No. 75-2109.United States Court of Appeals, District of Columbia Circuit.Argued December 18, 1975.
Decided February 3, 1976.
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Frederick H. Weisberg, Washington, D.C., with whom J. Patrick Hickey, Washington, D.C., was on the brief, for Public Defender Service as amicus curiae.
Roger A. Finzel, Washington, D.C., filed a brief on behalf of Coalition to End Grand Jury Abuse as amicus curiae.
Anthony D. Pirillo, Jr. and Salvatore J. Cucinotta, Philadelphia, Pa., filed a pro se brief as amicus curiae.
David Epstein, Washington, D.C., with whom Sol Z. Rosen, David S. Barr and William B. Peer, Washington, D.C., were on the brief, for appellants.
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Carl S. Rauh, Principal Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Brian W. Shaughnessy, Robert R. Chapman and Jordan A. Luke, Asst. U.S. Attys., were on the brief, for appellee.
Appeal from the United States District Court for the District of Columbia (D.C.Civil 75-0193)
Before BAZELON, Chief Judge, and McGOWAN and ROBB, Circuit Judges.
PER CURIAM:
[1] This case was heard on an expedited basis to review an order of the District Court (1) disqualifying Sol Z. Rosen, Esquire, from representing more than one of the over one hundred pressmen members of Local 6 of the Newspaper and Graphic Communication Union who have been or may be subpoenaed before the April 1975 Federal Grand Jury investigating the violence that occurred at the Washington Post on October 1, 1975; and (2) requiring those pressmen who wish to be represented by counsel to retain separate counsel not retained by any other subpoenaed pressman. Our review of the record leads us to conclude that the District Court lacked sufficient grounds to issue the challenged order, which we therefore vacate.[1] I
[2] The most recent labor contract in effect between the Washington Post Company and Local 6 expired at midnight on September 30, 1975. By 5:30 A.M. on October 1, 1975, Local 6 had declared that it was on strike, and, while more than 100 pressmen were working the early morning shift at the Post, all seventy-two printing units of the Post’s nine presses were seriously damaged.[2]
Five days later a federal grand jury initiated a criminal investigation of the disturbances at the Post. Twenty-one pressmen who were working at the time the Post’s property was damaged were subpoenaed to testify before the grand jury on October 8, 10, and 14, 1975; they were notified that at that time they were not considered targets or subjects of the grand jury investigation.
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Rosen studiously avoided individual consultation with his clients.[4] As a result, he does not know the extent, if any, to which the twenty-one subpoenaed witnesses participated in or observed any criminal activity.
[5] In the course of his “representation” of the subpoenaed witnesses, Mr. Rosen accompanied them to, and was present outside, the grand jury room during the questioning periods; in fact, on a number of occasions the witnesses were excused from the grand jury room to consult with Mr. Rosen. Attorney Rosen also agreed to comply with a request by Mr. Chapman of the United States Attorney’s office that the latter be permitted to speak to each of thePage 604
witnesses separately in his office. Again apparently aware of the potential for conflict of interest, attorney Rosen decided to remain outside Mr. Chapman’s office while the witnesses were being questioned. As before the grand jury, on a number of occasions witnesses interrupted their sessions in Mr. Chapman’s office to consult with Mr. Rosen.
[6] Of the twenty-one witnesses subpoenaed before the grand jury, two testified that they had not seen anything, and the other nineteen invoked the privilege against self-incrimination. Many of the witnesses asserted that privilege to questions concerning age, marital status, number of children, name of parents, and relationship with their attorney.[5] II
[7] The United States Attorney’s office, concerned with the effect of these assertions of privilege on the ability of the grand jury to function effectively, filed with the District Court on October 21, 1975 a “Motion for Separate Counsel for Grand Jury Witnesses.” The Government argued in that motion (1) that the pressmen were making “blind, indiscriminate and legally unwarranted assertions” of the Fifth Amendment privilege; (2) that the pressmen were not “receiving and indeed cannot receive effective assistance of counsel where they are all represented by one lawyer who has a blatant conflict of interest;” and (3) that “[a]s a result, the efforts of the grand jury to ascertain the truth . . . are being obstructed.” Motion at 4. Attorney Rosen filed his opposition to the Government’s motion on November 6, 1975. After hearing the arguments on this motion on November 7, 1975, the District Court issued the challenged order on November 13, 1975. In a memorandum explaining its decision the District Court found that the witnesses had a Sixth Amendment right to counsel at this stage of the grand jury proceedings, and a First Amendment right to associate for the purpose of retaining legal representation, but that balanced against those interests was the public interest in the effective functioning of the grand jury. Reasoning that the impairment of the pressmen’s Sixth Amendment interest as a result of the order was minimal in that each witness “retains the right to choose from a limitless pool of qualified attorneys,” and that the intrusion on their First Amendment interests was minimal in that “[i]t is only for this single criminal proceeding that the pressmen are unable jointly to retain counsel,” the court concluded that these “minimal and temporary” impairments were justified by the need for “the grand jury, now at a standstill, to proceed with its investigation full force and with no fear of compromising the secrecy of its proceedings.”
