In Re Grand Jury Proceeding., 721 F.2d 1221 (9th Cir. 1983). · Go Syfert
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In Re Grand Jury Proceeding., 721 F.2d 1221 (9th Cir. 1983). Cases Citing This Book View Copy Cite
53 citation events (3 in the last 25 years) across 14 distinct courts.
Strongest positive: In Re Hotels Nevada, LLC (nvb, 2011-09-14)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 27 distinct citers.
discussed Cited as authority (rule) In Re Hotels Nevada, LLC
Bankr. D. Nev. · 2011 · confidence medium
Graham, Federal Practice and Procedure, Evidence § 5484, at n. 388 (2011) (quoting Schofield v. United States (In re Grand Jury Proceeding), 721 F.2d 1221, 1222 (9th Cir.1983)), there are circumstances, not proved here, in which billing material might be covered by the attorney-client privilege.
discussed Cited as authority (rule) Stephen Ralls, Esq., Witness-Appellant v. United States
9th Cir. · 1995 · confidence medium
Likewise, in In re Grand lury Proceeding (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983), this court ruled that the Government need not make a preliminaiy showing of legitimate need and relevance before issuing a subpoena to an attorney who is representing the target of a grand jury investigation.
discussed Cited as authority (rule) In Re Subpoena to Testify Before the Grand Jury, Thomas J. Alexiou, Witness-Appellant v. United States (2×)
9th Cir. · 1994 · confidence medium
There is, however, an exception to this rule, based on Perlman v. United States, 247 U.S. 7, 13 , 38 S.Ct. 417, 419 , 62 L.Ed. 950 (1918), recognized in Ryan, 402 U.S. at 533 , 91 S.Ct. at 1582 . “[A]n immediate appeal is proper when the subpoena is directed to a third party, here the appellant’s attorney, because that party normally will not be expected to risk a contempt citation but will instead surrender the sought-after information, thereby precluding effective appellate review at a later stage.” In re Grand Jury Subpoenas (Marger), 695 F.2d 363, 365 (9th Cir.1982); In re Grand Jury…
cited Cited as authority (rule) In Re Grand Jury Proceedings. Thomas McKay Witness-Appellant v. United States
9th Cir. · 1994 · confidence medium
In re Grand Jury Proceedings (Schofield), 721 F.2d 1221, 1223 (9th Cir.1983).
discussed Cited as authority (rule) In Re Grand Jury Investigation. United States of America v. The Corporation 1
9th Cir. · 1992 · confidence medium
See In re Grand Jury Witness (Salas), 695 F.2d at 362 ; In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1223 (9th Cir.1983.) What has not been clearly established, however, is when such in camera review is appropriate.
cited Cited as authority (rule) In Re Grand Jury Subpoenas Dated December 10, 1987. Does I Through IV v. United States
9th Cir. · 1991 · confidence medium
In re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir.1983).
discussed Cited as authority (rule) In Re Grand Jury Proceedings
9th Cir. · 1989 · confidence medium
United States v. Nixon, 418 U.S. 683, 691 , 94 S.Ct. 3090, 3099 , 41 L.Ed.2d 1039 (1974); In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983); In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 364-65 (9th Cir.1982).
discussed Cited as authority (rule) United States v. Franklyn G. Perry
9th Cir. · 1988 · confidence medium
In In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.1983), we refused to require such a preliminary showing in the pre-indictment setting because doing so would “not advance the administration of justice,” id. at 1223 (rejecting the Fourth Circuit’s rationale in In Re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005 , vacated and withdrawn, 697 F.2d 112 (4th Cir.1982) (en banc)), and because Harvey “conflicted with this circuit’s narrow construction of the supervisory power of district courts over grand juries.” Id. at 1222 n. 1.
discussed Cited as authority (rule) In Re Grand Jury Subpoena Dated June 5, 1985: John Doe v. United States
9th Cir. · 1987 · confidence medium
In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983); In re Grand Jury Subpoena Duces Tecum (Lahodny), 695 F.2d 363, 365 (9th Cir.1982); see also Perlman v. United States, 247 U.S. 7 , 38 S.Ct. 417 , 62 L.Ed. 950 (1918) (in order to protect interests of a powerless third party, rule of finality not applicable where the subpoenaed party cannot be expected to risk a contempt citation); National Mortgage Equity Corp., 821 F.2d at 1424 (discussing narrowness of Perlman exception to rule of finality); Niren, 784 F.2d at 941-42 (same).
cited Cited as authority (rule) United States v. Hirsch
9th Cir. · 1986 · confidence medium
In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1223 (9th Cir. 1983); In re Grand Jury Witness (Salas and Waxman), 695 F.2d 359, 362 (9th Cir. 1982).
cited Cited as authority (rule) In Re Grand Jury Subpoenas. United States
9th Cir. · 1986 · confidence medium
