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SJC-11697
IN THE MATTER OF A GRAND JURY INVESTIGATION.
Suffolk. September 4, 2014. - January 12, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Grand Jury. Subpoena. Cellular Telephone. Constitutional Law,
Grand jury, Subpoena, Self-incrimination. Practice,
Criminal, Grand jury proceedings, Subpoena duces tecum,
Warrant. Evidence, Grand jury proceedings. Attorney at
Law, Attorney-client relationship. Search and Seizure,
Warrant, Probable cause. Probable Cause.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 7, 2014.
The case was reserved and reported by Botsford, J.
Aaron M. Katz (Patrick Welsh with him) for the petitioner.
James L. Sultan (Charles W. Rankin with him) for the amicus
curiae.
Teresa K. Anderson, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with her) for the
Commonwealth.
LENK, J. This appeal arises from a petition brought under
G. L. c. 211, § 3, challenging a Superior Court judge's order
approving the issuance of a grand jury subpoena duces tecum that
2
compels a law firm to produce a cellular telephone. The single
justice reserved and reported the matter to this court, and our
analysis is confined to the limited record before us.
The Commonwealth contends that the telephone belonged to
John Doe,1 the target of a grand jury investigation; that it was
transferred from Doe to the law firm to obtain legal advice; and
that it contains in the information stored on its memory,
particularly in its record of text messages, evidence of a crime
under investigation by the grand jury. The Superior Court judge
determined that, while a subpoena served on Doe would violate
his right against self-incrimination, and a subpoena served on
the law firm would violate the attorney-client privilege, a
subpoena compelling the law firm to produce the telephone could
be served upon an ex parte showing by the Commonwealth of
probable cause sufficient for the issuance of a search warrant.
We conclude that, on the record before us, the attorney-client
privilege protects Doe against compelled production of the
telephone by the law firm, and that the protection afforded by
the attorney-client privilege may not be set aside based on a
showing of probable cause. We therefore reverse the Superior
Court judge's order.
1
A pseudonym.
3
1. Background. The law firm began representing Doe in
April, 2013. According to the Commonwealth, in June, 2013, Doe
transferred the telephone to the law firm in connection with its
provision of legal services to him.2 In March, 2014, the
Commonwealth moved under Mass. R. Prof. C. 3.8 (f), 426 Mass.
1397 (1998), for judicial approval of a grand jury subpoena
compelling the law firm to produce the telephone.3 A Superior
2
The Commonwealth asserts that the judge made a specific
factual finding that the cellular telephone exists and is in the
possession of the law firm. We discern no such finding in the
judge's decision. In the "Facts" portion of his decision, the
judge indicated specifically that "[t]he Commonwealth asserts
that on or about June 16, 2013, [Doe] delivered his cell phone
to [his] attorneys in connection with their provision of legal
services to him." The factual findings that the Commonwealth
identifies involve either the judge's summary of uncontested
issues concerning the supposed telephone (e.g., that, if it was
transferred at all, it was transferred to obtain legal advice),
or his reprise of the representations of the parties.
The Commonwealth further contends that, in opposing the
Commonwealth's subpoena for the telephone, the firm has
implicitly conceded that it has possession of the device. In
other words, the Commonwealth would place the law firm in a
"Catch-22": to assert that the attorney-client privilege
protects against compelled production of the telephone, the firm
must implicitly disclose the client's privileged communication
that the telephone belongs to him, or at least that it was
previously in his possession. We reject this suggestion.
3
Rule 3.8 (f) of the Massachusetts Rules of Professional
Conduct, 426 Mass. 1397 (1998), provides that a prosecutor
shall:
"not subpoena a lawyer in a grand jury or other
criminal proceeding to present evidence about a past or
present client unless:
4
Court judge held a hearing on the motion and issued a ruling
from the bench, followed by a written decision a few days
thereafter. The judge denied the motion, but noted that his
denial was without prejudice to refiling. The judge indicated
that, if he determined upon such refiling that the Commonwealth
had, through an ex parte proceeding, established probable cause
sufficient to justify a search under the Fourth Amendment to the
United States Constitution, he would allow the Commonwealth to
issue a subpoena compelling the law firm to produce the
telephone. At a subsequent hearing, the judge allowed the
Commonwealth's second motion for judicial approval of the grand
jury subpoena directed at the law firm, but stayed issuance and
"(1) the prosecutor reasonably believes:
"(i) the information sought is not protected from
disclosure by any applicable privilege;
"(ii) the evidence sought is essential to the
successful completion of an ongoing investigation or
prosecution; and
"(iii) there is no other feasible alternative to
obtain the information; and
"(2) the prosecutor obtains prior judicial approval
after an opportunity for adversarial proceeding . . . ."
Doe contends that the process by which the judge determined
that the requirements of Mass. R. Prof. C. 3.8 (f) were met, and
that the Commonwealth had established probable cause that the
telephone contained evidence of a crime and was in the
possession of the law firm, violated Mass. R. Prof. C. 3.8 (f)
and standards of constitutional due process. Because we
conclude that the attorney-client privilege precluded the
issuance of a subpoena given the facts of this case, we need not
reach this argument.
5
execution of the subpoena to allow Doe to file a petition for
relief in the county court pursuant to G. L. c. 211, § 3. The
judge also ordered that, if the law firm indeed had the device
in its possession, it not alter, transfer, dispose of, return,
or otherwise render the telephone unavailable pending further
court order.
After Doe filed his G. L. c. 211, § 3, petition, the law
firm filed a motion to intervene. In response to a request by
the single justice, the law firm submitted an affidavit
indicating that, if the petition were dismissed, and if the
Commonwealth served the subpoena on the law firm, it would
refuse to comply, subjecting itself to a finding of contempt.
Based on this affidavit, the single justice reserved and
reported the matter to this court.4
2. Discussion. a. Standard of review. While we review a
trial judge's decisions on discovery matters for an abuse of
discretion, our review of mixed questions of fact and law,
including questions of the validity of an assertion of the
privilege against self-incrimination, is de novo. McCarthy v.