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7. Later that day, on consideration of the Government’s motion, the original panel extended the stay pending further order of this court, referred the appeal to a merits panel for expedited consideration, and appointed the Public Defender Service to file a brief and participate in oral argument as amicus curiae.
Having considered the briefs and arguments,[7] we reach the conclusions set forth below.[8]
III
[9] The parties assert that this appeal presents as ripe for decision serious questions
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concerning both the nature of the rights of subpoenaed witnesses to the counsel of their choice at the pre-indictment stage of a grand jury proceeding and the need for an effective grand jury.[9] The Government argues that the appropriate approach for this court to take with respect to the issue of multiple representation is to balance the public interest in an effective grand jury against the rights of the witnesses to the counsel of their choice, rights which the Government considers to be of less than constitutional dimension. Appellants Rosen and Local 6, on the other hand, would have us rule that it was improper for the District Court to balance an “unnamed constitutional right” of the Government to “have an easy time before the grand jury” against the “constitutional” rights of the witnesses to the counsel of their choice.[10] Having considered the record as well as the briefs, however, we are not persuaded that this appeal presents an opportunity for us to pass on the merits of those questions.[11]
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[10] At the outset, we think it essential to emphasize how little we can discern from the record as to the precise nature of the asserted conflicting interests. The record makes it clear that attorney Rosen, the United States Attorney, and the District Court consider Mr. Rosen to be acting in a representative capacity on behalf of the subpoenaed witnesses. And the record also shows that attorney Rosen, the Government, and the District Court are aware of the potential conflicts of interest inherent in Mr. Rosen’s multiple representation of those witnesses. But what is strikingly absent from the record is any indication of the views of the individual witnesses with respect to their legal representation. There is no testimony or other evidence in the record indicating which of the subpoenaed witnesses consider Mr. Rosen to be their personal legal representative; how the witnesses would characterize the nature of their attorney-client relationship with Mr. Rosen; whether they are personally aware of the potential conflicts of interest inherent in Mr. Rosen’s multiple representation; whether given such conflicts of interest they would still prefer to be represented by Mr. Rosen rather than another attorney; and, finally, whether they would expect to continue to assert the privilege against self-incrimination even if, denied Mr. Rosen’s services, they elected to dispose with counsel entirely or to retain separate and exclusive counsel.[12] [11] The primary thrust of the Government’s position on this appeal is that Mr. Rosen’s failure to interview his clients thoroughly, albeit prompted by ethical considerations, has obstructed the functioning of the grand jury in that the witnesses are making “legally unwarranted” assertions of the Fifth Amendment privilege and are unable to discuss with the prosecutor through their attorney the possibility of formal or informal immunity in exchange for testimony. In light of this position, the responses of the witnesses to questions such as those listed above would be highly relevant to a determination of the existence as well as the scope of the actual controversy between the Government and Rosen and the witnesses. It may well be, for example, that the subpoenaed witnesses in this case do not view Mr. Rosen as their personal legal representative, but rather as a legal consultant retained by the union both to instruct them with respect to the protection afforded by the Fifth Amendment and to be on hand outside the grand jury room in the event they have any general questions on that matter; and the individual subpoenaed witnesses may also have no intention of retaining personal legal representatives to investigate the particulars of their involvement, to offer qualified legal advice with respect to their assertion of the privilege and their available options, or to negotiate on their behalf with the United States Attorney. If that eventually proved to be the situation,Page 608
the separate representation issue would be moot, and a ruling on our part with respect to the validity of the District Court’s order requiring the retention of separate counsel would be an advisory opinion.
