Appeal from the Superior Court of the District of Columbia (SP-558-03) (Hon. Rufus G. King III, Motions Judge)
Before Wagner, Chief Judge, and Steadman and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Attorneys are charged with two weighty responsibilities - to serve their clients with loyalty and zeal and to advance the administration of justice. To enable attorneys to fulfill these responsibilities, the law guarantees the confidentiality of legitimate attorney-client communications and enjoins attorneys entrusted with confidential communications to advise their clients to comply with the law. The privilege of confidentiality does not attach to attorney-client communications in furtherance of a crime or fraud, however. Nor does the attorney-client privilege protect the confidentiality of documents, otherwise discoverable, that the client furnishes to his attorney for the purpose of seeking legal advice. But the client may retain a limited Fifth Amendment privilege against self-incrimination in connection with the compelled production of such documents from the attorney. In that case, the government must grant the client use immunity for the act of production in order to compel the attorney to produce the documents.
The present appeal, taken by the Public Defender Service ("PDS") after it was held in civil contempt for refusing to comply with a grand jury subpoena, requires us to apply these principles. Issued as part of an investigation into witness tampering by persons associated with a PDS client, the subpoena required PDS to produce any written statements in its possession that had been taken from the allegedly coerced witness and to reveal the client's confidential communications to his PDS attorney about those statements. The motions judge found the crime-fraud exception applicable and ordered the PDS attorney (who is not implicated in the alleged wrongdoing) to comply with the subpoena. The judge held PDS in contempt and imposed a sanction in order to permit it to take an immediate appeal of his ruling.
We reverse and vacate the order holding PDS in contempt. We hold that the government did not establish that the crime-fraud exception applied to the presumptively privileged attorney-client communications at issue, primarily because the government made no showing that those communications actually were in furtherance of an ongoing or future crime or fraud. Even if PDS's client himself delivered to his attorney a falsely exculpatory statement that the witness had been coerced into signing, for the purpose of enabling the attorney to use the statement to impeach the witness at the client's upcoming trial, there was no evidence that the illegal scheme was advanced; to the contrary, PDS has disavowed any intent to use the witness statement, for impeachment purposes or otherwise. The crime-fraud exception does not apply where the attorney talks the client out of committing the crime or fraud he contemplates or stops the client's scheme dead in its tracks. This does not mean that PDS may refuse to produce the allegedly coerced witness statement itself, however. The attorney-client privilege does not shield the statement, nor does the work product doctrine. At most, given probable cause to believe that PDS's client transmitted a coerced witness statement (the fruit of a crime) to his attorney, the client may have a limited Fifth Amendment act of production privilege with respect to the statement. In the event the client asserts that privilege, its validity and effect may be addressed on remand.
Because this case involves ongoing grand jury proceedings, the record has been sealed and we limit our discussion of the facts to those necessary to our disposition of the appeal. See (Emanuel) Davis v. United States, 641 A.2d 484, 488 (D.C. 1994) (noting the importance of grand jury "policy of secrecy"). A PDS trial attorney ("Attorney") represents a defendant ("Client") on murder charges filed inSuperior Court. Client has been held in the District of Columbia Jail pending trial (which had been set for April of 2003 but which has been held in abeyance to await the outcome of this appeal). A witness who has implicated Client in the murder ("Witness") also was being held at the Jail (on unrelated charges). During Witness's confinement there, in December 2002, inmates identified as Client's associates allegedly threatened Witness with a knife and forced him to write and sign two statements recanting what he had told the government about Client's involvement in the murder. The government learned of the incident and convened a grand jury to investigate it as obstruction of justice. On February 25, 2003, the grand jury issued a subpoena duces tecum directing Attorney to appear as a witness and to bring "[a]ny statements or documents in your possession written or signed by [Witness], and any envelopes or other tangible evidence related to such statements or their origin." At PDS's request, the grand jury withdrew the subpoena to Attorney and substituted an otherwise identical subpoena directed to PDS.
PDS moved to quash the subpoena, primarily on the grounds that it called for information protected by the attorney-client privilege and the work product doctrine. In its opposition to PDS's motion to quash, the government argued that the crime-fraud exception vitiated any claim of privilege. The government stated that it "ha[d] information that individuals associated with [Client] coerced a potential witness (W-1) into writing a false statement concerning [Client's] pending murder case. The investigation also has revealed that [Attorney] visited W-1, made specific inquiries about a statement purportedly written by W-1, and implied that such a statement was in his possession."
Over PDS's objection, the government submitted an ex parte factual proffer in support of its opposition to the motion to quash. This proffer was signed by an Assistant United States Attorney but was unsworn and did not include any affidavits, grand jury testimony, or other evidence. The proffer recited that Client knew of Witness's cooperation with the prosecution against him, and it described in some detail, with references to corroborating evidence, how associates of Client had coerced Witness at the Jail into writing two falsely exculpatory statements for Client's benefit. *fn1 The proffer also reported that Client's attorney from PDS had subsequently interviewed Witness at the Jail in early February 2003 and asked him whether he had been forced to write a statement. According to the proffer, Attorney implied to Witness that he had the statement in his possession by saying that he had "not brought it with him" to the Jail.