In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1223 (9th Cir.1983); In re Grand Jury Witness (Salas and Waxman), 695 F.2d 359, 362 (9th Cir.1982).
discussed Cited as authority (rule) In Re Grand Jury Subpoena Served Upon John Doe, Esq., Richard Roe, Intervenor-Appellant v. United States (2×)
2d Cir. · 1985 · confidence medium
In coming to this conclusion, however, the court relied on three cases — Horowitz, Colton , and In re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir.1983) — that are completely in-apposite.
discussed Cited as authority (rule) In Re Grand Jury Subpoenas Served February 27, 1984
E.D. Wash. · 1984 · confidence medium
For example, in denying the subpoenaed party’s request that the government be required to make a preliminary showing of need and relevance, this circuit stated: “No affidavit of relevance and need must be introduced; legitimate purpose may be derived from the fact that a subpoena is necessary to a legitimate pursuit and the presumption that the government obeys the law.” In Re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir.1983) (citing Hergenroeder, supra, in approval).
cited Cited "see" Andrus v. United States Department of Energy
D. Idaho · 2016 · signal: see · confidence high
See In re Grand Jury Proceeding, 721 F.2d 1221, 1222 (9th Cir.1983).
cited Cited "see" In Re Grand Jury Proceedings (Doe). United States of America v. John Doe, and Jack Roe, Intervenor-Appellant
9th Cir. · 1993 · signal: see · confidence high
See In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1223 (9th Cir.1983).
cited Cited "see" In Re Grand Jury Recalcitrant Witness. John Doe, Witness-Appellant v. United States
9th Cir. · 1992 · signal: see · confidence high
See In re Grand Jury Proceeding, 721 F.2d 1221, 1222-23 (9th Cir.1983).
cited Cited "see" Stephen Tornay, Galene Tornay v. United States of America A.R. Demeter, Special Agent, Internal Revenue Service
9th Cir. · 1988 · signal: see · confidence high
See In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.1983).
cited Cited "see" Bank of America v. Feldman
9th Cir. · 1987 · signal: see · confidence high
See In re Grand Jury Proceedings (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983); In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 364-65 (9th Cir.1982).
cited Cited "see" In Re National Mortgage Equity Corporation Mortgage Pool Certificates Litigation
9th Cir. · 1987 · signal: see · confidence high
See In re Grand Jury Proceedings (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983); In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 364-65 (9th Cir.1982).
cited Cited "see" No. 85-2307
8th Cir. · 1986 · signal: see · confidence high
See In re Grand Jury Proceedings, 721 F.2d 1221, 1223 (9th Cir.1983). 12 III.
cited Cited "see" In re Grand Jury Proceedings (85 Misc. 140)
8th Cir. · 1986 · signal: see · confidence high
See In re Grand Jury Proceedings, 721 F.2d 1221, 1223 (9th Cir.1983).
cited Cited "see" United States v. Stephen Anthony Gonsalves
9th Cir. · 1986 · signal: see · confidence high
See In Re Grand Proceeding (Schofield), 721 F.2d 1221 , 1222 n. 1 (9th Cir.1983). 2 .
discussed Cited "see" In Re Grand Jury Proceedings, John Doe (Arnold Weiner, Doe's Attorney). John Doe v. United States (2×)
6th Cir. · 1985 · signal: see · confidence high
See In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1222-23 (9th Cir.1983); In re Grand Jury Proceedings (Hergenroeder), 555 F.2d 686 (9th Cir.1977) (per curiam). 9 Finally, Doe cites our decision in In re Grand Jury Subpoena Dated November 8, 1979, 622 F.2d 933 (6th Cir.1980) (per curiam).
cited Cited "see" In Re Grand Jury Subpoenas Addressed to Heuwetter
S.D.N.Y. · 1984 · signal: see · confidence high
See In re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir.1983).
discussed Cited "see, e.g." Whetstone v. Olson
Wash. Ct. App. · 1986 · signal: see also · confidence low
App. 666 , 700 P.2d 350 (1985) (trial court's determination, after conducting in camera review, that documents were privileged upheld on appeal); see also In re Grand Jury Proceeding, 721 F.2d 1221 (9th Cir. 1983) (if disputed, materials sought should be submitted to the court for an in camera inspection). 4 For the elements of a prima facie case of work environment sexual harassment, see Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401 , 693 P.2d 708 (1985).
cited Cited "see, e.g." Newton v. National Broadcasting Company, Inc.
9th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.1983).
cited Cited "see, e.g." Newton v. National Broadcasting Co.
9th Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.1983).
In Re Grand Jury Proceeding. Stephen W. Schofield and North Shore Porsche and Volkswagen Repair, Intervenors/appellants/cross
v.
United States of America, Appellee/cross
83-1743.
Court of Appeals for the Ninth Circuit.
Dec 13, 1983.
721 F.2d 1221
Cited by 35 opinions  |  Published