[12] These problems with the record might have been avoided had the Government pursued the traditional method of dealing with witnesses who make “blind, indiscriminate and legally unwarranted assertions” of the privilege against self-incrimination. The Government could have brought each witness before the District Court for a ruling with respect to whether the privilege was properly asserted. The District Court can order the witnesses to answer particular questions only if it is “`perfectly clear,from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s]cannot possibly have such tendency’ to incriminate.” Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118
(1951), citing Temple v. Commonwealth, 75 Va. 892, 898 (1881) (emphasis in original). A witness who continues to refuse to respond after being ordered by the court to answer grand jury questions found not to implicate the privilege against self-incrimination subjects himself to sanctions of civil and criminal contempt.[13] [13] At a hearing determining the applicability of the privilege to particular questions asked by the grand jury, the District Court would certainly be free to inform itself about the Government’s allegations of conflicts of interest and inadequate representation by inquiring whether the witness was represented by Mr. Rosen, whether the witness was aware of the limitation on Mr. Rosen’s ability to negotiate immunity in exchange for testimony, whether given that limitation the witness would prefer counsel other than Mr. Rosen, and whether the witness proposed to continue to assert the privilege under all circumstances. [14] This familiar and established procedure was available to the Government when it found itself confronted with “legally unwarranted” assertions of the privilege against self-incrimination. A motion for separate counsel is a novel and, we believe, inappropriate response at such an early stage in the grand jury proceeding. If the Government had instead sought judicial rulings with respect to the “legally unwarranted” assertions of the privilege, the present controversy might have been eased if not eliminated. In the first place, the District Court might have ordered the subpoenaed witnesses to answer some questions (such as those concerning age and marital status) as to which the Government believes the witnesses have no right to assert the privilege. Moreover, upon questioning the witnesses with respect to their relationship with Mr. Rosen and their awareness of his potential conflicts of interests, the District Court might have discovered that some of the witnesses were desirous of having separate counsel advise them with respect to an intelligent exercise of the privilege and to confer with the United States Attorney on their behalf. In any event, we can find no justification in the circumstances of this case for the substitution of a motion for separate counsel for utilization of the traditional procedure.
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[15] Of course, we do not mean to imply that the procedure outlined above will inevitably lead to cooperation of the witnesses with the grand jury. That procedure will give the Government an opportunity to substantiate its claim that the assertions of privilege are invalid, but the District Court, applying the standard of Hoffman v. United States, supra, in the case of witnesses who were in the pressroom at the time the vandalizing acts occurred, may have no basis for denying assertions of privilege once the questioning has passed beyond the purely formal stage. By enactment of Congress, the United States Attorney retains the option, if he finds it to be in the public interest, of offering statutory immunity to those witnesses who have validly asserted the Fifth Amendment privilege. 18 U.S.C. §§ 6002, 6003. Once offered immunity, the witnesses cannot refuse to answer on the basis of the privilege against self-incrimination Id. § 6002. It seems to us that the circumstances of this case present precisely the type of situation for which Congress intended to provide the Government with an effective tool for discovering the truth without risking violations of the Constitution in the delicate areas of freedom of association and representation by counsel of one’s choice. As the Second Circuit has recently observed, “[t]he accommodation between the right of the Government to compel testimony, on the one hand, and the constitutional privilege to remain silent, on the other, is the immunity statute.” United States v. Tramunti, 500 F.2d 1334, 1342, cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673(1974). Until accommodation in that manner has been demonstrated to be not feasible or contrary to the public interest,[14] it is surely premature to seek it through disqualification of counsel whose advice to his clients the Government does not like. [16] The order is therefore vacated. [17] It is so ordered.
Civil No. CA 9694-75 (Super.Ct.D.C., filed Oct. 28, 1975).
Attorney Rosen, however, was retained by the Union to represent the interests of all the subpoenaed witnesses, and as a result he found himself constrained in the actions he could take to protect the interests of his clients. See Transcript at 4 (Argument of Mr. Rosen) (Nov. 7, 1975). For example, if he had thoroughly interviewed each of his clients, he may well have received from witness A information that was detrimental to the interests of witness B. We agree with amicus Public Defender Service that under those circumstances “the attorney would be torn between advising B of the information learned from A, thereby breaching his confidential relationship with client A, or trying to advise client B as if the attorney did not know what client A told him, when he knows very well that client A’s revelations should have a material impact on the attorney’s recommendation to B and B’s decisions and courses of action.” Brief at 15. Rosen would also be precluded from recommending to any of his clients that they enter into negotiations with the United States Attorney that would prejudice the interests of his other clients.