After holding two hearings on the issue, the motions judge declined to quash the grand jury subpoena. Overruling PDS's objection to the ex parte nature of the government's submission, the judge accepted the government's factual proffer and found it sufficient to trigger the crime-fraud exception to the attorney-client privilege. That exception, the judge stated, applied when "the client in question was committing or intending to commit a crime imminently and whe[n] the attorney/client communication[s] were in furtherance of that crime." The judge ordered PDS to produce to the grand jury any statement of Witness in its possession and held that Attorney would have to appear before the grand jury and answer "limited questions" about the origin of the statement and the circumstances under which it was obtained, including what Client had told him about the source of the statement. PDS asked the judge to review any statements of Witness in its possession in camera before determining whether the crime-fraud exception applied to them. The judge denied this request as well as PDS's request that he review in advance the specific questions that the grand jury proposed to ask Attorney.
In order to appeal, PDS informed the judge that it would instruct Attorney not to comply with the ruling. The judge held PDS in civil contempt, imposed a fine of one dollar for each day of non-compliance with the subpoena, and suspended execution of the monetary sanction pending the outcome of this appeal. See In re Sealed Case (Synanon), 244 U.S. App. D.C. 11, 15, 754 F.2d 395, 399 (1985) ("An order in an ongoing proceeding to compel testimony or document production ordinarily is not appealable unless the party to whom it is addressed refuses to respond and is held in contempt."); D.D. v. M.T., 550 A.2d 37, 42-43 (D.C. 1988) ("[W]here the trial court has imposed no remedial or coercive sanction conditioned upon compliance with the contempt order, an adjudication of civil contempt lacks the certainty, specificity and finality essential for judicial review.").
The ultimate question that PDS raises in this appeal is whether the government made a sufficient showing to invoke the crime-fraud exception to the attorney-client privilege. To evaluate the sufficiency of the government's showing, we must address several antecedent issues, including the propriety of an ex parte presentation by the government; the standard of proof that the government must meet in its showing; what exactly must be shown for the crime-fraud exception to be established; and whether the showing in this case met the requirements.
Before we begin our analysis of these and other issues, a word is in order about the standard of review that we shall employ. The parties disagree over the appropriate standard of review in this case, and they each can cite cases to support their respective positions. PDS argues that our review in this case is de novo because the scope of the attorney-client privilege is predominantly a question of law. See In re Grand Jury Proceeding Impounded, 241 F.3d 308, 312 (3d Cir. 2001); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 858-59 (9th Cir. 1991) *fn2 ; cf. In re Sealed Case (RNC), 343 U.S. App. D.C. 103, 106-07, 223 F.3d 775, 778-79 (2000) (reviewing de novo where "the application of the crime-fraud exception turns on a pure question of law"). The government argues that a trial court's ruling concerning the application of the crime-fraud exception may be disturbed on appeal only for abuse of discretion. See In re Grand Jury Subpoenas, 144 F.3d 653, 659 (10th Cir. 1998); In re Grand Jury Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994); In re Sealed Case (Synanon), 244 U.S. App. D.C. at 15-16, 754 F.2d at 399-400; United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984); In re Special Sept. 1978 Grand Jury (II), 640 F.2d 49, 59 (7th Cir. 1980).
In our view, there is no "one size fits all" answer to this question. Rulings on claims of testimonial privilege typically involve intermingled questions of fact and of law. See Littlejohn v. United States, 705 A.2d 1077, 1082 (D.C. 1997) (holding that ruling on invocation of self-incrimination privilege "may implicate questions both of fact and of law"). Nonetheless, here as in Littlejohn, the legal questions predominate. Our analysis of the validity of the ruling on privilege in this case does not turn on the correctness of purely factual determinations by the motions judge. The judge did not base his decision on an assessment of witness credibility or on findings of disputed historical facts; indeed, the judge heard no testimony and received no evidence other than the government's unsworn ex parte proffer (which is also before us). Cf. Jones v. United States, No. 98-CF-1857, slip op. at 8-9 (D.C. July 10, 2003) (deferring to trial judge's ruling that attorney-client privilege was waived when ruling was based on factual determination and credibility assessment).
