Whitehouse v. United States District Court

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1776

SHELDON WHITEHOUSE, IN HIS OFFICIAL CAPACITY
AS UNITED STATES ATTORNEY FOR THE DISTRICT
OF RHODE ISLAND, ET AL.,
Plaintiffs - Appellees,

v.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND, ET AL.,
Defendants - Appellants.

No. 94-1777

SHELDON WHITEHOUSE, IN HIS OFFICIAL CAPACITY
AS UNITED STATES ATTORNEY FOR THE DISTRICT
OF RHODE ISLAND, ET AL.,
Plaintiffs - Appellees,

v.

SUPREME COURT OF RHODE ISLAND, ACTING CHIEF JUSTICE
JOSEPH R. WEISBERGER, FLORENCE K. MURRAY, DONALD F. SHEA,
VICTORIA LEDERBERG AND DAVID D. CURTAIN,
AS ACTING CHIEF DISCIPLINARY COUNSEL, ET AL.
Defendants - Appellants.

No. 94-1889

SHELDON WHITEHOUSE, IN HIS OFFICIAL CAPACITY
AS UNITED STATES ATTORNEY FOR THE DISTRICT
OF RHODE ISLAND, ET AL.,
Plaintiffs - Appellants,

v.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND, ET AL.,
Defendants - Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Warren C. Nighswander, with whom Sulloway & Hollis was on

brief for appellants U.S. District Court for the District of
Rhode Island, et al.
John F. Dolan, with whom Elizabeth F. Sullivan and Rice

Dolan & Kershaw were on brief for appellants Supreme Court of

Rhode Island, et al.
Lauren E. Jones and Jones Associates on brief for American

Civil Liberties Union, Rhode Island Affiliate, National
Association of Criminal Defense Attorneys and Rhode Island
Association of Criminal Defense Attorneys, amici curiae.
S. Michael Levin, Mark W. Freel, Melissa D. Famiglietti and

Edwards & Angell on brief for the Rhode Island Bar Association,

amicus curiae.
Margaret E. Curran, Assistant United States Attorney, with

whom Craig N. Moore, Assistant United States Attorney, and Sara

Criscitelli, U.S. Department of Justice, were on brief for

appellees.

April 20, 1995

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TORRUELLA, Chief Judge. The main question for decision
TORRUELLA, Chief Judge

is whether a United States District Court has the power to adopt

a local rule that requires federal prosecutors to obtain judicial

approval before they serve a subpoena on an attorney to compel

evidence concerning a client. The United States District Court

for New Hampshire held that the federal district court in Rhode

Island has the power to adopt such a rule with respect to trial

subpoenas, but does not have the power to do so with respect to

grand jury subpoenas. For the reasons stated herein, we conclude

that the United States District Court for Rhode Island has the

power to adopt the local rule in question, both with respect to

trial and grand jury subpoenas. We therefore affirm in part and

reverse in part.

BACKGROUND
BACKGROUND

To fully appreciate the important interests at stake in

this case, it is necessary briefly to review some of the recent

history leading to this lawsuit.

I. Attorney-Subpoenas
I. Attorney-Subpoenas

Until recently, federal prosecutors rarely subpoenaed

attorneys to compel testimony relating to their clients. This

practice changed in the 1980s as the federal government stepped

up its fight against organized crime and narcotics trafficking.

Most significantly, Congress passed several new federal statutes

which, in the eyes of federal prosecutors, make attorneys fertile

ground for eliciting incriminating information about the targets

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of federal investigations and prosecutions.1

Because service of a subpoena on an attorney implicates

the attorney-client relationship, and thus raises ethical issues

for prosecutors, the United States Department of Justice issued

guidelines for federal prosecutors seeking to subpoena an

attorney. See Executive Office for the United States Attorneys,

Department of Justice, United States Attorneys' Manual 9-

1 See generally Federal Prosecutorial Authority in a Changing

Legal Environment: More Attention Required, H.R. Rep. No. 986,

101st Cong., 2d Sess. 31 (1990) (chronicling the increased use of
attorney subpoenas); Roger C. Cramton, Lisa K. Udell, State

Ethics Rules and Federal Prosecutors: The Controversies over the

Anti-Contact and Subpoena Rules, 53 U. Pitt. L. Rev. 357, 362-69

(1992) (same).

New federal laws with implications for the attorney-client
relationship include: the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. 1961-68 (1988); the Continuing
Criminal Enterprise Act, 21 U.S.C. 848 (1988) (evidence that
legal representation was provided by a benefactor, for
participation in a criminal enterprise, relevant to prove
existence of criminal enterprise); the Comprehensive Forfeiture
Act of 1984, Pub. L. No. 98-473, 98 Stat. 2040 (codified as
amended at 18 U.S.C. 1961-68 (1988) and 21 U.S.C. 853, 881
(1988)) ("relation back" provision allowing government to seize
assets intended for, or paid to, lawyer as legal fees); the Tax
Reform Act of 1984, Pub. L. No. 98-369, 98 Stat. 494 (codified at
26 U.S.C. 60501 (1988)) (attorneys required to report
identities of clients who pay fees with cash payments in excess
of $10,000); and Money Laundering Control Act of 1986, 100 Stat.
3207-18 (codified as amended at 18 U.S.C. 1956-57 (1988))
(criminalizing certain monetary transactions involving knowing
use of funds derived from an illicit source).

Prosecutors generally subpoena attorneys under these new laws
to elicit evidence with respect to fee arrangements and client
identity. See, e.g., In re Grand Jury Subpoena for Attorney

Representing Criminal Defendant Reyes-Requena, 913 F.2d 1118 (5th

Cir. 1990) (benefactor payments), cert. denied, 111 S. Ct. 1581

(1991); In re Grand Jury Subpoenas (Anderson), 906 F.2d 1485

(10th Cir. 1990) (same); In re Grand Jury Subpoena Served Upon

Doe (Slotnick), 781 F.2d 238 (2d Cir. 1985) (same), cert. denied

sub nom. Roe v. United States, 475 U.S. 1108 (1986).

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2.161(a) (1985).2 In addition, the American Bar Association

(the "ABA") adopted an amendment to its Model Rules of

Professional Conduct creating an ethical prohibition against

subpoenaing a lawyer/witness without a showing of need, an

adversary hearing, and prior judicial approval. See Model Rules

of Professional Conduct Rule 3.8(f), reprinted in 6 Laws. Man. on

Prof. Conduct (ABA/BNA) 25, 26 (Feb. 28, 1990). The instances of

federal prosecutors subpoenaing attorneys to compel evidence

regarding theirclients have, nevertheless, continuedto increase.3

2 The guidelines require federal prosecutors to obtain the
approval of the Assistant Attorney General in charge of the
Criminal Division prior to issuing a subpoena on counsel. Before
approving a subpoena to an attorney, the Assistant Attorney
General must find that the information is necessary for an
investigation or prosecution, unavailable from other sources, not
protected by privilege, that the subpoena is narrowly drawn, and
that the need for the information outweighs any potential adverse
effects on the attorney-client relationship. Id.

