Court of the power
to regulate attorneys would likely have raised significant questions had the Legislature
decided explicitly to bar attorneys from acting on behalf of their client-witnesses to
disclose that which the latter are otherwise free to disclose of their own accord. Cf. 1
Pa.C.S. § 1922(3) (articulating presumption that “General Assembly does not intend to
violate the Constitution of the United States or of this Commonwealth”).
[J-40-2018] - 16
witness’s own testimony precisely to the extent that the client-witness may do so under
applicable law.”18
II. Overbreadth
As to the issue of overbreadth, Appellants have correctly related that the terms of
the non-disclosure requirement, as it appears on the entry-of-appearance form, exceed
the secrecy requirements of the Investigating Grand Jury Act. See 42 Pa.C.S. §4549(b)
(requiring non-disclosure only of “matters occurring before the grand jury”). See
generally BARBARA J. VAN ARSDALE, ET AL., 9 FED. PROC., L.ED. §22:794 (2018) (“[T]he
general rule of secrecy does not make everything connected with the grand jury’s
investigation somehow untouchable.”). Furthermore, we agree with the Dioceses that a
proscription against disclosure of “all matters and information concerning this Grand
Jury obtained in the course of the representation” -- applied generally across the field of
all lawyers representing grand jury witnesses or who may otherwise become privy to a
document or information otherwise held in confidence in the grand jury setting --
represents too great an impingement on counsel’s ability to effectively represent their
clients.19
18We realize that our opinion in this case exceeds the facts and circumstances before
the Court, since Appellants’ counsel are not attorneys for a client-witness (and Justice
Donohue is quite correct to recognize that by “client-witness” we refer to a client
presenting oral testimony before a grand jury, see Concurring Opinion, slip op.at 3 n.2).
Nevertheless, this case has naturally segued into a discussion of the requirements as
they pertain to attorneys for client-witnesses; the treatment of such attorneys is a matter
of substantial public importance; and, in any event, we rely upon our supervisory
responsibilities in grand jury matters. See supra note 8.
19 As Appellants relate, the prohibition facially extends to a wide range of information
that is not otherwise confidential in the first instance. Additionally, read literally, the
requirement would prevent lawyers from even discussing confidential information with
their own clients, albeit that both the supervising judge and the OAG recognize that
(continued…)
[J-40-2018] - 17
Accordingly, again per our supervisory prerogative, we will require another
modification to the entry-of-appearance form, to the extent that it continues to serve as
a vehicle to administer a secrecy oath to private attorneys. Specifically, the
commitment to secrecy for “all matters and information concerning this Grand Jury
obtained in the course of the representation” is to be removed and the syntax of the
prior clauses should be adjusted, so that attorneys are bound to keep secret “all that
transpires in the Grand Jury room and all matters occurring before the Grand Jury,
except when disclosure is authorized by law or permitted by the Court.”20
In concluding our treatment of the overbreadth issue, we note that the General
Assembly has not provided a definition of the phrase “matters occurring before the
grand jury.” 42 Pa.C.S. §4549(b). Plainly, as the entry-of-appearance form suggests,
and consistent with a wide body of federal decisional law, the term should be
understood to reach beyond only what actually transpires in a grand jury room. See,
e.g., In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 107, 907 A.2d
505, 516 (Pa. 2006) (permitting disclosure of a notice of submission in the grand jury
context, while implicitly recognizing that grand jury secrecy extends to confidential
submissions to the court).21 See generally WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY
(…continued)
such a reading is untenable. See In re Fortieth Statewide Investigating Grand Jury, No.
571 M.D. 2016, Notice No. 1, at 10; Brief for Appellee at 33 (“[A]n attorney may discuss
with a client matters occurring before a grand jury without violating grand jury secrecy.”).
20 To the extent that Criminal Procedural Rule 231(C) can be read to sweep more
broadly in its requirement of non-disclosure of “any information pertaining to the grand
jury,” Pa.R.Crim.P. 231(C), we direct that it should be construed to align with the
material provisions of the Investigating Grand Jury Act. Additionally, we intend to
invoke the rulemaking process to effectuate a clarifying amendment.