4
Notwithstanding the Commonwealth's contention that
extraordinary relief would not be available under G. L. c. 211,
§ 3, until the law firm disobeys the subpoena, subjecting itself
to a contempt order, "[w]here," as here, "the single justice
has, in [her] discretion, reserved and reported the case to the
full court, we grant full appellate review of the issues
reported." Martin v. Commonwealth, 451 Mass. 113, 119 (2008).
6
Slade Assocs., Inc., 463 Mass 181, 190 (2012) (citation
omitted). Our review of a decision involving the attorney-
client privilege is likewise de novo. Clair v. Clair, 464 Mass.
205, 214 (2013), quoting Commissioner of Revenue v. Comcast
Corp., 453 Mass. 293, 302 (2009).
b. The right against self-incrimination, the act of
production doctrine, and the attorney-client privilege. We
conclude that the subpoena was issued improperly. This
conclusion derives from the application of three well-
established principles: the privilege against self-
incrimination, the act of production doctrine, and the attorney-
client privilege.
The Fifth Amendment to the United States Constitution
provides, in relevant part, that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself."
Article 12 of the Massachusetts Declaration of Rights similarly
provides that "[n]o subject shall . . . be compelled to accuse,
or furnish evidence against himself."
The United States Supreme Court has "made it clear that the
act of producing documents in response to a subpoena may have a
compelled testimonial aspect," because production may constitute
an admission "that the papers existed, were in [the witness's]
possession or control, and were authentic." United States v.
Hubbell, 530 U.S. 27, 36 (2000). With respect to art. 12, we
7
similarly have held "that the act of production, quite apart
from the content of that which is produced, may itself be
communicative." Commonwealth v. Doe, 405 Mass. 676, 679 (1989).
By turning over evidence in response to a subpoena, a defendant
may be "making implicitly a statement about its existence,
location and control," and "[t]he implied statement would also
function as an authentication." Commonwealth v. Hughes, 380
Mass. 583, 592, cert. denied, 449 U.S. 900 (1980). See
Commonwealth v. Doe, supra (by turning over materials in
response to subpoena, witness "would be testifying, in effect,
as to the existence and location of those materials, as well as
to the control that he had over them," and implicitly would be
"authenticating those materials").
Indeed, the protection against the implicit self-
incrimination involved in compelled production stands on even
firmer ground under art. 12 than it does under the Fifth
Amendment. Unlike the Fifth Amendment, art. 12 specifically
prohibits compelling a defendant to "furnish evidence against
himself." We have long recognized, based on the "difference in
the phraseology between the Massachusetts Constitution and the
Fifth Amendment," Opinion of the Justices, 412 Mass. 1201, 1210
(1992), that "the protections of art. 12 extend beyond the
safeguards afforded by the United States Constitution." See
Doe, 405 Mass. at 678. The requirement that a subject not be
8
forced to "furnish evidence against himself," we have observed,
"may be presumed to be intended to add something to the
significance of" the preceding protection against compelled
self-accusation. Opinion of the Justices, supra. Accordingly,
we have more broadly construed the protections afforded by the
act of production doctrine under art. 12, in comparison with the
Fifth Amendment. See id. at 1210-1211; Commonwealth v. Burgess,
426 Mass. 206, 218 (1997).
In Fisher v. United States, 425 U.S. 391, 402 (1976)
(Fisher), the United States Supreme Court held "that compelled
production of documents from an attorney does not implicate
whatever Fifth Amendment privilege the [target of an
investigation] might have enjoyed from being compelled to
produce them himself." The Court went on to conclude, however,
that, apart from the right against self-incrimination, the
attorney-client privilege protects certain materials from
production by an attorney. If a client "transferred possession
of . . . documents . . . from himself to his attorney in order
to obtain legal assistance, . . . the papers, if unobtainable by
summons from the client, are unobtainable by summons directed to
the attorney by reason of the attorney-client privilege." Id.
at 405.
"Under the facts and circumstances presented" in this case,
the motion judge was "satisfied that had a subpoena been served
9
on [Doe] personally, he would be able to assert a privilege
against production of his [tele]phone based on the Fifth
Amendment and/or art. 12." In its brief, the Commonwealth
acknowledges that Doe could not be compelled to produce the
telephone had he retained possession of it. Nonetheless, the
Commonwealth offers several arguments that would avoid the
inevitable implications of that concession under the United
States Supreme Court's decision in Fisher. In essence, these
arguments seek to sever the chain that links the determination
that Doe could not be compelled to produce the telephone, had he
retained possession of it, with the conclusion that the law firm
likewise cannot be compelled to produce the telephone, after
purportedly receiving the telephone from Doe for the purpose of
rendering legal advice.
The Commonwealth contends, for instance, that although
Doe's act of producing the telephone in response to the subpoena
would be testimonial and incriminating under the Fifth Amendment
and art. 12, the law firm's act of producing the telephone in
response to a subpoena would be "trivial and non-testimonial."
That argument rests on a mistaken understanding of the Fisher
rule. The Fisher Court made clear that its analysis hinged not
on the law firm's act of producing the telephone, but rather on
the client's hypothetical act of producing evidence in response
to a subpoena; where materials were transferred to the attorney
10
"for the purpose of obtaining legal advice," and where "the
client himself would be privileged [f]rom production" of the
materials had he retained them, "the attorney having possession
of the document is not bound to produce." Fisher, 425 U.S. at
404, quoting 8 J. Wigmore, Evidence § 2307, at 592 (McNaughton
rev. 1961).
The focus on whether Doe would be protected against
compelled production had he maintained possession of the
materials reflects the policy underlying the Fisher rule.