3 In the first year that the Department of Justice Guidelines
were in effect, July 18, 1985 to July 31, 1986, the Department
approved 411 attorney subpoenas, an average of 33 per month. In
the period from March 1987 through October 1987, the Department
rejected only ten requests for attorney subpoenas, slightly more
than one per month. Max D. Stern & David Hoffman, Privileged

Informers: The Attorney Subpoena Problem and a Proposal for

Reform, U. Pa. L. Rev. 1783, 1818 n.176 (1988) (citing Justice

Department statistics). In addition, according to Department of
Justice statistics, from October 1, 1987 through September 30,
1988, the Department received 363 requests from federal
prosecutors to subpoena 523 attorneys, of which 278 subpoenas
were for grand jury proceedings and 85 for trial. From October
1, 1988 through September 30, 1989, the Department received 410
requests from federal prosecutors to subpoena 649 attorneys, of
which 321 subpoenas were for grand jury proceedings and 89 for
trial. Exercise of Federal Prosecutorial Authority in a Changing

Legal Environment, 1990: Hearing Before the Subcomm. on

Government Information, Justice and Agriculture, of the House

Comm. on Government Operations, 101st Cong., 2d Sess. 408 (1990)

(Appendix 2), cited in Andrea F. McKenna, A Prosecutor's

Reconsideration of Rule 3.10, 53 U. Pitt. L. Rev. 489, 491 n.5

(1992). See also United States v. Klubock, 832 F.2d 649, 658

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II. The Present Litigation
II. The Present Litigation

In January 1984, the Rhode Island Supreme Court

established the Committee to Study the Rules of Professional

Conduct (the "Rules Committee") to study and provide

recommendations regarding whether Rhode Island should adopt the

ABA's Model Rules of Professional Conduct. In February 1987, the

Rules Committee published a list of proposed rules and solicited

comment from all members of the Rhode Island Bar. The Rhode

Island Supreme Court later held a public hearing and received

additional comments on the proposed rules. On November 1, 1988,

the Rhode Island Supreme Court adopted the proposed Rules of

Professional Conduct as an amendment to Rhode Island Supreme

Court Rule 47. Among the rules adopted was Rule 3.8(f), which

provides:

Rule 3.8. Special Responsibilities of a
Rule 3.8. Special Responsibilities of a
Prosecutor. The prosecutor in a criminal
Prosecutor.
case shall:

* * *

(f) not, without prior judicial
approval, subpoena a lawyer for the
purpose of compelling the lawyer to
provide evidence concerning a person who
is or was represented by the lawyer when
such evidence was obtained as a result of
the attorney-client relationship.

On April 20, 1989, the United States District Court for Rhode

Island issued an order incorporating the Rhode Island Rules of

(1st Cir. 1986) (noting that, in the District of Massachusetts
alone, from 50 to 100 attorney subpoenas per year were served by
federal prosecutors from 1983 to 1986), vacated, 832 F.2d 664

(1st Cir. 1987) (en banc by an equally divided court).

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Professional Conduct, including Rule 3.8(f), into its local rules

(federal rule hereinafter referred to as "Local Rule 3.8(f)").4

On August 2, 1991, the United States Attorney for Rhode

Island petitioned the Rhode Island Supreme Court requesting that

the court amend the state rule to waive its application to

federal prosecutors practicing before Rhode Island's federal

courts. The state court invited briefs from the United States

Attorney and interested members of the Rhode Island Bar and,

after a hearing, denied the petition to amend. The United States

Attorney then wrote to the United States District Court for Rhode

Island requesting that it exempt federal prosecutors from Local

Rule 3.8(f). When the district court denied that request, the

United States Attorney petitioned this court for a writ of

mandamus requiring the district court to exempt federal

prosecutors from the local rule. We dismissed the petition,

stating that "the proper method for mounting a facial challenge

to the validity of [Local] Rule 3.8(f) . . . is through an action

for declaratory and/or injunctive relief filed in the district

4 Several states, in addition to Rhode Island, adopted
variations of the ABA's Model Rule. See, e.g., Mass. Sup. Jud.

Ct. Rule 3:08, PF 15 (adopted by United States District Court for
Massachusetts), Tenn. Ct. C.P.R. & DR 7-103(C); N.H. R.P.C. 4.5;
Va. Sup. Ct. R. 3A:12(a) (adopted as procedural rather than
ethical rule); and Pa. Rule of Prof. Conduct 3:10. New York,
Illinois and the District of Columbia considered and rejected the
rule. See 6 Laws. Man. on Prof. Conduct (ABA/BNA) 28, 29, 53,

55, 172, 175. Pennsylvania's rule, which pertained only to grand
jury subpoenas, was struck down by the United States Court of
Appeals for the Third Circuit as beyond the court's rule-making
power. Baylson v. Disciplinary Board of the Supreme Court of

Pennsylvania, 975 F.2d 102 (3d Cir. 1992), cert. denied, 113 S.

Ct. 1578 (1993).

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court."

The United States Attorney, and two of his assistants

(the "plaintiffs"), then commenced the instant action against the

United States District Court for Rhode Island and its sitting

judges (collectively, the "federal defendants"), the Rhode Island

Supreme Court and its sitting justices, and Rhode Island's Chief

Disciplinary Counsel (collectively, the "state defendants"),

seeking declaratory and injunctive relief to prevent the

defendants from enforcing the state or federal versions of Rule

3.8(f) against federal prosecutors practicing in Rhode Island's

federal courts.5

Upon cross motions for summary judgment, the district

court struck down Local Rule 3.8(f) as applied to grand jury

subpoenas but upheld the rule as applied to trial subpoenas. The

district court 1) granted plaintiffs' motion for summary judgment

in part, holding Local Rule 3.8(f) invalid as applied to grand

jury subpoenas because it exceeds the federal district court's

limited rule-making power; 2) held that the state version of Rule

3.8(f) cannot be applied to federal prosecutors at the grand jury

stage without violating the Supremacy Clause of the United States

Constitution; and 3) granted the federal defendants' motion for

summary judgment in part, holding Local Rule 3.8(f) as applied to

trial subpoenas within the district court's rule-making

authority. Almond v. U.S. Dist. Court for Dist. of R.I., 852 F.

5 The case was originally brought in the United States District
Court for Rhode Island, and subsequently transferred to the
United States District Court for New Hampshire.

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Supp. 78 (D.N.H. 1994). These cross-appeals followed.

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STANDARD OF REVIEW
STANDARD OF REVIEW

The material facts are undisputed. We review de novo

the district court's rulings of law made in connection with a

summary judgment motion. See LeBlanc v. Great Am. Ins. Co., 6

F.3d 836, 841 (1st Cir. 1993), cert. denied, U.S. , 114 S.

Ct. 1398, 128 L.Ed.2d 72 (1994).

DISCUSSION
DISCUSSION

We addressed the nearly identical issues presented in

this case previously in United States v. Klubock, 832 F.2d 649,

653-54 (1st Cir. 1986) ("Klubock I"), vacated, 832 F.2d 664 (1st

Cir. 1987) (en banc by an equally divided court) ("Klubock II").

In Klubock I, we held that the United States District Court for

Massachusetts has the power to adopt an ethical rule ("PF 15")

similar to the Rhode Island rule at issue in this case. The

original panel opinion in Klubock I was withdrawn, however, when

we accepted a petition for rehearing en banc. Upon rehearing en

banc, the full court split three-to-three, therefore affirming,

by an equally divided court, the district court decision

upholding the ethical rule in question. United States v.

Klubock, 832 F.2d 664 (1st Cir. 1987), aff'g by equally divided

court, 639 F. Supp. 117 (D.Mass. 1986).6 Neither Klubock I nor

Klubock II are controlling precedent, although the reasoning of

both decisions remains of potential persuasive authority. See

Trans World Airlines v. Hardison, 432 U.S. 63, 73 n.8 (1977).

6 For a discussion of how PF 15 has fared in Massachusetts, see

generally David Hoffman et al., Attorney Subpoenas and

Massachusetts Rule PF 15, 95 Mass. L. Rev. (Summer 1989).

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See also Charles A. Wright, The Law of Federal Courts 758 (4th

ed. 1983).

In Klubock I, we recognized the ethical and legal

implications of prosecutors subpoenaing attorneys for the purpose

of compelling evidence concerning their clients. We noted that

the 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 withdraw as counsel because of ethical rules

prohibiting an attorney from testifying against his client.7 We

also noted the potential for abusive use of the attorney-

subpoena. Klubock I, 832 F.2d at 653-54. See also In re Grand

Jury Matters (Hodes and Gordon), 593 F. Supp. 103, 106 (D.N.H.)

(quashing subpoenas and characterizing actions of U.S. Attorney

in serving subpoenas on counsel as "without doubt harassing"),

aff'd, 751 F.2d 13 (1st Cir. 1984). Other courts have

acknowledged similar concerns. See, e.g., In re Special Grand

Jury No. 81-1, 676 F.2d 1005, 1009 (4th Cir. 1982) (issuance of

7 See, e.g., Model Code of Professional Responsibility DR 5-

101(B), DR 5-102 (1980); Model Rules of Professional Conduct Rule
3.7(a) (1987) (prohibiting lawyer from acting as both advocate
and witness whenever "the lawyer is likely to be a necessary
witness"). See also United States v. Diozzi, 807 F.2d 10, 12-13

(1st Cir. 1986) ("[A]ttorneys [can]not serve the dual roles of
defense counsel and sworn government witnesses in the same
trial.").

