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IN RE GRAND JURY PROCEEDINGS

December 7, 1999

IN RE GRAND JURY PROCEEDINGS.


The opinion of the court was delivered by: Norma Holloway Johnson, Chief Judge.

MEMORANDUM ORDER

Presently before the Court is the motion of _____ and the law firm of _____ to quash grand jury subpoenas duces tecum and to appoint counsel to represent and advise defendant _____ with regard to these subpoenas. Also before the Court is the motion of _____ to intervene and to join in the motion of the _____ firm to quash the subpoenas. A brief recitation of pertinent facts will be helpful in addressing the merits of these motions.

I. BACKGROUND

On _____, _____ was indicted and charged with conspiracy to distribute and to possess with intent to distribute more than 500 grams of cocaine, more than 50 grams of cocaine base, more than 100 grams of phencyclidine, more than one kilogram of heroin, and marijuana, in violation of the Controlled Substance Act, 21 U.S.C. § 846.*fn1 _____ other people were indicted along with _____ on charges stemming from this alleged narcotics conspiracy. On the day the indictment was handed down, a warrant was issued for _____ arrest.

_____ surrendered himself to the United States Marshal at this courthouse on _____. He was accompanied at the time of his surrender by Attorneys _____ and _____. Upon his surrender, _____ was interviewed by a representative of the Pretrial Services Agency. He informed the PSA representative that he had not worked for two and a half years. Thus, he claimed to have no source of income. _____ later told a Deputy United States Marshal that he was a self-employed handy man, but when he was processed the next day, he refused to provide any information regarding employment. _____ was promptly arraigned by Judge Lamberth. At his arraignment, _____ entered appearances on behalf of _____ as his retained counsel.

Later that day, _____ and _____ filed a motion before Judge Lamberth seeking to withdraw from representing _____ and citing the government's request for fee information as creating a conflict of interest. In their motion to withdraw, they further claimed that _____ objected to the disclosure of fee information. In response to their withdrawal motion, the United States denied that any of the fee information requested was privileged or otherwise protected from disclosure. In the government's view, such fee information is fully discoverable as it is relevant to an ongoing grand jury investigation. The United States further asserted that the request for this non-privileged, discoverable information could not possibly create a conflict of interest between _____ and his counsel.

On November 12, 1999, while the motion to withdraw was pending, the grand jury issued subpoenas duces tecum to _____ and the custodian of records for the _____ law firm. Before seeking these subpoenas from the grand jury, the government attorneys sought and obtained authorization for the subpoenas from the United States Attorney for the District of Columbia and the Assistant Attorney General for the Criminal Division of the United States Department of Justice.*fn2 The three grand jury subpoenas are identical in substance, directing that the _____ firm produce:

  Any and all documents pertaining to all incoming and
  outgoing payments or receipt or disbursement of funds
  from, for, by, or on the behalf of _____ relative to
  all legal and personal matters handled by you or by
  your law firm directly or indirectly, or through
  referral, including those handled by members,
  partners, associates, or employees in their
  individual capacities, including but not limited to:
  1. All fee records, including fee agreements,
     receipts for payment, ledger entries and references
     reflecting payment dates, payment amounts, and
     forms of payment, including denominations of
     currency;
  2. All bank account checks, money orders or other
     monetary instruments, or entries reflecting the
     conversion or transfer of any such payment or any
     portions thereof; and
  3. All bank account deposit tickets or deposit
     entries reflecting deposits of such payments or any
     portion thereof.

These grand jury subpoenas have a return date of November 19, 1999.

On November 18, 1999, the _____ firm filed, on its own behalf, a motion to quash the grand jury subpoenas and a motion to have the Court appoint independent counsel to represent _____ interest in the subpoena dispute. At the request of the _____ firm, the Court held an emergency hearing on its motions. After hearing argument from the parties, the Court took the motions under advisement and scheduled a follow up hearing for the next morning. The Court further directed that the _____ firm appear with all documents responsive to the grand jury subpoenas enclosed in a sealed envelope, signed across the seal by Attorneys _____

On the morning of November 19, 1999, counsel for the _____ firm appeared before the Court with all documents responsive to the grand jury subpoenas sealed in two envelopes which were opened in the presence of the parties without allowing the government to review the contents of the documents. The first envelope, containing six pages, was marked as grand jury exhibit 1. Counsel for the _____ firm represented that exhibit 1 contains documents for which no specific claim of attorney-client privilege or work product doctrine is made, solely a general assertion of confidentiality and a request that the Court exercise its supervisory function to protect _____ from government interference in his relationship with his attorneys. The second envelope, containing two pages, was marked as grand jury exhibit 2. Counsel for the _____ firm claimed that it contained redacted attorney notes that should be protected from disclosure by the work product doctrine. It was represented that these documents were redacted in order to protect non-responsive notations and that all remaining material is covered by the work product doctrine. At ...


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