"Fisher's rule arose from the policy of promoting open
communications between lawyers and their clients." Application
of Sarrio, S.A., 119 F.3d 143, 146 (2d Cir. 1997). "Exposing
documents -- not otherwise subject to production -- to discovery
demands after delivery to one's attorney . . . would produce a
curious and unacceptable result." Ratliff v. Davis Polk &
Wardwell, 354 F.3d 165, 169 (2d Cir. 2003). It would mean that
"[t]he price of an attorney's advice would be disclosure of
previously protected matters," thereby "chill[ing] open and
frank communications between attorneys and their clients." Id.
As the United States Court of Appeals for the Ninth Circuit has
explained, "The attorney-client privilege and the interests it
protects would be ill-served by holding that [the client] walked
into his attorney's office unquestionably shielded with the
[F]ifth [A]mendment's protection, and walked out with something
11
less." In re Grand Jury Proceedings on Feb. 4, 1982, 759 F.2d
1418, 1420 (9th Cir. 1985). Accordingly, under the Fisher
analysis, the law firm stands in its client's shoes; if a client
could not be compelled to produce materials because of the right
against self-incrimination, and if the client transfers the
materials to the attorney for the provision of legal advice, an
attorney likewise cannot be compelled to produce them.
The policy underlying the Fisher rule reveals the
inadequacy of the Commonwealth's suggestion that "the firm could
appoint an alternate third party designee to logistically
present the [tele]phone to the grand jury." The Fisher rule
serves to protect open communication between attorneys and
clients by ensuring that a client does not sacrifice the
protection that evidence otherwise would receive against
compelled production by transferring it to an attorney. The
damage to the attorney-client relationship would result whenever
previously unobtainable materials become obtainable as a result
of being transferred to the attorney, regardless of whether the
materials were handed over by a third-party designee or by the
law firm itself.
The Commonwealth cites In re Grand Jury Subpoena (Mr. S.),
662 F.3d 65 (1st Cir. 2011), cert. denied, 133 S. Ct. 43 (2012),
in support of its attempt to distinguish between the testimonial
character of the law firm's act of production and the client's
12
act of production. But that case is inapposite. Unlike Fisher
and unlike the instant case, the client in In re Grand Jury
Subpoena (Mr. S.) had not transferred any materials to his
attorney. Instead, the client had approached the attorney to
complete a real estate transaction, prompting the attorney to
prepare a set of standard transaction documents. Id. at 73.
Because the client there never had possession of the documents
sought, the Fisher rule, which protects documents that could not
be obtained by a subpoena directed at the client from compelled
production once transferred to an attorney, played no role in
the case.
Finally, the Commonwealth seeks to distinguish between the
telephone as "physical evidence" and the concededly documentary
materials that the telephone contains. The Commonwealth insists
that it "only sought a grand jury subpoena for production of the
physical item of evidence," and asserts that, once it acquires
the telephone, "it will seek a search warrant to authorize a
forensic examination of the device." But if we were to embrace
this distinction, the result would empty the Fisher rule and the
act of production doctrine of any effect: the Commonwealth
could compel the production of any document based on the
assertion that the subpoena was directed merely at the document
as a "physical item" -- an amalgam of paper, binding, and ink --
13
and that it would get a separate search warrant before actually
opening the document and reading the pages.
The extrajurisdictional case law that the Commonwealth
cites in support of its distinction between the telephone as a
"physical item" and the telephone's contents almost exclusively
involves items -- typically either the instrumentalities or
proceeds of crime -- whose evidentiary value to the prosecution
had nothing to do with their communicative contents. See In re
Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (stolen money and
sawed-off shotgun); Hitch v. Pima County Superior Court, 146
Ariz. 588, 590 (1985) (wrist watch allegedly stolen from
victim); People v. Lee, 3 Cal. App. 3d 514, 521, 524-525 (1970)
(bloody shoes); Anderson v. State, 297 So. 2d 871, 871 (Fla.
Dist. Ct. App. 1974) (stolen dictaphone and calculator that
defendant was alleged to have received before turning over to
attorney); Rubin v. State, 325 Md. 552, 565 (1992) (gun and
bullets allegedly used in murder); People v. Nash, 418 Mich.
196, 216 (1983) (wallet allegedly taken from victim and
revolver, ammunition, and holster allegedly used in killing);
Commonwealth v. Stenhach, 356 Pa. Super. 5, 10 (1986) (broken
stock of rifle allegedly used in killing); State ex rel. Sowers
v. Olwell, 64 Wash. 2d 828, 829 (1964) (knives allegedly used in
crime). But see State v. Bright, 676 So. 2d 189, 193-194 (La.
Ct. App. 1996) (diary).
14
By contrast, the Commonwealth concedes that many of the
materials contained on a cellular telephone are documentary. As
the United States Supreme Court has observed, "The term 'cell
phone' is itself misleading shorthand; many of these devices are
in fact minicomputers that also happen to have the capacity to
be used as a telephone," and "could just as easily be called
cameras, video players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or newspapers."
Riley v. California, 134 S. Ct. 2473, 2489 (2014). Furthermore,
though the Commonwealth asserts that it will acquire a separate
warrant before searching the contents of the telephone, the
evidentiary value of the telephone for the prosecution clearly
inheres in its documentary contents, rather than in the
telephone as a "physical item." Indeed, in its initial motion
for judicial approval of the grand jury subpoena, the
Commonwealth indicated that the "cell phone, specifically the
information contained therein and accessible through a forensic
examination of the phone, constitutes evidence that is essential
to the successful completion of the . . . ongoing grand jury
investigation."
Additionally, the Commonwealth notes that Mass. R. Prof.
C. 3.4 (a), 426 Mass. 1389 (1998), which prohibits a lawyer from
"unlawfully obstruct[ing] another party's access to evidence or
unlawfully alter[ing], destroy[ing], or conceal[ing] a document
15
or other material having potential evidentiary value," requires
that the firm produce the telephone. Because the firm is now
"aware of the [telephone's] import and that it has evidentiary
value," the Commonwealth contends, the firm "cannot circumvent
its ethical obligations" by invoking the attorney-client
privilege. But that argument begs the question. Rule 3.4 (a)
of the Massachusetts Rules of Professional Conduct prohibits a
lawyer from obstructing a party's access to evidence only where
that obstruction is "unlawful." The law firm asserts that its
refusal to produce the telephone is not "unlawful," but is
instead required by the attorney-client privilege.