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subpoena may cause client to distrust attorney and terminate

relationship), rev'd on other grounds, 697 F.2d 112 (4th Cir.

1982) (en banc).8

The central question on appeal in this case is whether

the United States District Court for Rhode Island has the power

to adopt a local rule that requires a federal prosecutor, at

either the grand jury or trial stage, to obtain judicial approval

before serving a subpoena on counsel to compel evidence

concerning a client. We conclude that the federal district court

has the power to adopt such a rule.

I. The District Court's Rule-Making Authority
I. The District Court's Rule-Making Authority

The authority of the United States District Courts to

adopt or promulgate rules emanates from three sources. First,

Congress has vested the Supreme Court with the authority to

8 In United States v. Perry, 857 F.2d 1346, 1347 (9th Cir.

1988), the Ninth Circuit noted that the government's increasing
use of grand jury subpoenas on a target's counsel

has been almost universally criticized by
courts, commentators and the defense bar
because it is viewed as a tool of
prosecutorial abuse and as an unethical
tactical device US Attorneys employ to go
on a "fishing expedition" with legal
counsel without first pursuing
alternative avenues to get the
information. Many feel, and with some
justification, that whatever benefit the
government derives from this practice
comes at the direct expense of the
attorney-client relationship. Among the
perceived costs, for example, are the
potential loss of a client's choice of
counsel should the latter be compelled to
testify at the trial and the chilling
effect upon the client's trust in his
counsel's loyalty.

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prescribe rules of practice and procedure for the federal courts.

28 U.S.C. 2072(a). Pursuant to that authority, the Supreme

Court has adopted Federal Rule of Criminal Procedure 57 ("Rule

57"), which provides that each district court may from time to

time make or amend rules governing its practice, provided the

rules are consistent with the Federal Rules of Criminal

Procedure.9 See also Fed. R. Civ. P. 83 (civil analogue).

Second, Congress has vested federal district and circuit courts

with the independent authority to prescribe local rules of

practice consistent with Acts of Congress and the rules of

practice and procedure promulgated by the Supreme Court. 28

U.S.C. 2071(a).10 Finally, the Supreme Court has long

9 Rule 57 of the Federal Rules of Criminal Procedure provides in
pertinent part:

Each district court by action of a
majority of the judges thereof may from
time to time, after giving appropriate
public notice and an opportunity to
comment, make and amend rules governing
its practice not inconsistent with these
rules. . . . In all cases not provided
for by rule, the district judges and
magistrate judges may regulate their
practice in any manner not inconsistent
with these rules or those of the district
in which they act.

10 28 U.S.C. 2071(a) states:

The Supreme Court and all courts
established by Act of Congress may from
time to time prescribe rules for the

conduct of their business. Such rules

shall be consistent with Acts of Congress
and rules of practice and procedure
prescribed by the Supreme Court.

(emphasis added).

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recognized that district courts have certain inherent rule-making

powers arising from the nature of the judicial process. See

Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991); Link v. Wabash

Railroad Co., 370 U.S. 626 (1962); United States v. Hudson, 11

U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812) ("Certain implied

powers must necessarily result to our Courts of justice from the

nature of their institution.").

Consistent with these principles, the Supreme Court has

upheld the authority of district courts to promulgate local rules

unless 1) the rule conflicts with an Act of Congress; 2) the rule

conflicts with the Federal Rules of Criminal Procedure; 3) the

rule is constitutionally infirm; or 4) the subject matter

governed by the rule is not within the power of the district

court to regulate. See Frazier v. Heebe, 482 U.S. 641, 654

(1986) (Rehnquist, C.J., dissenting) (citing Colgrove v. Battin,

413 U.S. 149, 159-60, 162-64 (1973); Miner v. Atlass, 363 U.S.

641, 651-52 (1960); Story v. Livingston, 13 Pet. 359, 368

(1839)). In addition, the Supreme Court has struck down a local

rule which it deemed "unnecessary and irrational." Id. at 646

(majority opinion). It follows that Local Rules are

presumptively valid unless they contravene one of the five

principles mentioned above.

Plaintiffs argue that Local Rule 3.8(f) is invalid, as

applied to grand jury subpoenas, because it regulates a subject

matter which is beyond the rule-making authority of the district

court. In addition, plaintiffs contend that the Rule is invalid,

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both as applied to grand jury and trial subpoenas, because it

conflicts with Rules 17 and 57 of the Federal Rules of Criminal

Procedure. We begin by addressing Local Rule 3.8(f) as it

applies to grand jury subpoenas.

Other than our two opinions in Klubock, the Third

Circuit is the only federal appeals court to address whether a

federal district court has the power to adopt a local ethical

rule providing for pre-service, judicial screening of attorney-

subpoenas. In Baylson v. Disciplinary Board of the Supreme Court

of Pennsylvania, 975 F.2d 102 (3d Cir. 1992), cert. denied, 113

S. Ct. 1578 (1993), the Third Circuit struck down a local rule

similar to the one in this case on the grounds that it conflicted

with both Rules 17 and 57 of the Federal Rules of Criminal

Procedure. The court did not address the question, however, of

whether the local rule regulates a subject matter beyond the

district court's rule-making authority. It is upon this latter

ground that the district court in this case struck down Local

Rule 3.8(f) as applied to grand jury subpoenas. We address this

issue first.

II. Power of District Court to Regulate Grand Jury Subpoenas
II. Power of District Court to Regulate Grand Jury Subpoenas

A federal court has the "inherent power . . . to

control admission to its bar and to discipline attorneys who

appear before it." Chambers, 501 U.S. at 43 (citing Ex parte

Burr, 9 Wheat. 529, 531 (1824)). See also Culebras Enterprises

Corp. v. Rivera-R os, 846 F.2d 94, 97 (1st Cir. 1988) ("[i]t is

well settled in this circuit that the district court has the duty

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and responsibility to supervise the conduct of attorneys who

appear before it") (citations omitted); United States v. Claros,

17 F.3d 1041, 1046-47 (7th Cir. 1994); Eash v. Riggins Trucking

Inc., 757 F.2d 557, 569 (3d Cir. 1985). The Supreme Court has

implied that the power to regulate the conduct of attorneys

derives also from statutory authority. See Frazier, 482 U.S. at

645 (district court has "discretion to adopt local rules that are

necessary to carry out the conduct of its business [and this

authority] includes the regulation of admissions to its own bar")

(citing 28 U.S.C. 1654, 2071; Fed. R. Civ. P. 83). See also

Greer's Refuse Serv., Inc. v. Browning-Ferris Indus., 843 F.2d

443, 446 (11th Cir. 1988) ("federal courts have clear statutory

authority to promulgate rules governing the admission and conduct

of the attorneys who practice before them").

Whether considered statutory or inherent in derivation,

we have little difficulty concluding that the greater power of

disbarring attorneys for unethical behavior necessarily includes

the lesser power of erecting reasonable prophylactic rules to

regulate perceived abuses by attorneys appearing before the

court. Cf. Chambers, 501 U.S. at 45 (power to dismiss lawsuit

for conduct abusing judicial process includes the "less severe

sanction" of imposing attorney's fees). The question remains,

however, whether, considering the special role assigned the grand

jury in our justice system, Local Rule 3.8(f) regulates a subject

matter beyond the district court's rule-making authority.

A. The Special Role of the Grand Jury
A. The Special Role of the Grand Jury

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The grand jury occupies a unique place in our justice

system. It is not assigned by the Constitution to any of the

three branches of government, and therefore acts independently of

each. The Supreme Court has explained: "[T]he whole theory of

the [grand jury's] function is that it belongs to no branch of

the institutional government, serving as a kind of buffer or

referee between the Government and the people." United States v.

Williams, U.S. , 112 S. Ct. 1735, 1742 (1992). The grand

jury's "specialness" is manifested in five ways pertinent to this

case: 1) its independence from the court's supervision; 2) its

broad investigative powers; 3) the presumption of validity

accorded its subpoenas; 4) the secrecy of its proceedings; and 5)

its general freedom from procedural detours and delays. See id.