721 F.2d 1221

14 Fed. R. Evid. Serv. 964

In re GRAND JURY PROCEEDING.
Stephen W. SCHOFIELD and North Shore Porsche and Volkswagen
Repair, Intervenors/Appellants/Cross Appellees,
v.
UNITED STATES of America, Appellee/Cross Appellant.

Nos. 83-1743, 83-1748.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Oct. 6, 1983.
Decided Dec. 13, 1983.

Paul A. Tomar, Honolulu, Hawaii, for intervenors/appellants/cross appellees.

Michael Chun, Asst. U.S. Atty., Honolulu, Hawaii, for appellee/cross appellant.

Appeal from the United States District Court for the District of Hawaii.

Before CHAMBERS, SNEED and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

The district court granted in part and denied in part attorney Robert J. LeClair's motion to quash a grand jury subpoena. Intervenors Stephen W. Schofield and North Shore Porsche and Volkswagen Repair appeal, arguing that a preliminary showing of need and relevance must be made by the government before a subpoena duces tecum will be enforced against the prior attorney of a subject of grand jury investigation. The United States appeals, urging that the district court erred when it required this preliminary showing as to fees and expenses paid by Schofield to a prior attorney. That part of the district court's decision denying the motion to quash is affirmed, and that part of the decision granting the motion to quash is reversed and remanded.

I. BACKGROUND

[*~1221]1

Robert J. LeClair was served with a subpoena duces tecum requiring his appearance at a grand jury hearing. The subpoena directed him to testify and bring "any records or documents pertaining to any financial transaction with STEPHEN W. SCHOFIELD and/or NORTH SHORE PORSCHE AND VOLKSWAGEN REPAIR" during a particular time period. Although Schofield and North Shore (hereinafter together referred to as Schofield) had retained LeClair as their attorney during the time specified in the subpoena, at the time of the grand jury investigation he was no longer in their employ.

2

LeClair filed a motion to extend time for compliance with the subpoena and to quash in part. The extension was granted. Schofield subsequently filed a petition to intervene. This petition was also granted. Following filing of memoranda by both parties, the district court granted the motion to quash to the extent that it related to fees and expenses paid to LeClair by Schofield. To obtain this information, the government would be required to make a preliminary showing, by affidavit, of legitimate need and relevance. The motion to quash was, in all other respects, denied.

3

Immediate appeal is proper because the subpoena was directed to a third party. In re Grand Jury Subpoena Duces Tecum (Lahodny), 695 F.2d 363, 365 (9th Cir.1982).