Because the Commonwealth does not contest that Doe's
privilege against self-incrimination would prohibit it from
compelling Doe to produce the telephone had he retained it, and
because under Fisher the law firm cannot be compelled to produce
materials transferred to it by a client for the provision of
legal advice if the client could not have been compelled to
produce them, we conclude on the record before us that the
attorney-client privilege protects against compelled production
of the telephone.
c. Superior Court judge's decision. Although the judge
approved the issuance of the subpoena, he did so on the basis of
a logic that differs from the arguments advanced by the
Commonwealth on appeal. Unlike the Commonwealth, the judge
16
correctly interpreted Fisher to mean that the law firm "could
refuse to comply with [the subpoena] based on the attorney-
client privilege if, had the subpoena been served directly on
[Doe], he would be able to assert a Fifth Amendment protection
(or parallel protections under art. 12 of the Massachusetts
Declaration of Rights)." The judge nevertheless determined that
the law firm could be compelled to produce the telephone.
The judge observed that, had Doe not transferred the
telephone to his attorney, nothing would prevent the police from
finding and seizing the telephone under a properly issued search
warrant. The judge noted, however, that, because Doe had
transferred the telephone to his lawyers, there was a "fly in
the ointment" of the search warrant approach. General Laws
c. 276, § 1, a general provision governing the issuance of
search warrants, includes in its final paragraph a restriction
on the issuance of search warrants for evidence in the
possession of lawyers, psychotherapists, and clergymen. It
provides, in part, that "no search warrant shall issue for any
documentary evidence in the possession of a lawyer . . .
unless . . . a justice is satisfied that there is probable cause
to believe that the documentary evidence will be destroyed,
secreted, or lost in the event a search warrant does not issue,"
or unless "there is probable cause to believe that the lawyer
17
. . . in possession of such documentary evidence has committed,
is committing, or is about to commit a crime."
The judge thus confronted a situation in which the Fisher
rule and G. L. c. 276, § 1, appeared, in combination, to place
the telephone beyond the reach of law enforcement. Concluding
that G. L. c. 276, § 1, "cannot . . . be used as a shield to
protect clearly inculpatory evidence . . . from the reach of the
law," the judge determined that a subpoena could issue
compelling the law firm to turn over the telephone, but only
upon a showing of the probable cause that ordinarily would be
sufficient, were it not for G. L. c. 276, § 1, to acquire a
warrant to search the law firm's offices and seize the
telephone. In essence, the judge crafted a new rule through an
aggregation of the procedures that would be permitted were it
not for the Fisher rule and G. L. c. 276, § 1. In the absence
of the Fisher rule, the law firm could be compelled to produce
the telephone under subpoena upon the prosecution's satisfying
the requirements of Mass. R. Prof. C. 3.8 (f). In the absence
of G. L. c. 276, § 1, the police could acquire a warrant to
search the law firm's offices if the prosecution established
probable cause to believe that the telephone was located in the
law firm's offices and contained evidence of a crime.
Consequently, the judge concluded that the law firm could be
compelled to produce the telephone under subpoena, but only if
18
the Commonwealth could establish probable cause to believe that
the telephone was located in the law firm's offices and
contained evidence of a crime.
This approach, however, contradicts both case law and the
relevant statute. The judge's approach is built on conflating
search warrants and subpoenas. Yet the act of production
doctrine's underlying premise is that being compelled to produce
evidence in response to a subpoena may involve a forced
incriminating statement that would not occur if law enforcement
simply found the evidence while executing a search. See, e.g.,
Commonwealth v. Hughes, 380 Mass. at 593.
Because the act of production doctrine derives from the
privilege against self-incrimination, moreover, it may not be
set aside based on a showing of probable cause. We have
emphasized the distinction between the protection against
unreasonable searches afforded by the Fourth Amendment and the
more absolute protection afforded by the privilege against self-
incrimination. "[U]nlike the more limited protections of the
Fourth Amendment prohibition against searches and seizures that
are 'unreasonable,'" Blaisdell v. Commonwealth, 372 Mass. 753,
761 (1977), the privilege against self-incrimination admits "no
balancing of State-defendant interests" and does not "yield[] to
'reasonable' intrusions." Id. Law enforcement, for instance,
plainly could not compel a defendant to disclose where he
19
allegedly hid a murder weapon, even if the police could
establish probable cause to believe that the weapon was hidden
somewhere in his house and that, if given a warrant, they would
likely be able to find the weapon eventually anyway. To the
contrary, "where the privilege [against self-incrimination]
applies, it may be overcome only by either (1) a
constitutionally adequate grant of immunity; . . . or (2) a
valid waiver of the privilege by the person who possesses it."
Id. (citation omitted).
Under Fisher, the protection that a client enjoys under the
attorney-client privilege is coterminous with the protection
that a client would have enjoyed under the privilege against
self-incrimination. Consequently, just as the right against
self-incrimination may not be set aside based on judicial
speculation about what the prosecution might be able to find
with a valid search warrant, neither may the Fisher rule. In
short, neither the privilege against self-incrimination nor the
attorney-client privilege may be extinguished on the basis of a
"would've, could've" analysis that invites courts to hypothesize
upon what police might be able to find and seize, if given
enough time and a valid search warrant.
The judge based his decision on a provision in G. L.
c. 276, § 1, that states, "Nothing in this section shall be
construed to abrogate, impair, or limit powers of search and
20
seizure granted under other provisions of the General Laws or
under the common law." Again, however, this conclusion rests on
conflating subpoenas with search warrants, and the prosecution's
ability to compel production of evidence with the prosecution's
power merely to look for it. The Commonwealth did not seek to
obtain the telephone through its "powers of search and seizure."