(citations omitted); United States v. R. Enterprises, 498 U.S.

292, 298-301 (1991) (citations omitted).

Plaintiffs maintain that Local Rule 3.8(f)

impermissibly interferes with these five special attributes of

the grand jury. They contend that Local Rule 3.8(f), therefore,

regulates a subject matter beyond the district court's rule-

making authority because it "directly contravenes the central

principles underlying the essential role and function of the

grand jury in the federal criminal justice system." The district

court agreed, holding that "the district court cannot enforce

Local Rule 3.8(f) because it assumes a power that the court does

not have -- the power to fundamentally alter the historic

relationship between the grand jury and its constituting court."

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Almond, 852 F. Supp. at 86 (citing Williams, 112 S. Ct. at 1744).

We disagree with the district court for three reasons.

First, Local Rule 3.8(f) is a prophylactic rule aimed at, and

principally affecting, prosecutors, not the grand jury. As such,

the Rule regulates the conduct of attorneys appearing before the

court -- a power well within the limits of a federal district

court's rule-making authority -- and not the grand jury per se.

Second, we think the district court's reliance on Williams is

misplaced. Finally, any incidental effect the Rule has on the

grand jury is minimal, and outweighed by the important interests

served by the rule.

B. Effect of Local Rule on Grand Jury Functions
B. Effect of Local Rule on Grand Jury Functions

Local Rule 3.8(f) does not impede the grand jury's

independence because it does not affect subpoenas sought by the

grand jury acting independently. The plain language of the Rule

demonstrates that it applies to "[t]he prosecutor in a criminal

case." As we pointed out in Klubock I, concerning a virtually

identical ethical rule:

PF 15 is not aimed at grand jury action.

It deals solely with prosecutorial
conduct in the prosecutor's capacity as a
member of the bar. If, in fact, a grand
jury acting independently of any
prosecutorial influence issues a subpoena
against an attorney/witness, the
attorney/witness must honor it, or move
to quash the subpoena in an appropriate
manner. Such independent action by a
grand jury has no relevance to PF 15
because none of the ethical concerns
previously mentioned are implicated.

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Klubock I, 832 F.2d at 658. The distinction is critical because,

although the potential damage to the attorney-client relationship

exists regardless of who seeks the subpoena, the attorney-to-

attorney ethical concerns that the Rule was designed to mitigate

are not implicated when the grand jury, acting independently,

seeks to subpoena counsel.11 The Rule, as written, acts only

as a prophylactic aimed at perceived deleterious action by one

litigating attorney against opposing counsel.

Nor does the Rule affect the grand jury's broad

investigative powers -- often described as the grand jury's

"right to every man's evidence." Branzburg v. Hayes, 408 U.S.

665, 688 (1972). First and foremost, the Rule makes no change in

substantive law. It merely authorizes district courts to reject

a prosecutor's attorney-subpoena application for the traditional

reasons justifying the quashing of a subpoena -- that is, the

subpoena request would be denied if the evidence sought is

protected by a constitutional, common-law, or statutory

privilege, or, the court determines that compliance with the

subpoena would be "unreasonable or oppressive." See id.

(citations omitted); In re Grand Jury Matters, 751 F.2d at 17-18

11 We have noted that, although they are issued under the
district court's name and for the grand jury, "[t]hese subpoenas
are 'in fact almost universally instrumentalities of the United
States Attorney's office or some other department of the
executive branch.'" In re Grand Jury Matters, 751 F.2d at 16

(quoting In re Grand Jury Proceedings (Schofield), 486 F.2d 85,

90 (3d Cir. 1973)). See also In re Grand Jury Subpoena: Subpoena

Duces Tecum, 829 F.2d 1291, 1296-97 (4th Cir. 1987).

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(Fed. R. Crim. P. 17(c)).12 Local Rule 3.8(f) does not keep

any evidence from reaching the grand jury which would not

potentially have been kept from it anyway. Therefore, it does

not disturb the grand jury's broad investigative powers.13

In effect, Local Rule 3.8(f) merely changes the timing

with respect to motions to quash in recognition of the fact that

service itself of an attorney-subpoena seeking to compel evidence

concerning a client may cause irreparable damage to the attorney-

client relationship. See Klubock I, 832 F.2d at 653 ("The

serving of a subpoena under such circumstances will immediately

drive a chilling wedge between the attorney/witness and his

client."). From the moment that the subpoena is served on

counsel, until the issue of its validity is resolved, the client

resides in a state of suspended animation, not knowing whether

his attorney will testify against him and perhaps be required to

withdraw his representation. The uncertainty is heightened by

12 To the extent that the Comment to Local Rule 3.8(f), see
Appendix A, suggests a broader basis for rejecting a subpoena
application, we point out that the Comment cannot substantively
change the text of the Rule. Indeed, the Rhode Island Rules of
Professional Conduct provide that the "Comments do not add
obligations to the Rules but provide guidance for practicing in
compliance with the Rules." The Rhode Island Supreme Court Rules
also provide that "the Comments are intended for interpretation,
but the text of each Rule is authoritative." Rhode Island
Supreme Court Rule 47. Moreover, federal district courts cannot
effect substantive changes in the law through local rulemaking.
We presume that district court judges will apply Local Rule
3.8(f) consistently with both its text and applicable law.
Plaintiffs' speculative arguments with respect to how particular
judges might apply the Comment to the Rule are, at this point,
irrelevant.

13 For similar reasons, Local Rule 3.8(f) does not affect the
presumed validity of grand jury subpoenas.

-20-

the fact that the common law of attorney-client privilege is

still evolving to address the concerns implicated by new federal

laws relating to client identity and fee arrangements. Compare

United States v. Gertner, 1995 WL 32020 (D.Mass.) (in case of

first impression in this circuit, holding that identification of

attorney's client, as required by 26 U.S.C. 6050I, is protected

from disclosure by attorney-client privilege) with United States

v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991)

(holding that the information is not protected by attorney-client

privilege). In addition, service of a subpoena opens a second

front which counsel must defend with her time and resources, thus

diverting both from the client. That the defense counsel's

adversary can bring about these consequences raises manifest

ethical concerns, properly addressed by a rule directed at

regulating the attorney-to-attorney relationship.

We also reject plaintiffs' argument that Local Rule

3.8(f) contravenes the historic "secrecy" of grand jury

investigations. Nothing in the text of the Rule prohibits the

filing of attorney-subpoena applications to the court under seal

or in camera. Nor does the Rule prohibit the court from holding

an ex parte, in camera hearing. District courts routinely use in

camera procedures to maintain grand jury secrecy in the context

of post-service motions to quash. See R. Enterprises, Inc., 498

U.S. at 302. Moreover, because the grounds upon which a district

court may reject an attorney-subpoena application mirror those

for quashing a subpoena, the prosecutor will be required to

-21-

divulge no more information with respect to the grand jury's

investigation than it would in responding to a motion to quash.14

Finally, there is nothing in the text of Local Rule

3.8(f) which would subject the grand jury to unusual procedural

delays or detours. As noted, the Rule only affects subpoenas

sought by prosecutors for use at the grand jury proceeding. It

is not applicable to subpoenas sought by a grand jury acting

independently. It therefore will not usually have any delaying

effect on the grand jury's investigation. Furthermore, any

procedural delay or detour which does result would be minimal --

presumably no greater than that caused by a traditional motion to

quash a subpoena issued at the grand jury stage. As explained

below, we think any minimal delay is outweighed by the benefits

of the Rule.

We made many of these points in Klubock I. In striking

down the ethical rule in this case, however, the district court

reasoned that the Supreme Court's recent decision in Williams,

112 S. Ct. 1735, negates any persuasive authority Klubock I has

with respect to grand jury subpoenas.

C. United States v. Williams
C. United States v. Williams

14 Plaintiffs argue that the secrecy of grand jury proceedings
will be compromised because the Comment to Rule 3.8(f) states
that judicial approval should be granted or denied after an
"adversarial hearing." As we have noted, the Comment to the Rule
is merely a non-binding guideline. Supra n.12. District court

judges will determine, based on their experience and professional
judgment, the best way to comply with the Rule and maintain grand
jury secrecy. In some cases an in camera adversarial hearing

might be appropriate and in others it might not. This, of
course, is the kind of decision district court judges routinely
make in the exercise of their discretion.