If Mr. Rosen is representing the union as well as the subpoenaed witnesses who are members of Local 6, there is an even greater potential for conflict of interest problems. Unfortunately, we cannot discern from the record the precise nature of the relationship between attorney Rosen and Local 6; for example, attorney Rosen filed the notice of appeal in this case on behalf of himself and the union, but in papers filed with both this court and the District Court he styles himself “counsel for the witnesses.” The record does indicate that the union is paying attorney Rosen’s fees on behalf of the subpoenaed union members, but this fact alone does not justify a conclusion that Rosen owes a duty of legal representation to the union as well as to the subpoenaed witnesses. At a minimum, the ABA Code of Professional Responsibility obligates Rosen not to permit the union “to direct or regulate his professional judgment” in rendering legal services to the witnesses. DR 5-107(B); see
Standards Relating to the Defense Function, supra, at § 3.5(c).
In any event, if Rosen is representing both the union and the subpoenaed witnesses, he runs the risk of conflicting interests in addition to those involved solely in multiple representation of the witnesses, especially given the Post’s civil suit against the union, see note 2 supra. For example, it is possible that thorough questioning of the witnesses by Rosen might indicate that the witnesses were marginal participants who would testify, in exchange for immunity, that the violence was actually union sponsored. Cooperation in such circumstances with the United States Attorney would be in the interests of one set of clients — those witnesses willing to testify — but clearly not in the best interests of the union. Given the limited information in the record before us, we cannot say that such conflicts do exist, but the potential is certainly there.
As noted in text, attorney Rosen apparently concluded that the most appropriate response to these potential conflicts of interest was simply not to talk to his “clients” individually, a decision which has a tremendous impact on the quality of representation his clients are apt to receive. Of course, it was incumbent upon attorney Rosen, if he was acting as the personal legal representative of these subpoenaed witnesses, to inform them of these conflicts of interest. See Standards Relating to the Defense Function, supra, at § 3.5; American Bar Association code of Professional Responsibility, DR 5-105(c). The record indicates that Mr. Rosen claims that he told his clients something about his conflict of interest, but the record fails to disclose the details of that communication. Transcript at 9 (Argument of Mr. Rosen) (Nov. 7, 1975).
In the context of a trial rather than a grand jury proceeding, it has been held that an order granting a motion to disqualify counsel is a final judgment under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). E. g., Hull v. Celanese Corp., 513 F.2d 568, 570-71 (2d Cir. 1975); Draganescu v. First Nat’l Bank, 502 F.2d 550, 551 (5th Cir. 1974); Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1383 n. 1 (3d Cir. 1972) cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964
(1973); United States v. Hankish, 462 F.2d 316, 318 (4th Cir. 1972) (dictum); Brown v. Miller, 52 U.S.App.D.C. 330, 286 F. 994 (1923) (attorney himself appeals; jurisdiction assumed without discussion). In fact, although there was originally some authority for the view that orders denying a motion for disqualification were not appealable under Cohen, e. g., Fleischer v. Phillips, 264 F.2d 515, 516-17 (2d Cir.), cert. denied sub nom., Fleischer v. Benjamin, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Marco v. Dulles, 268 F.2d 192, 193
(2d Cir. 1959), the weight of recent authority is definitely in the direction of treating the denial of such motions as final orders, e. g., Yablonski v. UMW, 147 U.S.App.D.C. 193, 454 F.2d 1036, 1038 n. 9 (1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972) (order denying motion for disqualification appealable where the disqualification was predicated upon ethical considerations and “additionally upon significant impingement on a specific legislative policy”) Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974) (en banc) (reviewing the cases) Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 270-71 (2d Cir. 1975) (citing Silver Chrysler Plymouth, supra); Kroungold v. Triester, 521 F.2d 763, 765 (3d Cir. 1975); American Roller Co. v. Budinger, 513 F.2d 982, 983 (3d Cir. 1975); Greene v. Singer Co., 509 F.2d 750, 751 (3d Cir. 1971); United States v. Garcia, 517 F.2d 272, 275 (5th Cir. 1975) (criminal trial) Uniweld Prods., Inc. v. Union Carbide Corp.,, 385 F.2d 992, 994
(5th Cir. 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 853, 19 L.Ed.2d 980 (1968); Tomlinson v. Florida Iron Metal, Inc., 291 F.2d 333, 334 (5th Cir. 1961) (order denying motion for disqualification is final where “harm resulting therefrom is in the nature of the frustration of a public policy which cannot be avoided or mitigated by any appeal taken after the trial”) Fullmer v. Harper, 517 F.2d 20, 21 (10th Cir. 1975). But see Cord v. Smith, 338 F.2d 516, 521 (9th Cir. 1964).