Instead, it has sought to obtain the telephone via a subpoena.
And the basis upon which we have decided that the Commonwealth
cannot obtain the telephone via subpoena has nothing to do with
G. L. c. 276, § 1, or any other limitation on the Commonwealth's
"powers of search and seizure." Instead, our holding is based
on our determination that the compelled production of the
telephone via a subpoena directed at Doe would violate the act
of production doctrine, and consequently that the compelled
production of the telephone via a subpoena directed at the law
firm would violate the attorney-client privilege under Fisher.
Because the Commonwealth here sought, and the judge allowed, a
subpoena compelling production of the telephone, the provision
of G. L. c. 276, § 1, relating to "powers of search and seizure"
has no bearing on the analysis.
d. Availability of a search warrant under G. L. c. 276,
§ 1. Although the Commonwealth has consistently sought to
acquire the telephone via a subpoena, it does indicate that, if
we decline to authorize the issuance of a subpoena compelling
21
the law firm to produce the telephone, it "will seek a search
warrant to seize the evidence from the law firm." Even if the
Commonwealth were to pursue that approach, however, it would not
gain any support from the provision of G. L. c. 276, § 1,
preserving "powers of search and seizure." That provision
precedes, rather than follows, the paragraph prohibiting
searches of documentary evidence in the possession of lawyers.5
5
The provisions relevant to our discussion appear at the
end of G. L. c. 276, § 1, and provide in full:
"Nothing in this section shall be construed to
abrogate, impair or limit powers of search and seizure
granted under other provisions of the General Laws or under
the common law.
"Notwithstanding the foregoing provisions of this
section, no search and seizure without a warrant shall be
conducted, and no search warrant shall issue for any
documentary evidence in the possession of a lawyer,
psychotherapist, or a clergyman, including an accredited
Christian Science practitioner, who is known or may
reasonably be assumed to have a relationship with any other
person which relationship is the subject of a testimonial
privilege, unless, in addition to the other requirements of
this section, a justice is satisfied that there is probable
cause to believe that the documentary evidence will be
destroyed, secreted, or lost in the event a search warrant
does not issue. Nothing in this paragraph shall impair or
affect the ability, pursuant to otherwise applicable law,
to search or seize without a warrant or to issue a warrant
for the search or seizure of any documentary evidence where
there is probable cause to believe that the lawyer,
psychotherapist, or clergyman in possession of such
documentary evidence has committed, is committing, or is
about to commit a crime. For purposes of this paragraph,
'documentary evidence' includes, but is not limited to,
writings, documents, blueprints, drawings, photographs,
computer printouts, microfilms, X-rays, files, diagrams,
22
See G. L. c. 276, § 1. The latter paragraph opens,
"Notwithstanding the foregoing provisions of this section,"
making it clear that it in fact does limit the powers of search
and seizure. See id. Indeed, because the paragraph prohibits
the issuance of search warrants for documentary evidence except
under certain narrowly drawn circumstances, it plainly does
"abrogate, impair, or limit powers of search and seizure granted
under other provisions of the General Laws or under the common
law." Id.
The Commonwealth offers two reasons why a search for the
telephone would not violate the restrictions that G. L. c. 276,
§ 1, imposes on searches of law offices. First, the
Commonwealth asserts that the search and seizure it contemplates
is not for any "documentary evidence," and thus falls outside
the scope of the statute. Second, the Commonwealth contends
that, even if the statute did apply to the contemplated search
for the telephone, the search falls within the statute's
exceptions for situations where "documentary evidence will be
destroyed, secreted, or lost in the event a search warrant does
not issue." G. L. c. 276, § 1. We address each in turn.
i. The Commonwealth's first argument is easily dismissed.
General Laws c. 276, § 1, contains a broad definition of
ledgers, books, tapes, audio and video recordings, films or
papers of any type or description."
23
"documentary evidence." It provides that, "[f]or purposes of
this paragraph, 'documentary evidence' includes, but is not
limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files,
diagrams, ledgers, books, tapes, audio and video recordings,
films or papers of any type or description." Id. The
Commonwealth concedes that "the modern cell phone may contain
any and all of the above listed categories of evidence."
The Commonwealth's contention that a search for the
cellular telephone would not constitute a search for
"documentary evidence" relies upon the same misplaced
distinction between the telephone as a "physical item" and the
telephone's undeniably documentary contents that the
Commonwealth advances in arguing that the Fisher rule does not
apply, and the distinction fails here for similar reasons. For
instance, while "files" are specifically identified as
"documentary evidence" in the statute, the statute itself does
not refer to file cabinets. If we were to accept the
Commonwealth's distinction between the telephone as a "physical
item" and the documentary materials that the telephone contains,
then the Commonwealth also could acquire a warrant to search an
attorney's office and seize a file cabinet, including the files
it contains, as a "physical item." The Commonwealth conceded in
its motion for issuance of a subpoena that the evidentiary value
24
of the telephone for purposes of investigation derives from the
"documentary" materials contained on the telephone, rather than
from any aspect of the telephone as a "physical item." Under
these circumstances, it is clear that a search for the telephone
is a search for "documentary evidence" within the meaning of
G. L. c. 276, § 1.
ii. The Commonwealth next asserts that a search warrant
may issue in this case because "there is probable cause to
believe that the documentary evidence will be destroyed,
secreted, or lost in the event a search warrant does not issue."
For several reasons, we are unconvinced by the Commonwealth's
argument that, "in the event that the Commonwealth cannot
otherwise obtain the item, the evidence will effectively be
'secreted' and 'lost.'"
The interpretation offered by the Commonwealth diverges
from any accepted definition of "secreted" or "lost." An item
is "secreted" when it is "hid[den]," "conceal[ed]," or
"remove[d] from observation or the knowledge of others"; an item
is "lost" when it is "not be found; missing" or "no longer held
or possessed; parted with." Webster's New Universal Unabridged
Dictionary 1640, 1069 (2d ed. 1983). The Commonwealth's
argument would require that we add to these familiar definitions
a new, distinctly unfamiliar definition: "unobtainable by law
25
enforcement because of the combined effect of a legal privilege
and a statute."