-22-

Williams held that a district court does not have the

power to dismiss an otherwise valid indictment because the

government failed to disclose substantial exculpatory evidence to

the grand jury. In doing so, the Court announced the following

principles, upon which the district court relied in striking down

Local Rule 3.8(f) as applied to grand jury subpoenas.

These authorities suggest that any
power federal courts may have to fashion,
on their own initiative, rules of grand
jury procedure is a very limited one, not
remotely comparable to the power they
maintain over their own proceedings. It

certainly would not permit judicial

reshaping of the grand jury institution,

substantially altering the traditional

relationships between the prosecutor, the

constituting court, and the grand jury

itself.

Williams, 112 S. Ct. at 1744 (citations omitted) (emphasis

added). Citing the history of the grand jury, both in England

and the United States, the Williams Court explained that the

grand jury sits in order to asses whether there is an adequate

basis for bringing a criminal charge, rather than to determine

guilt or innocence. Therefore, "requiring the prosecutor to

present exculpatory evidence as well as inculpatory evidence

would alter the grand jury's historical role, transforming it

from an accusatory to an adjudicatory body." Id. (emphasis

added).

It can hardly be said that Local Rule 3.8(f) would

"alter the grand jury's historic role" in such a fundamental

fashion. It certainly does not transform the grand jury from an

accusatory to an adjudicatory body. Indeed, it has no effect

-23-

whatsoever on the grand jury's accusatory role. Nor does it

alter the traditional relationships between prosecutor, court,

and grand jury. As we have noted, regulation of attorney conduct

is a traditional role for the court -- one for which it is

particularly well positioned and suited, and one which has never

been considered within the purview of the grand jury. Moreover,

the Rule has no effect on the evidence ultimately presented by

the government. It merely allows the court to determine, before

an attorney-subpoena is served, and the damage to the attorney-

client relationship caused, whether grounds exist which would

render the subpoena subject to an order to quash. Unlike the

situation in Williams, Local Rule 3.8(f) does not affect the

traditional equation upon which the grand jury deliberates to

assess whether there is an adequate basis for bringing criminal

charges.

We think Williams is clearly distinguishable on the

above grounds alone. We note in addition, however, that Williams

involved the use of a federal court's "supervisory power" to

dismiss an indictment, while this case involves a district

court's power merely to regulate the conduct of attorneys

appearing before it. The supervisory power derives from the need

for courts "to implement a remedy for violation of recognized

rights, to preserve judicial integrity by ensuring that a

conviction rests on appropriate considerations validly before the

jury, and . . . to deter illegal conduct." United States v.

Hastings, 461 U.S. 499, 505 (1982) (citations omitted). In

-24-

contrast, the power of a court to regulate the conduct of

attorneys appearing before it derives not from a need to remedy

or deter violations of defendants' rights, but from the

professional relationship between the court and attorneys

appearing before it. See Theard v. United States, 354 U.S. 278,

281 (1957) ("The court's control over a lawyer's professional

life derives from his relation to the responsibilities of a

court."); Goldfarb v. Virginia State Bar, 421 U.S. 773, 792

(1975) ("The interests of the States in regulating lawyers is

especially great since lawyers are essential to the primary

governmental function of administering justice, and have

historically been 'officers of the courts.'"). Thus, the source

and purpose of the two powers distinguishes them.

The nature and extent of the power exercised also

differ. When a federal court uses its supervisory power to

dismiss an indictment it directly encroaches upon the fundamental

role of the grand jury. That power is appropriately reserved,

therefore, for extremely limited circumstances. See Bank of Nova

Scotia v. U.S., 487 U.S. 250, 263 (1988) ("District Court had no

authority to dismiss the indictment on the basis of prosecutorial

misconduct absent a finding that petitioners were prejudiced by

such misconduct"). In contrast, the power of a court to regulate

the conduct of attorneys appearing before it is traditionally

invoked only to impose a sanction, monetary or otherwise, on the

offending party, or to recommend disciplinary proceedings. See,

e.g., United States v. Claros, 17 F.3d 1041, 1046-47 (7th Cir.

-25-

1994); Harlan v. Lewis, 982 F.2d 1255, 1259-60 (8th Cir. 1993);

Zambrano v. City of Tustin, 885 F.2d 1473, 1477-80 (9th Cir.

1989). It stands to reason that the more severe the sanction,

the more extensive the source of power needed to impose it, and

the more closely that power must be circumscribed. It follows

that the converse is also true. See Chambers, 501 U.S. at 45.

For these reasons, we conclude that Williams is not

dispositive of the distinct issues in this case. Nor do we think

-26-

that it vitiates the persuasive authority of our reasoning in

Klubock I.

D. The Benefits of Local Rule 3.8(f)
D. The Benefits of Local Rule 3.8(f)

In many ways, the attorney-client relationship is the

heart of our adversarial system of justice. This is particularly

true in criminal cases. See generally Monroe H. Freedman,

Understanding Lawyers' Ethics 16 ("the lawyer is the client's

'champion against a hostile world' -- the client's zealous

advocate against the government itself"). Clients rely

extensively on their attorneys' judgment, advice, and

professional competence. Moreover, as legal rules and

obligations become more complex, clients are forced to rely

increasingly on their attorneys, thus elevating the importance of

the attorney-client relationship.

The relationship between attorney and client is often

an ongoing one, built upon years of professional and social

interaction. On other occasions it arises out of a single

incident. Sometimes the client and attorney have never met

before. Although the dynamics of these relationships differ, the

fundamental responsibilities of attorney to client are the same.

Attorneys must diligently and competently represent their

clients' interests, keep their clients' confidences, and not

place themselves in situations where their interests conflict

with those of their clients.15 To fulfill their

15 See, e.g., Model Rules of Professional Conduct Rule 1.1 ("A

lawyer shall provide competent representation[, which] requires
the legal knowledge, skill, thoroughness and preparation

-27-

responsibilities, attorneys need information from their clients.

It is necessary to the very foundation of our adversarial system

of justice that clients feel secure in divulging to their

attorneys the facts in their possession, including those that

clients think might be incriminating. See generally 1 McCormack

on Evidence 87, at 316-17 (4th ed. 1992) (describing the

importance of attorney loyalty to the client); Stern & Hoffman,

supra, at 1826-27 (stressing the need for open communication

between attorney and client).

A body of substantive law and ethical rules has evolved

over the years with the purpose of creating an atmosphere in

which free and unfettered communication between attorney and

client is, to the greatest extent, encouraged. See supra n.15.

We are concerned with the systemic nature of the attorney-client

relationship because of the dynamic inherent in that relationship

-- the client generally knows the facts and the lawyer generally

knows the law. While the law cannot "legislate" a trusting and

open attorney-client relationship, it can encourage it, or, at

least, seek to mitigate those situations which might discourage

reasonably necessary for the representation."); Rule 1.3 ("A
lawyer shall act with reasonable diligence and promptness in
representing a client."); Rule 1.4(a) (duty to "keep a client
reasonably informed about the status of a matter"); Rule 1.6
(general rule of confidentiality); Rule 1.7 (general rule
regarding conflicts of interest); Rule 1.8(b) ("A lawyer shall
not use confidences to the client's disadvantage"); Rule 1.9(b)
(same for former client). Many of these ethical rules codify
similar requirements contained in contract and agency law. See

Stephen Gillers, What We Talked About When We Talked About

Ethics: A Critical View of the Model Rules, 46 Ohio St. L.J. 243,

247-48 (1985) (collecting cases).

-28-

it.

This was precisely the rationale underlying the Supreme

Court's decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947),

in which the Court held that attorney work product is privileged.

The Court emphasized the need for the attorney-client

relationship to be "free from unnecessary intrusion by opposing

parties and their counsel" and noted that introducing attorney

work product into evidence would lead to "[i]nefficiency,

unfairness and sharp practices . . . in the giving of legal

advice and in the preparation of cases for trial." The Court

concluded: "The effect on the legal profession would be

demoralizing. And the interests of the causes of justice would

be poorly served." Id.