21 Contrary to Justice Donohue’s suggestion, see Concurring and Dissenting Opinion,
slip op. at 8-9, we do not find it to be necessary or useful to refrain from recognizing
(continued…)
[J-40-2018] - 18
J. KING & ORIN S. KERR, 3 CRIM. PROC. §8.5(c) (4th ed. 2017) (“The first lesson of the
federal precedent is that the phrase ‘matter occurring before the grand jury’ is a term of
art, not to be construed literally as encompassing only events that have taken place
before the grand jury.”). Indeed, there is no dispute here that a notice of submission
contains a type of information that is subject to confidentiality in and of itself. Accord In
re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. at 107, 907 A.2d at 516.
Given, however, that the Dioceses’ challenge is focused largely on whether their
counsel is a person subject to the a grand jury secrecy oath in the first instance and
upon the broader sweep of secrecy as reflected on the current entry-of-appearance
form, this case does not present a suitable vehicle to offer additional clarification of the
statutory phrase “all matters occurring before the grand jury.”22
(…continued)
what is evident from prior decisions and in grand jury practice generally, and which
derives from the essential vindication of the policy goals underlying the maintenance of
grand jury secrecy, i.e., that to be effective, secrecy must extend to some range of
matters beyond only what happens before the grand jury in a grand jury room.
22 This opinion is also not focused on special provisions for confidentiality outside the
range of ordinary grand jury secrecy, such as the issuance by supervising judges of
what are colloquially referred to as “gag orders.” Moreover, Appellants do not challenge
the authority of a supervising judge to issue such orders where warranted in discrete
instances. See, e.g., Brief for Appellant at 7 (depicting the procedure whereby,
“[n]ormally, imposition of . . . a gag order” is preceded by “a predicate show-cause
hearing and a formal court order”). Accordingly, nothing here should be read as
restricting a supervising judge’s ability to provide for confidentiality, where warranted, in
discrete matters on the part of either those otherwise subject to secrecy obligations
under the Investigating Grand Jury Act or grand jury witnesses. See 42 Pa.C.S.
§4549(b) (providing for disclosures of matters occurring before the grand jury by those
bound to secrecy, other than as expressly provided in the enactment, “only when so
directed by the court”); id. §4549(d) (prescribing that grand jury witnesses may be
prohibited from disclosing their testimony only upon “cause shown in a hearing before
the supervising judge”).
[J-40-2018] - 19
III. Common Interest and Joint Defense Agreements
Both parties also focus considerable attention in their briefs on common interest
and joint defense agreements, a subject on which the supervising judge commented as
well.
The Dioceses have argued that the non-disclosure requirement, as it appears on
the current entry-of-appearance form, inordinately restricts the essential sharing of
information among counsel for persons or entities that may become involved with a
grand jury investigation, effectively precluding any and all coordination. See, e.g., Brief
for Appellants at 7 (“[T]he avowed purpose of the Non-Disclosure Requirement is to gut
the common interest and joint defense privileges maintained between counsel and
clients.”). Appellants explain that common interest and joint defense agreements are
properly used by attorneys to facilitate such coordination, as they give rise to an
extension of the attorney-client privilege, thus protecting communications among
attorneys representing different parties or among multiple parties represented by a
single attorney. See id. at 32 (citing KEVIN P. ALLEN, THE ATTORNEY-CLIENT PRIVILEGE
AND W ORK-PRODUCT DOCTRINE IN PENNSYLVANIA 80-82 (PBI Press 5th ed. 2016)). In
other words, the common interest and joint defense privileges function as an exception
to the general rule that disclosure of information to third parties constitutes a waiver of
the attorney-client privilege. See In re Condemnation by City of Phila., 981 A.2d 391,
396 (Pa. Cmwlth. 2009).