The interpretation offered by the Commonwealth, moreover,
ignores the statute's requirement for a factual showing. To
obtain a search warrant for a lawyer's office, the prosecutor
must make a showing of "probable cause to believe that the
documentary evidence will be destroyed, secreted, or lost in the
event a search warrant does not issue," or that "there is
probable cause to believe that the lawyer . . . in possession of
such documentary evidence has committed, is committing, or is
about to commit a crime." G. L. c. 276, § 1. Under the
interpretation urged by the Commonwealth, this requirement of a
factual showing of probable cause disappears. Instead, whether
an item is "secreted" or "lost" becomes a purely legal issue, on
which the Commonwealth can prevail simply by showing that the
lawyer holding the evidence has invoked a privilege against
compelled production.
The Commonwealth's overarching contention is that the
exception applies to any situation where the application of
G. L. c. 276, § 1, renders documentary materials whose contents
are not themselves privileged unobtainable by law enforcement.
Nothing in the language of the exception supports this view, and
it gains no support from the legislative history of the act that
amended G. L. c. 276, § 1, to add the provision at issue here.
26
The legislative history indicates that the provision was
inserted for two main reasons. First, the provision sought to
ensure that "the holder [of material sought by law enforcement]
has the opportunity to argue that the material is privileged"
before the material is seized, an opportunity unavailable with
search warrants because they are "granted ex parte with no
notice to the holder of the material." Memorandum from Patricia
A. Boies, Deputy Chief Counsel, Office of Legal Counsel, to then
Governor, Michael S. Dukakis (Dec. 18, 1986). Just so, here,
confronted by a subpoena seeking the telephone, the law firm
responded by asserting the attorney-client privilege, as
articulated in Fisher. Fisher had been the law for more than a
decade when the provision was enacted. Because we presume that
the Legislature acts against the backdrop of already-existing
law, see Alliance to Protect Nantucket Sound, Inc. v. Energy
Facilities Siting Bd., 457 Mass. 663, 673 (2010), it is
reasonable to think that Fisher would supply one possible basis
for a claim of privilege.
Second, the legislative history indicates that the
provision sought to counteract the disruptive effect that police
searches could have on "the private, confidential relationships
between the professionals covered and their clients, patients,
or penitents." Boies memorandum, supra. In particular, the
provision was "designed to protect against the situation in
27
which police executing a search warrant may look through many
documents, both privileged and unprivileged, relating to clients
who are not even the subject of the documents sought, and then
must make on-the-spot decisions as to what should or should not
be seized." 1986 House Doc. 6574 (Letter from then Governor
Michael S. Dukakis to the Senate and House of Representatives
[Dec. 24, 1986]). The risk that law enforcement will
inadvertently see or seize private, confidential documents
related to uninvolved third-parties exists whenever law
enforcement executes a search, regardless of whether the
documents that law enforcement is looking for are privileged.
Accordingly, we reject the Commonwealth's contention that
documentary evidence is "secreted" whenever an attorney invokes
the Fisher rule to resist its compelled production. Instead, we
conclude that the exception applies, as it says, only where
"there is probable cause to believe that the documentary
evidence will be destroyed, secreted, or lost in the event a
search warrant does not issue." As indicated, this is a fact-
specific determination. Were the Commonwealth to seek a search
warrant on the same record that was before the Superior Court
judge in March, 2014, when the Commonwealth moved for judicial
approval for a subpoena, it would not satisfy the "secreted"
exception. At that time, the Commonwealth agreed that the
telephone had been given to the law firm for purposes of
28
acquiring legal advice. Nothing in the record suggests that in
March, 2014, the law firm was no longer engaged in providing the
requested advice. The privileged retention of client documents
in such circumstances cannot be said to be the secretion of
those documents. Hence, in this case, on this record, there is
no evidence suggesting secretion of the documents. We leave for
another day the question whether and under what circumstances
the prolonged retention by counsel of client documents
unprotected or no longer protected by any privilege might
qualify as secreting under the meaning of G. L. c. 276, § 1.
Notwithstanding the foregoing, we are mindful of the
concern that, if evidence possibly obtainable via a search when
it was in the client's hands were to become immune from both
search and subpoena when placed in an attorney's hands, the
result will be, as the Superior Court judge noted, "a race . . .
to the lawyer's office." We make several observations.
First, G. L. c. 276, § 1, only operates to bar the search
of an attorney's offices in a narrow set of circumstances. The
statute is limited to searching for documentary evidence and
would not typically encompass situations where a client seeks to
hide the instrumentalities or proceeds of a crime at an
attorney's office. While the telephone at issue here
constitutes "documentary evidence" under the statute, the
statute also provides explicit exceptions for circumstances
29
where the evidence "will be destroyed, secreted or lost in the
event a search warrant does not issue," or for circumstances
where the holder of the evidence "has committed, is committing,
or is about to commit a crime."
Second, it is the act of producing the telephone by the law
firm, rather than the telephone itself, that is covered by the
attorney-client privilege. The client's right against compelled
production by his or her attorney is not absolute. To fall
under the Fisher rule, materials whose contents are not
themselves privileged must have been transferred to counsel "for
the purpose of obtaining legal advice." Fisher, 425 U.S.
at 404. Accordingly, when a client transfers materials to an
attorney for purposes of shielding them from law enforcement's
reach, the Fisher rule offers no protection.6
Third, nothing we have said suggests that a lawyer, having
received materials whose contents are not themselves privileged
for purposes of rendering legal advice, may retain such
materials indefinitely, absent a continuing bona fide need and
purpose related to the provision of legal advice. Any
6
The act of production doctrine is itself not absolute and
admits of the "foregone conclusion" exception. See Commonwealth
v. Gelfgatt, 468 Mass. 512, 522 (2014) (Commonwealth may compel
a testimonial and incriminating act of production if it can
establish that "the information that would be disclosed by [a]
defendant is a 'foregone conclusion'"). The Commonwealth does
not argue that the exception has any application to the facts of
record here.