Local Rule 3.8(f) effectively enables the district

court judge to resolve issues with respect to the attorney-

subpoena prior to service, in a manner similar to that in a

motion to quash hearing, therefore avoiding, in appropriate

cases, the detrimental effects to the attorney-client

relationship caused by service of a prosecutorial subpoena upon

the attorney. We think that Local Rule 3.8(f) serves similar

interests as those noted in Hickman,16 and that its

prophylactic nature is consistent with the Supreme Court's

recognition that the district court's supervision over the grand

16 In contrast to Hickman, of course, the Rule in this case does

not create new substantive law with respect to the attorney-
client privilege. Rather, it merely seeks to avoid unnecessary
harm to the attorney-client relationship.

-29-

jury's subpoena power may be "properly exercised . . . to prevent

the wrong before it occurs." United States v. Calandra, 414 U.S.

338 (1974) (emphasis added).

We also think the district court is in a much better

position than this court to evaluate the need for an ethical rule

regulating the practice of its officers, at both the grand jury

and trial stages.17 As Justice Frankfurter explained in

upholding the power of district courts to promulgate and enforce

rules concerning disbarment of attorneys:

[T]he state judicatures and the federal
judiciary, have autonomous control over
the conduct of their officers, among whom
. . . lawyers are included. The court's

control over a lawyer's professional life

derives from his relation to the

responsibilities of a court. . . .

'Membership in the bar is a privilege
burdened with conditions. The appellant
was received into that ancient fellowship
for something more than private gain. He
became an officer of the court, and, like
the court itself, an instrument or agency
to advance the ends of justice.'

Theard, 354 U.S. at 281 (emphasis added) (quoting People ex rel.

Karlin v. Cilkin, 162 N.E. 487, 489 (N.Y. 1928) (Cardozo, J.))

(other citations omitted). The judges of the federal district

court in Rhode Island are in a position to observe the subpoena

practices of attorneys appearing before them. Those judges with

more than a few years on the bench have witnessed the increased

17 We note that the parties are "before the court" once a
subpoena is issued under the court's seal. See Matter of Certain

Complaints under Investigation, 783 F.2d 1488, 1495 (11th Cir.

1986) (noting that when a subpoena bearing the court's seal is
issued by its clerk, it becomes "an instrument of the court's
process"), cert. denied, 477 U.S. 904 (1986).

-30-

use of the attorney subpoena as an investigative tool and have

been called upon to rule on motions to quash. Considering their

acknowledged authority to regulate the conduct of attorneys

appearing before them, and to preserve judicial integrity, we

think their determination that Local Rule 3.8(f) was necessary to

regulate the increased use of the attorney subpoena by federal

prosecutors deserves considerable weight.18

Based on the foregoing considerations, we conclude that

the minimal effect Local Rule 3.8(f) might have on the grand

18 Plaintiffs argue that the Rule is unnecessary because Justice
Department Guidelines place strict controls on federal
prosecutors seeking to subpoena counsel and, therefore,
adequately protect the attorney-client relationship. Supra. The

question in this case, however, is not whether there are other
ways to protect the attorney-client privilege; the question is
whether the district court has the power to adopt this Rule. We

also note that the judges of the federal district court in Rhode
Island presumably did not take such a sanguine view of the
Justice Department's ability to police its own. If so, they
would not be alone in this view. After discovering that no
disciplinary action had been taken by the Department of Justice
against ten prosecutors found by federal courts to have engaged
in misconduct, for example, a Congressional Committee recently
observed:

[R]epeated findings of no misconduct, and
the Department's failure to explain its
disagreements with findings of misconduct
by the Courts raises serious questions
regarding what the Department considers
"prosecutorial misconduct . . . within
the meaning of either the Model Code of

Professional Responsibility or the

Standards of Conduct in the Department of
Justice."

H.R. Rep. No. 986, 101st Cong., 2d Sess. 23 (1990). See also

U.S. v. Hastings, 461 U.S. 499, 522 (1983) (Brennan, J.,

concurring in part and dissenting in part) (describing the
"futility of relying on Department of Justice disciplinary
proceedings").

-31-

jury's traditional functions is outweighed by the important,

systemic concerns addressed by Local Rule 3.8(f). We therefore

conclude that Local Rule 3.8(f) regulates a subject matter within

the district courts' rule-making authority. We turn now to the

question of whether the Rule is inconsistent with the Federal

Rules of Criminal Procedure.

-32-

III. Federal Rules of Criminal Procedure
III. Federal Rules of Criminal Procedure

In Baylson, the Third Circuit struck down a virtually

identical local rule ("Local Rule 3:10") on the grounds that it

was inconsistent with both Rules 17 and 57 of the Federal Rules

of Criminal Procedure and, therefore, beyond the district court's

rule-making authority. The district court in this case rejected

the Baylson court's reasoning and conclusion with respect to

Rules 17 and 57. For much the same reasons, we do as well.

A. Rule 1719
A. Rule 17

The Baylson court offered the following reasons for its

conclusion that Local Rule 3:10 is inconsistent with Rule 17.

First, the court noted that neither Rule 17 nor any provision in

the federal rules or an Act of Congress "allows for judicial

intervention before a subpoena is served." Second, the court

stated that the local rule "impermissibly extends the ministerial

role granted the district courts in subpoena practice." Finally,

while conceding that "there may not be a literal conflict

between" the two rules, the court reasoned that the two were

inconsistent "because nothing in Rule 17 grants to the district

court what Rule 3.10 purports to by means of a local rule: the

power to screen grand jury subpoenas prior to service." Id. at

108 (emphasis added in each quotation).

We reject Baylson's reasoning with respect to Rule 17.

It simply does not follow analytically or jurisprudentially that

a local rule is "inconsistent" with a criminal rule of procedure

19 The full text of Rule 17 is reprinted at Appendix B.

-33-

merely because neither the federal rules nor an Act of Congress

explicitly grant district courts the power to promulgate the

specific local rule. As noted, district courts have the general

power to adopt local rules pursuant to Federal Rule of Criminal

Procedure 57, 28 U.S.C. 2071(a), and their inherent rule-making

authority. It might be argued that neither Rule 57, 2071(a),

nor the court's inherent rule-making power provide the necessary

authority for a district court to regulate this particular

subject matter, but this inquiry is entirely separate from

whether the ethical rule is inconsistent with Rule 17. By

premising its consistency analysis on whether a federal rule or

statute provides the specific authority to adopt the local rule,

Baylson turned the proper inquiry on its head -- evaluating the

Rule as if local rules are presumptively invalid. This

presumption is wholly unsupported. See, e.g., Colgrove v.

Battin, 413 U.S. 149 (1973); Link, 370 U.S. 626 (1962).20

20 The district court rejected the Baylson court's analysis with

respect to Rule 17 for similar reasons.

By focusing on whether Rule 17 "allows"
a district court to intervene in the
subpoena process prior to service, the
Third Circuit essentially held that local
rules cannot authorize pre-service
judicial review where Rule 17 does not
itself authorize this practice. In other
words, the court held that Rule 17's
silence with respect to pre-service
judicial review rendered local rules
authorizing this practice inconsistent
with the federal rule. I reject the
interpretive premise because it too
narrowly circumscribes the district
courts' rulemaking power.

-34-

The proper method for determining whether a local rule

is inconsistent with a federal rule of procedure is to inquire,

first, whether the two rules are textually inconsistent and,

second, whether the local rule subverts the overall purpose of

the federal rule. See Hawes v. Club Ecuestre Comandante, 535

F.2d 140, 144 (1st Cir. 1976).

We agree with the district court that the two rules are

not textually inconsistent. There is simply nothing in Rule 17

which prohibits pre-service involvement in the subpoena process

by the district court judge.21 Plaintiffs do not seriously

contest this point but argue, instead, that Local Rule 3.8(f)

contravenes the "underlying policy of Rule 17" to maintain the

historic limits on the court's involvement in the grand jury

subpoena process. Plaintiffs maintain that Rule 17 purposefully

confines the court's role in the subpoena process to

"administrative functions, sanctioning refusals to comply with

subpoenas, and quashing or modifying document subpoenas."

Therefore, the argument goes, Rule 17's failure to address pre-

Almond, 852 F. Supp. at 84.