The supervising judge, however, took the position that there simply is no need for
common interest or joint defense agreements relative to a grand jury investigation, since
such an investigation is not a criminal prosecution. In re Fortieth Statewide
Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1, at 10-11. In this respect, we
distance ourselves from the supervising judge’s view. As the Attorney General
[J-40-2018] - 20
concedes, federal courts recognize that the common interest and joint defense
privileges extend into the grand jury setting, see Brief for Appellee at 24 (citing In re
Qwest Communications Int’l, Inc., 450 F.3d 1179, 1195 (10th Cir. 2006)), and we have
no reason to conclude those privileges should be denied to those involved with grand
jury proceedings in Pennsylvania.23
Finally, we observe that our curtailment of the scope of the secrecy obligation
assumed by attorneys in the grand jury setting ameliorates -- but does not eliminate --
the concerns that the Dioceses raise about information sharing among counsel. More
particularly, relief from the prohibition against counsel’s disclosure of “all matters and
information concerning this Grand Jury obtained in the course of the representation,”
see supra Part II, opens a wider field of information to disclosure among participants in
a common interest arrangement. Nevertheless, we caution that Appellants have cited
no authority for the proposition that a common interest or joint defense agreement
relieves counsel from grand jury secrecy requirements that do pertain, and nothing in
our opinion should be read as affording such relief.24 Accordingly, and again in the
23 Significantly, while certainly an investigation is not a prosecution, potential criminal
exposure can occur long before the filing of charges, and indeed, may arise during the
actual course of grand jury proceedings. Accordingly, counsel for those who have
involvement with such proceedings should be permitted to access the range of
conventional tools that would otherwise be available at law, so long as there is no
conflict with overarching policies (such as secrecy where it pertains) discrete to the
grand jury context.
24 As noted above, we do not address Appellants’ assertions that the non-disclosure
requirement imposed by the entry-of-appearance form at issue here impaired their
statutory right to effective counsel and improperly infringed their counsel’s First
Amendment rights and entitlement to pursue the practice of law. See supra note 5.
Again, we refrain from doing so, in part because our decision to require material
modifications to the form alters central predicates of the present argumentation
pertaining to these additional claims.
[J-40-2018] - 21
absence of some developed counter-advocacy, Section 4549(b) does appear to serve
as a restraint on the range of information that will be available to counsel to share per a
privilege-extending arrangement.25
IV. A Response to Justice Wecht
Justice Wecht takes the opportunity to criticize the Court for relying upon our
supervisory powers relative to grand jury practice. See, e.g., Concurring and Dissenting
Opinion at 7-9. He proceeds to opine, more specifically, that we have inappropriately
employed those powers in a manner that subverts legislative intent. See id. at 9-10.
In terms of this Court’s supervisory role relative to grand juries, in Dauphin Cty.
Fourth Investigating Grand Jury, 610 Pa. 296, 318, 19 A.3d 491, 503 (2011), this Court
has explained that “[t]he very power of the grand jury, and the secrecy in which it must
operate, calls for a strong judicial hand in supervising the proceedings” (emphasis
added)). Justice Wecht nonetheless seems to imply that this Court should refrain from
exercising a meaningful degree of control over grand jury practice.
25 We have no wish to engage in gratuitous commentary here. See Concurring and
Dissenting Opinion, slip op. at 9-10 (Donohue, J.). Rather, responding to the arguments
presented, we express our concern that there may be some fundamental
misapprehensions about the impact of common interest arrangements in the grand jury
setting. Again, Appellants have presented no authority for the proposition that such
private arrangements can be employed to surmount grand jury secrecy, absent
approval of a supervising judge. Accordingly, while Justice Donohue is correct to point
out that our above discussion would not be dispositive in a future case, we intend it to
serve a cautionary role in a sensitive area of the law in which attorneys may run the risk
of contempt sanctions.
We emphasize that the concern is not with the sharing of information protected by grand
jury secrecy among common interests upon approval by a supervising judge. The tenor
of Appellants’ argument, however, is to suggest that common interest arrangements
obviate the need for any such approval.