30
assessment of whether and, if so, when client materials would
cease to be protected by the Fisher rule is, of course, a
complex matter, involving factual determinations that will
depend on the specific circumstances presented. Because the
Commonwealth has never argued that either Doe's initial transfer
of the telephone or the law firm's continued retention of it are
not justifiable "for the purpose of obtaining legal advice"
under Fisher, and the parties have not provided briefing on the
issue, we do not address the availability of a subpoena
compelling the production of evidence in other circumstances.7
3. Conclusion. Confining ourselves to the record that was
before the Superior Court judge in March, 2014, we conclude that
Doe's attorney-client privilege protects against compelled
production of the telephone by the law firm. We remand the
matter to the single justice for entry of a judgment allowing
Doe's petition for relief under G. L. c. 211, § 3, ordering the
Superior Court to reverse the order approving the issuance of a
grand jury subpoena duces tecum, and for such other proceedings
as are consistent with this opinion.
So ordered.
7
We note that the concurrence proposes a protocol in
circumstances that are not before us, and we take no view as to
its propriety.
CORDY, J. (concurring, with whom Gants, C.J., and Spina,
J., join). John Doe is the target of a grand jury
investigation. According to evidence gathered in the course of
that investigation, Doe's cellular telephone contains evidence
of the criminal activities under investigation. In June, 2013,
Doe transferred his cellular telephone to a law firm that was
providing him legal advice. After demonstrating that the
Commonwealth had probable cause to believe that the cellular
telephone contained evidence of the crimes under investigation,
the judge below authorized the issuance of a subpoena to the law
firm requiring it to produce the cellular telephone before the
grand jury.
In objecting to the issuance of the subpoena, neither Doe
nor the law firm contends that the cellular telephone contains
any communications or other information stored on its memory
that might be protected by the attorney-client or any other
privilege. Rather, they contend that because the cellular
telephone may contain incriminating evidence, compelling Doe to
produce it before the grand jury by means of a subpoena would
essentially compel a testimonial acknowledgement from him that
the cellular telephone was his. Consequently, the law firm
argues, having come into possession of the cellular telephone in
the course of giving Doe legal advice, it also cannot be
compelled by subpoena to produce the cellular telephone before
2
the grand jury. The law firm and Doe further argue that G. L.
c. 276, § 1, the statute governing the issuance of search
warrants, does not permit the Commonwealth to search for and
seize the cellular telephone while it remains in the possession
of the law firm, even though it could be obtained from Doe
through that mechanism. Thus, they argue, the Commonwealth is
effectively precluded from obtaining any of the nonprivileged
information on the cellular telephone relevant to the criminal
investigation, at least on the record before the judge below.
I agree with the court that Fisher v. United States, 425
U.S. 391, 402 (1976), controls the subpoena question in this
case. Where the cellular telephone (cell phone) was turned over
to the law firm for the purpose of obtaining legal advice, and
Doe himself could not have been compelled to produce the phone
in response to a similar subpoena because the act of production
would be both testimonial and incriminating, the umbrella of the
attorney-client privilege protects it from compelled production.
I also agree that the record below is inadequate to make a
judgment about the propriety of issuing a search warrant. I
write separately, however, to emphasize that placing the cell
phone (or any other incriminating documentary evidence) in the
hands of an attorney does not sequester it under Massachusetts
law from the reach of law enforcement pursuant to G. L. c. 276,
§ 1, where it is not claimed that the cell phone itself is
3
privileged or contains privileged material, where there is
probable cause to believe that it contains evidence of crimes
under investigation by the grand jury, and where it is no longer
being retained for the purpose of rendering legal advice. To
interpret G. L. c. 276, § 1, otherwise would stand completely at
odds with clear legislative intent.
General Laws c. 276, § 1, was amended by c. 691 of the Acts
of 1986 to provide special protections for documentary evidence
in the possession of lawyers, psychotherapists, and clergymen,
from the intrusions that might be caused by the execution of
search warrants, except in circumstances where the failure to
issue such a warrant might result in the evidence being
unavailable through secretion, destruction, or loss.1 The 1986
amendment identified these professionals and provided unique
protections for documents in their files precisely because the
law provides special privileges to the consultations they have
with their clients, patients, or parishioners. The Legislature
recognized that a search of their files for nonprivileged
documents (pursuant to a search warrant) would pose a
significant risk that the privileges of innocent third parties
1
The amendment also provided that a search warrant for such
documentary evidence could be obtained if there was probable
cause to believe that the lawyer, psychotherapist, or clergyman
in possession of the evidence had committed, was committing, or
was about to commit a crime.
4
would be compromised. See, e.g., 1986 House Doc. No. 6574
(Letter from then Governor, Michael S. Dukakis, dated December
24, 1986, explaining purpose of amendment is to protect
confidential relationship of covered professionals and their
clients); Letter from Karen Hudner, Legislative Agent, Civil
Liberties Union of Massachusetts, to then Governor, Michael S.
Dukakis (Dec. 9, 1986) (Hudner letter) (arguing amendment would
protect privacy of third persons in confidential relationships
with covered professionals); Memorandum from Patricia A. Boies,
Deputy Chief Counsel, Office of Legal Counsel, to the then
Governor, Michael S. Dukakis (Dec. 18, 1986) (Boies memorandum)
(highlighting proponents' concern that police, while executing a
search warrant, look through privileged and unprivileged
documents that are both related and unrelated to subject of
search).