21 As the district court noted, Local Rule 3.8(f) is concerned
only with the service of subpoenas on attorneys, not the issuance

of subpoenas. This is not merely a difference in semantics.
Local Rule 3.8(f) is a prophylactic rule designed to address
certain perceived ethical concerns implicated by the increasing
practice of federal prosecutors subpoenaing opposing counsel to
compel testimony regarding a target client. These ethical
concerns simply are not implicated by the issuance of a subpoena
because, until the attorney is served with the subpoena, the
client has no reason to distrust or feel uncertain about his
attorney's allegiance. See Klubock I, 832 F.2d 649 (noting the

same with respect to PF 15).

-35-

service judicial intervention in the subpoena process indicates

an intention that there should be none.

The Supreme Court has indicated that silence in the

federal rules should not be interpreted as a prohibition on local

rule-making authority. In Colgrove, for example, the Court held

that a local rule authorizing six-person juries for civil cases

did not conflict with former Federal Rule of Civil Procedure 48,

which provided that "[t]the parties may stipulate that the jury

shall consist of any number less than twelve." The Court

concluded that the two rules were not inconsistent because Rule

48 "'deals only with a stipulation by "[t]he parties." It does

not purport to prevent court rules which provide for civil juries

of reduced size.'" Colgrove, 413 U.S. at 164 (quoting Cooley v.

Strickland Transportation Co., 459 F.2d 779, 784 (5th Cir.

1972)). See also United States v. Spock, 416 F.2d 165, 180 (1st

Cir. 1969).22 The mere fact that Rule 17 sets forth certain

ways in which the district court is involved in the subpoena

process does not, by negative implication, therefore establish

that the purpose of the rule is to circumscribe judicial

intervention in the subpoena process to only those functions

22 Similarly, in Link, the Court held that the former version of

Federal Rule of Criminal Procedure 41(b) -- which provided that
"a defendant may move for dismissal of an action" for failure to
prosecute -- did not, by negative implication, prohibit the court
from dismissing an action sua sponte for failure to prosecute.

The Court reasoned that "[n]either the permissive language of the

Rule -- which merely authorizes a motion by the defendant -- nor
its policy" indicate that the Rule was intended to "abrogate" the
inherent power of federal courts to dismiss sua sponte for

failure to prosecute. Link, 370 U.S. at 630-32 (emphasis added).

-36-

specified in the Rule.23

Moreover, the Supreme Court has long recognized that

rules regulating the conduct of attorneys practicing before them

are within the local rule-making authority of the district

courts. See, e.g., Theard, 354 U.S. at 281-83 (inherent power of

district courts to promulgate and enforce rules concerning

disbarment of attorneys). Local Rule 3.8(f) is a prophylactic

ethical rule regulating the conduct of attorneys appearing before

the court. Therefore, as in Link, a strong indication of intent

to abrogate is required.

There is nothing in the text of Rule 17 to suggest it

was intended to abrogate the power of a federal court to regulate

the conduct of attorneys appearing before it. Nor have

plaintiffs identified any historical evidence with respect to

Rule 17 indicating that it was intended to abrogate this power.

The Supreme Court's decision in Miner v. Atlass, 363 U.S. 641

(1960), is instructive in this regard. Miner held that a local

rule authorizing discovery-deposition practice in admiralty cases

was beyond the rule-making authority of the admiralty court. The

Court has since explained that the decision in Miner was based on

the fact that the Supreme Court itself had previously omitted the

precise discovery procedure from among the Civil Rules adopted as

part of the Admiralty Rules. See Colgrove, 413 U.S. at 163-64

23 As the district court noted, although there is no procedure
in Rule 17 for quashing a testimonial subpoena, courts have, on
their own authority, extended the Rule's procedures regarding the
quashing of document subpoenas to cover testimonial subpoenas.

-37-

n.23. The Court explained: "Miner held that this omission 'must

be taken as an advertent declination of the opportunity to

institute the discovery-deposition procedure of Civil Rule 26(a)

throughout courts of admiralty.'" Id. (quoting Miner, 363 U.S.

at 647). The court therefore held that the local rule was not

consistent with the General Admiralty Rules. Miner, 363 U.S. at

647. See also Link, 370 U.S. at 631-32 (stating that "[i]t would

require a much clearer expression of purpose than Rule 41(b)

provides for us to assume it was intended to abrogate" the

inherent power of a court to dismiss sua sponte for failure to

prosecute).

Although there is a history of grand jury independence

from its constituting court, see supra, plaintiffs have directed

us to no historical evidence -- on a par with that, for example,

in Miner -- relating to the promulgation of Rule 17 to suggest

that it was intended to codify this policy. The lack of

historical evidence is particularly significant because Rule 17

was adopted in 1944, well prior to the line of Supreme Court

cases setting the parameters of grand jury independence. See

generally United States v. Williams, 112 S. Ct. 1735 (1992);

United States v. Dionisio, 410 U.S. 1 (1973); United States v.

Calandra, 414 U.S. 338 (1974); Branzburg v. Hayes, 408 U.S. 665

(1972). Furthermore, in most instances, there is simply no

reason for judicial involvement in the subpoena process prior to

service. Thus, the Rule's silence with respect to the issue does

not necessarily imply anything other than silence. We therefore

-38-

conclude that Local Rule 3.8(f) is not inconsistent with the text

or purpose of Rule 17.24

B. Rule 57
B. Rule 57

Baylson also held, relying on the Comment to Rule 57,

that the local rule is invalid because it "goes beyond the

'matters of detail' contemplated by [Rule] 57." Baylson, 975

F.2d at 108. We reject the Baylson court's reliance on the

Comment to the Rule, rather than the text.25 It is true that

in ascertaining the meaning of the federal rules of procedure,

"the construction given to them by the [Advisory] Committee is of

weight." Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444-

45 (1946). But the Comment cannot change the unambiguous

language of a duly adopted federal rule. Thus, we agree with the

district court that "the commentary to Rule 57 cannot limit the

district courts' rulemaking power in ways not prescribed by the

Rule's text." Moreover, Baylson's conclusion that district

24 We also reject plaintiffs' argument that Local Rule 3.8(f) is
inconsistent with grand jury secrecy requirements contained in
Federal Rule of Criminal Procedure 6(e). We agree with the
district court that "the same secrecy issues arise in the context
of post-service motions to quash, and district courts have
routinely used in camera procedures to ensure that Rule 6(e) is

not violated." Almond, 852 F. Supp. at 83-84 n.6 (citing United

States v. R. Enterprises, Inc., 498 U.S. 292, 302 (1991)). See

supra at p. 20 (discussing the secrecy issue).

25 The Advisory Committee's comment to Rule 57 provides that
the purpose of the rule is to leave the individual courts free to
regulate some "matters of detail", either by local rule or usage.
The comment goes on to state that among such matters are "the
mode of impanelling a jury, the manner and order of interposing
challenges to jurors, the manner of selecting the foreman of a
trial jury, the matter of sealed verdicts, the order of counsel's
arguments to the jury, and other similar details."

-39-

courts' rule-making authority is limited to "matters of detail"

is in direct conflict with the Supreme Court's decisions in

Colgrove, 413 U.S. at 164 (upholding local rule providing for

six-person juries) and Theard 54 U.S. at 281-83 (upholding rule

concerning disbarment of attorneys), neither of which involved

"matters of detail." Along this line, we have canvassed the

Supreme Court's decisions with respect to district courts' local

rule-making authority and found no cases that rely on the Comment

to Rule 57. Finally, we point out that Rule 57, which was

adopted in 1944, was rewritten in 1985 and now provides for

"appropriate public notice and an opportunity to comment," and

for review of local rules by the judicial council of the circuit.

We think these additions indicate that, at least by 1985, it was

clear that district courts' rule-making authority was not limited

to mere "matters of detail."

For the foregoing reasons, we conclude that Local Rule

3.8(f), as applied to grand jury subpoenas, is a legitimate

exercise of the rule-making authority of the United States

District Court for Rhode Island. Accordingly, the district

court's decision to the contrary is reversed.