Nor were the particular rulings we are asked to review committed in any significant degree to the motions judge's discretion. While trial court determinations on motions to quash typically are reviewed for abuse of discretion, see United States v. Nixon, 418 U.S. 683, 702 (1974), the justification for that comparatively deferential standard of review is largely absent when the motion to quash is based on a claim of attorney-client privilege. Motions to quash on grounds other than privilege typically turn on fact-specific determinations of unreasonableness and oppressiveness, which are quintessentially discretionary judgment calls. See Super. Ct. Crim. R. 17 (c). In making those determinations, the trial court "has the ability to choose from a range of permissible conclusions" and "can rely largely upon his own judgment in choosing among the alternatives." Johnson v. United States, 398 A.2d 354, 361 (D.C. 1979). When the motion to quash is based on a claim of privilege, however, there is no such "range of permissible conclusions." Id. The recipient of the subpoena is either entitled to the protection of the privilege or not. See Littlejohn, 705 A.2d at 1082 n.9 (rejecting view that a judge's ruling on a witness's claim of testimonial privilege is reviewable only for abuse of discretion). Thus, our analysis in this case must focus not on the motions judge's findings of fact or exercise of discretion, but on the correctness of the judge's legal conclusions - his statement of the applicable lawand his determination that the government's proffer met the law's requirements.
It is the primary role of this court to articulate legal rules. "[W]here the matter under review requires invocation or declaration of a fact-free general principle of law, the court will designate the issue as a question of law, and review the matter 'de novo.'" (Milton) Davis v. United States, 564 A.2d 31, 35 (D.C. 1989) (en banc). In the present case, therefore, we shall "apply the non-deferential de novo standard" to such legal questions as the scope and requirements of the crime-fraud exception, the burden and standard of proof, and the acceptability vel non of an ex parte proffer by the government to meet its burden. Littlejohn, 705 A.2d at 1082.
Whether the government made an adequate prima facie showing (accepting its proffer at face value) to support the crime fraud exception to the attorney client privilege is not a purely legal question. It aptly may be characterized as a "mixed question" of law and fact in which "the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard." (Milton) Davis, 564 A.2d at 35 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). "There is no one standard of review that is uniformly applied to 'mixed questions,'" id., but they normally are reviewed de novo when the legal aspects are dominant. See, e.g., Ornelas v. United States, 517 U.S. 690, 697 (1996) (holding that ultimate determinations of probable cause and reasonable suspicion in the Fourth Amendment context are mixed questions that should be reviewed de novo); Littlejohn, 705 A.2d at 1082 (holding the appropriateness of a witness's invocation of the privilege against self-incrimination to be a mixed question subject to de novo review). "In reviewing the trial court's resolution of a mixed question of fact and law, we consider, among other things, whether the issue to be decided more closely resembles one of fact or of law, and whether the trial court or the appellate court is in a better position to render the decision with the higher degree of accuracy." Id. Since we are not called upon to assess the credibility of the government's proffer in this case, but only its sufficiency, such considerations persuade us that our review of that issue should be de novo.
The grand jury has "the ultimate responsibility to determine whether there is probable cause to believe a crime has been committed," and in aid of that function it has "extraordinary" investigative powers. In re Antitrust Grand Jury, 805 F.2d 155, 160 (6th Cir. 1986); see (Emanuel) Davis, 641 A.2d at 488. The grand jury can "generally 'compel the production of evidence or testimony of witnesses'" through the issuance of subpoenas. In re Grand Jury Subpoena, 223 F.3d 213, 216 (3d Cir. 2000) (quoting United States v. Calandra, 414 U.S. 338, 342-43 (1974)); see Super. Ct. Crim. R. 17.
Attorneys possess no broad immunity from being called to testify in grand jury investigations. The grand jury even has the power to subpoena attorneys to testify against their clients, so long as the subject of the testimony is not privileged and the client's constitutional rights are not violated. See In re Walsh, 623 F.2d 489, 493 (7th Cir. 1980); see also United States v. R. Enterprises, 498 U.S. 292, 297 (1991). Nevertheless, such subpoenas do "implicate serious policy concerns." In re Grand Jury Matters, 751 F.2d 13, 18 (1st Cir. 1984). Particularly when an attorney is representing the client in a pending case, "the mere issuance of the subpoena may undermine the integrity of the attorney-client relationship." In re Grand Jury Subpoena to Attorney (Under Seal), 679 F. Supp. 1403, 1411 (N.D.W. Va. 1988). "The very presence of the attorney in the grand jury room, even if only to assert valid privileges, can raise doubts in the client's mind as to his lawyer's unfettered devotion to his client's interests and thus impair or at least impinge upon the attorney-client relationship." In re Grand Jury Investigation (Sturgis), 412 F. Supp. 943, 946 (E.D. Pa. 1976). The First Circuit has identified five adverse consequences of grand jury subpoenas to attorneys seeking evidence against their clients:
[T]he serving of a grand jury subpoena on an attorney to compel evidence concerning a client may: 1) chill the relationship between lawyer and client; 2) create an immediate conflict of interest for the attorney/witness; 3) divert the attorney's time and resources away from his client; 4) discourage attorneys from providing representation in controversial criminal cases; and 5) force attorneys to ...