[J-40-2018] - 22
However, this Court is entrusted with the supervision of the entire judicial system.
See PA. CONST. art. V, §10(c). Additionally, we have explained that the entanglements,
established by the Investigating Grand Jury Act, between grand jury practice and the
judiciary will likely yield the impression, among the citizenry, that grand juries speak with
judicial sanction. See In re 40th Statewide Investigating Grand Jury, ___ Pa. ___, ___
& n.14, ___ A.3d ___, ___ & n.14, 2018 WL 3650493, *6-13 & n.14 (July 27, 2018)
(inter alia, expressing the concern that “the grand jury’s pronouncements will be seen as
carrying the weight of governmental and judicial authority . . . is substantial” (emphasis
added)).
Particularly based on the present experience with Report 1 of the 40th Statwide
Investigating Grand Jury, see id., we believe -- and we have learned -- that courts
should assume a stronger role in supervising the grand jury process, precisely because
the Legislature has reposited that system within judicial control. See id.; see also 42
Pa.C.S. §4542 (incorporating the concept of a “supervising judge” into investigating
grand jury practice (emphasis added)).
In terms of Justice Wecht’s assertion that we have invoked our supervisory
powers to subvert legislative intent, see, e.g., Concurring and Dissenting Opinion, slip
op. at 4, 7-10, we invite a fair reading of our opinion, above. We have, in fact,
interpreted the Investigating Grand Jury Act to permit attorneys to represent their
clients. And, in this regard, although Justice Wecht stresses secrecy in the grand jury
process, see id. at 5-6, he fails to explain why it is somehow an unacceptable intrusion
into secrecy for lawyers to be allowed, in a representational capacity, to disclose to
others what their clients were absolutely free to disclose otherwise. Along these lines,
we simply do not believe that the General Assembly intended an unreasonable result,
i.e., for an attorney to be precluded from disclosing, at the direction of his or her client-
[J-40-2018] - 23
witness, that which the General Assembly has expressly authorized the client-witness to
reveal.26
V. Summary, Conclusion, and Order
In summary, an attorney who will be privy to matters occurring before an
investigating grand jury shall be sworn to secrecy per the requirements of the
Investigating Grand Jury Act, either via an appropriately tailored entry-of-appearance
form or otherwise. The obligation of confidentially generally extends to all matters
occurring before the grand jury, which includes, but is not limited to, what transpires in a
grand jury room. A lawyer otherwise subject to secrecy, however, may disclose a
client’s own testimony to the extent that the client would otherwise be free to do so
under applicable law. Such disclosure is also subject to the client’s express, knowing,
voluntary, and informed consent; the Rules of Professional Conduct; and specific
curtailment by a supervising judge in discrete matters following a hearing based on
cause shown.
The order of the supervising judge is vacated. To the extent that the entry-of-
appearance form continues in use as a vehicle to administer a secrecy oath to attorneys
in grand jury matters, the document is to be modified according to the requirements of
this opinion.
This appeal is concluded.
26 Parenthetically, we take no issue with Justice Wecht’s explanation of the derivation of
the entry-of-appearance form from circumstances connected with a grand jury
investigation involving administrators of the Pennsylvania State University. See
Concurring and Dissenting Opinion, at 1-3. Of course, such derivation has little to do
with the substantive correctness of the form. Accordingly -- and given that former
Justice Cynthia Baldwin is engaged in attorney disciplinary proceedings relative to her
conduct in the above setting -- we frankly saw no need to inject her involvement into the
present discussion.
[J-40-2018] - 24
Justices Baer, Todd, Dougherty and Mundy join the opinion.
Justice Baer files a concurring opinion in which Chief Justice Saylor and Justices
Todd, Dougherty and Mundy join.
Justice Donohue files a concurring and dissenting opinion.
Justice Wecht files a concurring and dissenting opinion.
[J-40-2018] - 25