IV. Trial Subpoenas
IV. Trial Subpoenas

The district court held that the United States District

Court for Rhode Island has the power to adopt and enforce Local

Rule 3.8(f), as applied to trial subpoenas. We agree. The

analysis supporting our conclusion that Local Rule 3.8(f) is a

valid exercise of the district court's rule-making authority, as

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applied to grand jury subpoenas, applies with even more force

with respect to trial subpoenas. The Supreme Court has

recognized that the power of federal district courts to adopt

rules regarding trials is broader than with respect to its power

over the grand jury. Williams, 112 S. Ct. at 1744. Moreover,

because we conclude that Local Rule 3.8(f), as applied to grand

jury subpoenas, is not inconsistent with either Rule 17 or Rule

57 of the Federal Rules of Criminal Procedure 17, it follows that

it is not inconsistent with these Rules as applied to trial

subpoenas.26 Plaintiffs have presented us with no persuasive

authority to the contrary. The district court's decision

granting summary judgment for the federal defendants is,

therefore, affirmed.

V. Issues Involving the State Version of Rule 3.8(f)
V. Issues Involving the State Version of Rule 3.8(f)

Our decision that Local Rule 3.8(f) is a valid exercise

of the federal district court's rule-making authority moots the

issues raised by the state defendants with respect to the state

version of Rule 3.8(f). We will briefly explain why.

The district court held that, because the federal

version of Rule 3.8(f) is invalid as applied to grand jury

subpoenas, enforcing the state version of Rule 3.8(f) against

federal prosecutors practicing in federal court would violate the

26 As the district court noted, because "Rule 17 does not
differentiate between grand jury and trial subpoenas, but instead
sets out the basic mechanics governing all types of subpoenas,"
the analysis with respect to Rule 17 "applies with equal force to
both applications of Local Rule 3.8(f)." Almond, 852 F. Supp. at

91.

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Supremacy Clause of the United States Constitution. The district

court's Supremacy Clause analysis was premised on its holding

that the federal version of the Rule is invalid. Because we

conclude here that Local Rule 3.8(f) is a valid exercise of the

federal district court's rule-making authority, it is the federal

version of the Rule that will be enforced against federal

prosecutors practicing in Rhode Island federal court. The

Supremacy Clause is relevant only to state interference with

federal laws. See Hillsborough County v. Automated Medical

Laboratories, Inc., 471 U.S. 707 (1985). There is, therefore, no

conflict with the Supremacy Clause, and the decision of the

district court to the contrary is necessarily reversed.

Similarly, the state defendants' contention that the

district court lacked subject matter jurisdiction to review the

validity of the state version of Rule 3.8(f) by virtue of the

"Rooker-Feldman" doctrine is mooted by our decision upholding the

federal version of Rule 3.8(f). See Rooker v. Fidelity Trust

Company, 263 U.S. 444; District of Columbia Court of Appeals v.

Feldman, 460 U.S. 488 (1983). That is, we have no occasion to

address the state version of the Rule.

CONCLUSION
CONCLUSION

For the reasons stated herein, we conclude that the

United States District Court for Rhode Island has the rule-making

authority to adopt and enforce Local Rule 3.8(f), as applied to

both grand jury and trial subpoenas. The decision of the

district court is affirmed in part and reversed in part.

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Appendix A

Rule 3.8. Special Responsibilities of a Prosecutor. The
Rule 3.8. Special Responsibilities of a Prosecutor.
prosecutor in a criminal case shall:

* * *

(f) not, without prior judicial approval,
subpoena a lawyer for the purpose of
compelling the lawyer to provide evidence
concerning a person who is or was represented
by the lawyer when such evidence was obtained
as a result of the attorney-client
relationship.

COMMENT

* * *

The prohibition in paragraph (f) was added
because of the increasing incidence of grand
jury and trial subpoenas directed toward
attorneys. It is the belief of the committee
that the requirements of prior judicial
approval, which should be granted or denied
after the opportunity for an adversarial
proceeding, will serve as an appropriate
safeguard to this practice and its threat to
the confidentiality and integrity of the
attorney-client relationship. The committee
believes that a court called upon for
judicial approval should be guided by
appropriate standards. See e.g., United

States v. Klubock, 832 F.2d 664 (1st Cir.

1987) (en banc). Accordingly, prior judicial
approval should be withheld unless (1) the
information sought is not protected from
disclosure by an applicable privilege, (2)
the evidence sought is essential to the
successful completion of an ongoing
investigation or prosecution and is not
merely peripheral, cumulative, or
speculative, (3) the subpoena lists the
information sought with particularity, is
directed at information regarding a limited
subject matter in a reasonably limited period
of time, and gives reasonable and timely
notice, (4) the purpose of the subpoena is
not to harass the attorney or his or her
client, and (5) the prosecutor has
unsuccessfully made all reasonable attempts
to obtain the information sought from non-

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attorney sources and there is no other
feasible alternative to obtain the
information.

See Report to the House Delegates, ABA Criminal Justice Section,

February 1988.

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Appendix B

Rule 17. Subpoena
Rule 17. Subpoena

(a) For Attendance of Witnesses; Form; Issuance. A subpoena
(a) For Attendance of Witnesses; Form; Issuance.
shall be issued by the clerk under the seal of the court. It
shall state the name of the court and the title, if any, of the
proceeding, and shall command each person to whom it is directed
to attend and give testimony at the time and place specified
therein. The clerk shall issue a subpoena, signed and sealed but
otherwise in blank to a party requesting it, who shall fill in
the blanks before it is served. A subpoena shall be issued by a
United States magistrate judge in a proceeding before that
magistrate judge, but it need not be under the seal of the court.

(b) Defendants Unable to Pay. The court shall order at any
(b) Defendants Unable to Pay.
time that a subpoena be issued for service on a named witness
upon an ex parte application of a defendant upon a satisfactory

showing that the defendant is financially unable to pay the fees
of the witness and that the presence of the witness is necessary
to an adequate defense. If the court orders the subpoena to be
issued the costs incurred by the process and the fees of the
witness so subpoenaed shall be paid in the same manner in which
similar costs and fees are paid in case of a witness subpoenaed
in behalf of the government.

(c) For Production of Documentary Evidence and of Objects. A
(c) For Production of Documentary Evidence and of Objects.
subpoena may also command the person to whom it is directed to
produce the books, papers, documents or other objects designated
therein. The court on motion made promptly may quash or modify
the subpoena if compliance would be unreasonable or
oppressive. The court may direct that books, papers, documents
or objects designated in the subpoena be produced before the
court at a time prior to the trial or prior to the time when they
are to be offered in evidence and may upon their production
permit the books, papers, documents or objects or portions
thereof to be inspected by the parties and their attorneys.

(d) Service. A subpoena may be served by the marshal, by a
(d) Service.
deputy marshal or by any other person who is not a party and who
is not less than 18 years of age. Service of a subpoena shall be
made by delivering a copy thereof to the person named and by
tendering to that person the fee for 1 day's attendance and the
mileage allowed by law. Fees and mileage need not be tendered to
the witness upon service of a subpoena issued in behalf of the
United States or an officer or agency thereof.

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(e) Place of Service.
(e) Place of Service.

(1) In United States. A subpoena requiring the attendance of
(1) In United States.
a witness at a hearing or trial may be served at any place within
the United States.

(2) Abroad. A subpoena directed to a witness in a foreign
(2) Abroad.
country shall issue under the circumstances and in the manner and
be served as provided in Title 28, USC 1783.

(f) For Taking Deposition; Place of Examination.
(f) For Taking Deposition; Place of Examination.

(1) Issuance. An order to take a deposition authorizes the
(1) Issuance.
issuance by the clerk of the court for the district in which the
deposition is to be taken of subpoenas for the persons named or
described therein.

(2) Place. The witness whose deposition is to be taken may
(2) Place.
be required by subpoena to attend at any place designated by the
trial court, taking into account the convenience of the witness
and the parties.

(g) Contempt. Failure by any person without adequate excuse to
(g) Contempt.
obey a subpoena served upon that person may be deemed a contempt
of the court from which the subpoena issued or of the court for
the district in which it issued if it was issued by a United
States magistrate judge.

(h) Information Not Subject to Subpoena. Statements made by
(h) Information Not Subject to Subpoena.
witnesses or prospective witnesses may not be subpoenaed from the
government or the defendant under this rule, but shall be subject
to production only in accordance with the provisions of Rule
26.2.

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