As repeatedly articulated by the proponents of the
legislation, over the many years it was under consideration by
the Legislature, the legislation was intended "to protect
innocent third parties in a confidential legal or medical
relationship . . . [and] would affirm that in Massachusetts
. . . the privacy of innocent people is protected against
unnecessary intrusion." Hudner letter, supra. The proponents
also proclaimed that the amendment would not impede the
legitimate interests of law enforcement because "their right to
5
subpoena the very same material would still be available to
them." Letter from James T. Hilliard, Counsel, Massachusetts
Psychiatric Society, to then Governor, Michael S. Dukakis (Dec.
16, 1986). In other words, there would be "no harm from this
[amendment], which would merely shift [the gathering of
evidence] to the usage of a subpoena duces tecum," a more
surgical instrument, thereby "permit[ting] orderly litigation of
the issue of privilege." Letter from Arnold R. Rosenfeld, Chief
Counsel, Committee for Public Counsel Services, to then
Governor, Michael S. Dukakis (Dec. 10, 1986). See Letter from
Nathan A. Talbot, Committee on Publication for Massachusetts,
The First Church of Christ, Scientist, to then Governor, Michael
S. Dukakis (undated) (stating amendment would not hinder
investigations). Indeed, in proposing amended language that
narrowed the breadth of the amendment and ultimately became the
statutory language, the Governor urged the General Court to
adopt his language because it would accomplish the purpose of
protecting privileged relationships without having "the
unintended effect of resulting in the loss of evidence not
protected by any privilege." 1986 House Doc. No. 6574. There
is, however, nothing in the extensive legislative history
leading to the adoption of the amendment to suggest that the
Legislature (or the proponents) considered the circumstances of
the present case -- where a subpoena is not available as an
6
alternative to the Commonwealth for reasons unrelated to the
privileged nature of the documents themselves.
To interpret the 1986 amendment to bar the seizure upon
warrant of unprivileged evidence of a crime, where the evidence
cannot be obtained by subpoena only because of the incriminating
nature of the act of compelled production, runs counter to (not
in accord with) the purposes of its enactment as articulated by
the Governor and its proponents. See, e.g., Boies memorandum,
supra (explaining opportunity to litigate privilege issue before
seizure was crucial to proponents). Simply put, the amended law
was never intended to permanently shield from seizure
unprivileged evidence of criminal activity placed in the hands
of an attorney by a client under investigation, or to create a
depository for the secretion or sequestration of such evidence
from law enforcement. See, e.g., 1986 House Doc. No. 6574
(proposing language -- ultimately accepted -- that avoids
unintended protection of unprivileged materials). Indeed, the
exclusions in the amendment for documents that might become
destroyed, lost, or secreted from the Commonwealth is consistent
with the Legislature's intention not to make unprivileged
material unavailable to the Commonwealth.
In light of the extensive legislative history at our
disposal laying out the contrary intentions of all parties to
the legislative process, our responsibility is to interpret the
7
statute in accord with those intentions if at all possible.
Commonwealth v. Parent, 465 Mass. 395, 409 (2013), quoting
Commonwealth v. Rahim, 441 Mass. 273, 278 (2004) ("[court] need
not adhere strictly to the statutory words if to do so would
lead to an absurd result or contravene the clear intention of
the Legislature").
I am of the view that both the interests protected by the
amendment and the Commonwealth's interest in securing evidence
not intended to be protected by the amendment can be reconciled,
and I would not preclude such a reconciliation on an adequate
record. I would conclude that in the circumstances where it
appears that an item of evidence sought by the Commonwealth
cannot be obtained from the law firm by the issuance of a
subpoena because of its client's privilege regarding production,
and where, as a consequence, a search warrant would ordinarily
be necessary, the warrant application should be presented to a
judge, with those circumstances set out in an affidavit. The
judge should then issue a short order of notice to the law firm,
giving it an opportunity to raise any privilege that might
protect the item from seizure. Along with the short order of
notice, the judge should issue an order barring the law firm
from transferring or destroying the item pending further ruling
of the court. In this manner, the unprivileged and relevant
evidence is not lost to the Commonwealth, and there is an
8
opportunity prior to a search for privileges to be raised and
litigated. If the judge concludes that no privilege applies to
the item and that its retention by the law firm is no longer for
the purpose of or necessary to the rendering of legal advice,
the judge may properly order the warrant to issue.2 In such
circumstances, the continued retention of the evidence would
constitute its concealment within the meaning of the term
"secreted" as used in G. L. c. 276, § 1.3 The judge may further
direct the parties to fashion a protocol unlikely to pose a risk
to the privileges of other documents or clients or to result in
a production that is testimonial and incriminating. See, e.g.,
Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810,
824-25, 828 (2013) (summarizing court's ordered procedure for
privilege review); Commonwealth vs. Ellis, Mass. Super. Ct. Nos.
97-192, 97-562, 98-355, 97-193, 97-561, 97-356, and 97-563, slip
op. at 44-45 (Aug. 18, 1999) (outlining procedure used to search
2
The Restatement (Third) of the Law: The Law Governing
Lawyers § 119 comment (c) (Physical Evidence of a Client Crime)
(2000), provides that although it may be reasonably necessary
for purposes of representation to take possession of evidence
for the time necessary to examine it, "physical evidence of a
client crime in possession of the lawyer may not be retained to
a point at which its utility as evidence for the prosecution is
significantly impaired."
3
"Secrete" is defined in Black's Law Dictionary 1557 (10th
ed. 2014), as "to remove or keep from observation, . . . to
conceal . . . to hinder or prevent officials . . . from finding
it."
9
law firm records). See also ABA Standards for Criminal Justice
§ 4-4.6 (Physical Evidence) (3d ed. 1993) ("If defense counsel
retains the item [of evidence], he or she should retain it in
his or her office in a manner that does not impede the lawful
ability of law enforcement authorities to obtain the item").
Accordingly, while I would reverse the judge's order
authorizing the issuance of a grand jury subpoena, I would not
preclude the issuance of a search warrant on a more complete
record with regard to the status of the cellular telephone
evidence, its utility as evidence of a crime, and whether its
continued retention is necessary for the purpose of rendering
legal advice.