II. DISCUSSION

4

In the instant matter, the district court determined that before a grand jury subpoena duces tecum could be enforced against the prior attorney of the target of a grand jury investigation, the government would be required to make a preliminary showing of legitimate need and relevance.[1] The district court believed that this showing, to be made by affidavit, was necessary to assist it in determining whether the attorney-client privilege applied to the subpoenaed testimony and documents regarding fees and expenses paid to the attorney by the target. Based on the law of this circuit, we disagree.

5

The general principles applicable to the attorney-client privilege in this circuit are well settled. The privilege protects only those confidential communications made by a client to an attorney in order to obtain legal assistance. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). It extends to the client's ulterior motive for litigation or retention of an attorney. In re Grand Jury Witness (Salas), 695 F.2d 359, 362 (9th Cir.1982). "The purpose of the privilege is to protect and foster the client's freedom of expression. It is not to permit an attorney to conduct his client's business affairs in secret." Matter of Fischel, 557 F.2d 209, 211 (9th Cir.1977).

6

The existence of an attorney-client relationship, or the fee arrangement between an attorney and his client, is generally not privileged or protected by the privilege. In re Michaelson, 511 F.2d 882, 888 (9th Cir.1975). This general rule is subject to what has been characterized as the Baird exception: "A client's identity and the nature of that client's fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought." United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir.1977) (citing Baird v. Koerner, 279 F.2d 623, 630 (9th Cir.1960)).

7

Initially, the party seeking information must demonstrate a legitimate interest in the requested information. Hodge and Zweig, 548 F.2d at 1354. No affidavit of relevance and need must be introduced; legitimate purpose may be derived from the fact that the subpoena is necessary to a legitimate pursuit and the presumption that the government obeys the law. See id. at 1355; In re Grand Jury Proceedings (Hergenroeder), 555 F.2d 686 (9th Cir.1977). If disputed, the materials sought should be submitted to the court for an in camera inspection, with the party asserting privilege providing an explanation of how the information fits within that privilege. In re Grand Jury Witness (Salas), 695 F.2d at 362. This enables a supervising court to issue a protective order regarding privileged portions before turning the materials over to the grand jury. Id. This procedure does not foreclose the witness from asserting attorney-client privilege or other available defenses to specific requests for testimony or production during the grand jury appearance.

8

This circuit has refused to require disclaiming affidavits, holding that

9

[i]n view of the presumption that the government obeys the law ... [there is] no reason to inject into routine grand jury investigations the delay and imposition upon district courts that will be opened up by a rule institutionalizing these disclaiming affidavits.

10

Hergenroeder, 555 F.2d at 686. This is the rule that must be applied in the instant matter. No preliminary affidavit, disclaiming ill intent, will be required of the government where a grand jury has subpoenaed testimony or material evidence in good faith. To rule otherwise would not advance the administration of justice. Id.

III. CONCLUSION

11

The district court erred when it required the government to submit a preliminary showing of relevance and need, by affidavit, before obtaining evidence concerning fees and expenses. Proper assertion of the attorney-client privilege does not require such disclaimers; instead, the burden is on the party asserting privilege to demonstrate how the information sought fits within it. In view of this rule, the decision of the district court granting the motion to quash must be

[*~1222]12

REVERSED and REMANDED FOR FURTHER CONSIDERATION; in all other respects, the decision of the district court is AFFIRMED.

1

In reaching this decision, the district court relied on the reasoning of the Fourth Circuit decision, In re Grand Jury No. 81-1 (Harvey), 676 F.2d 1005 (4th Cir.1982). That opinion was withdrawn by the Fourth Circuit, en banc. In re Grand Jury No. 81-1, 697 F.2d 112 (4th Cir.1982). Although this court is free to adopt the Harvey rationale, we do not do so in the instant matter. Not only is it factually distinct, it conflicts with this circuit's narrow construction of the supervisory power of district courts over grand juries. United States v. Chanen, 549 F.2d 1306 (9th Cir.1977)