We find ourselves in agreement with those cases holding that an order granting a motion for disqualification is appealable, and it is our view that the factors justifying that conclusion in the trial context are equally applicable to grand jury proceedings. Indeed, even if we were to conclude that the question of appealability was closer than we think it to be, we would be disposed to take a more expansive approach to the collateral order doctrine in the grand jury context than in the trial context since allowing such appeals is less likely to involve “the mischief of economic waste and of delayed justice,” Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092 (1945). Cf. United States v. Wilson, 421 U.S. 309, 318, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), in which Chief Justice Burger, writing for the Court, had an opportunity to compare trials and grand jury proceedings in terms of the obstruction that would be caused by requiring Rule 42(b) criminal contempt hearings for refusal to testify: “A grand jury ordinarily deals with many inquiries and cases at one time, and it can rather easily suspend action on any one, and turn to another while proceedings under Rule 42(b) are completed. . . . Trial courts, on the contrary, cannot be expected to dart from case to case any time a witness who has been granted immunity decides not to answer questions.”
(1965) (The rights [of third parties], pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.”); Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 431-33 (1974).
The Pennsylvania Supreme Court expressly disclaimed reliance on the supervising judge’s argument that multiple representation interfered with the Sixth Amendment right of the witnesses to effective counsel since the twelve policemen had been advised of the potential conflicts and had nevertheless chosen to continue the multiple representation. In upholding the supervising judge’s disqualification of the two attorneys, the Court pursued a balancing approach, weighing on one side the state’s interest impaired by multiple representation and the particular fee arrangement, and on the other the witnesses’ First and Sixth Amendment interests and the interests of the attorney in pursuing their occupation. The court concluded that “the degree of infringement resulting from the supervising judge’s order is the minimum necessary to insure the state interests while at the same time the infringement is justified by the extent of the scope of the state interests and the extent of harm which is sought to be prevented.” Id. at 906.
The Court seems to have been influenced considerably by the nature of the fee arrangement that the attorneys had with the policemen’s union. The Court found on the basis of the testimony of the attorneys that as a result of the fee arrangement the attorneys would not on their own raise the subject of cooperation with the grand jury with any of the witnesses, and moreover that they would withdraw as counsel for any witness who indicated that he would consider cooperation and advise that witness to retain other counsel. Id. at 904. Concluding that this fee arrangement deprived the witnesses of their right to the full and complete loyalty of their attorney, the Court was willing to uphold that portion of the supervising judge’s order requiring the witnesses to retain counsel unrelated to the Fraternal Order of Police Id. at 904, 906.
As to the portion of the supervising judge’s order requiring the witnesses to retain separate and exclusive counsel, the Supreme Court’s opinion relies, erroneously we think, on the view that that “portion of the order is essential to secure the secrecy of the grand jury proceeding.” Id. at 906. We particularly note this reasoning in light of the fact that the District Court in this case, which was aware of the Pirillo
opinion, also reasoned that multiple representation “must inevitably lead to a breach of secrecy of the grand jury proceedings.” At least with respect to federal grand juries, there is no general obligation on the part of a grand jury witness to refrain from disclosing the contents of his testimony before the grand jury. Fed.R.Crim.P. 6(e); e. g., In re Grand Jury Summoned October 12, 1970, 321 F.Supp. 238, 240 (N.D.Ohio 1970); In re Russo, 53 F.R.D. 564, 570 (D.C.Cal. 1971). Each of the subpoenaed pressmen below was free to disclose his testimony not only to Mr. Rosen, but also to the other pressmen and anyone else. Of course, a witness is also free to disclose his testimony to a particular person on the condition that the latter not disclose the testimony to anyone else. Enforcement of that condition rests, however, with the witness and not with the state.
The District Court in this case was concerned that Mr. Rosen “ethically would be compelled to inform other clients of [one witness’s] testimony if detrimental to them.” Mr. Rosen, as noted earlier, has avoided that problem by keeping himself unacquainted with each witness’s version of the events at the Post.
(1974), especially in light of the fact that a cautionary instruction will be required in any event for those immunized witnesses who are accomplices.