In Re: Grand Jury Subpoena

United States Court of Appeals
For the First Circuit

No. 18-1464
IN RE: GRAND JURY SUBPOENA

PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]

Before
Howard, Chief Judge,
Kayatta and Barron, Circuit Judges.

Neil F.X. Kelly, Assistant Attorney General for the State of
Rhode Island, with whom Peter F. Kilmartin, Attorney General of
the State of Rhode Island, and Sean Lyness, Special Assistant
Attorney General for the State of Rhode Island, were on brief, for
petitioner.
Donald C. Lockhart, with whom Stephen G. Dambruch, United
States Attorney, was on brief, for respondent.

November 21, 2018
 KAYATTA, Circuit Judge. The Rhode Island Department of

Education and Training ("Department") petitions us for a writ of

advisory mandamus to answer the following question: May a state

government successfully invoke the attorney-client privilege in

response to a federal grand jury subpoena? The petition comes in

response to a holding by a federal district court in the District

of Rhode Island that the privilege is categorically unavailable to

a state government in receipt of a federal grand jury subpoena.

For the reasons discussed below, we grant the writ and explain why

such a categorical rule is not appropriate.

I.

Given that portions of the record are sealed, we discuss

the factual background of this matter only briefly. A federal

grand jury sitting in the District of Rhode Island subpoenaed

certain records from the Department. The Department moved to quash

the subpoena to the extent it sought to compel the production of

documents containing confidential communications between

Department staff and Department legal counsel. The district court

denied the motion and ordered the Department to turn over the

requested communications, holding that, as a categorical matter,

"the attorney-client privilege does not shield communications

between government lawyers and their clients from a federal grand

jury." Order at 2, In re Grand Jury Subpoena (R.I. Dep't of Labor

and Training), No. 18-4 WES (D.R.I. Apr. 25, 2018). The district

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court declined to certify the issue for appeal under 28 U.S.C.

§ 1292(b), Order at 5, In re Grand Jury Subpoena (R.I. Dep't of

Labor and Training), No. 18-4 WES (D.R.I. May 16, 2018), leaving

the Department with only one traditional option for gaining

appellate review: refusing to comply with the subpoena, incurring

a contempt order, and appealing from that order. Reluctant to

violate a court order, the Department instead petitioned this court

for a writ of advisory mandamus under 28 U.S.C. § 1651 directing

the district court to quash the subpoena.

II.

We consider first whether advisory mandamus is

available. The All Writs Act, 28 U.S.C. § 1651, empowers federal

courts to "issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law." One of these writs is the writ of mandamus,

which comes in two varieties. The more commonly sought writ is

that of supervisory mandamus, which is available when "the issuance

(or nonissuance) of [a district court] order presents a question

anent the limits of judicial power, poses some special risk of

irreparable harm to the [party seeking mandamus], and is palpably

erroneous." United States v. Horn, 29 F.3d 754, 769 (1st Cir.

1994). The Department does not contend that this more common form

of mandamus is available here. Rather, it seeks a writ of advisory

mandamus, which we have described as being available only in "rare

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cases; the usual requisites are that the issue be an unsettled one

of substantial public importance, that it be likely to recur, and

that deferral of review would potentially impair the opportunity

for effective review or relief later on." United States v. Pleau,

680 F.3d 1, 4 (1st Cir. 2012) (en banc).

We have little trouble concluding that the first two

requisites for invoking advisory mandamus are satisfied here. The

parties agree that the issue on which our opinion is sought is

unsettled in this circuit, while (as we will discuss) other

circuits are split. And the degree to which communications between

government counsel and public employees may be shielded from a

grand jury subpoena is of substantial public importance.

Significantly, too, the petition seeks our opinion on a rule of

law and not on the manner in which the trial court exercised its

discretion. See In re Insurers Syndicate, 864 F.2d 208, 211 (1st

Cir. 1988) ("[M]andamus, as a general rule, will not issue to

control exercises of judicial discretion."). We also see the issue

as likely to recur; the fact that multiple circuits have already

weighed in on the subject suggests as much, and the United States

offers little to persuade us otherwise. Indeed, the ruling below

in this very case makes it more likely that grand juries will seek

such information. And if the district court ruling remains extant,

it may dissuade public officials in other cases from challenging

subpoenas or perfecting appeals from subsequent district court

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opinions that track the holding below in this case. Finally,

prolonged doubt about the sustainability of the privilege in the

face of grand jury subpoenas could leave many public officials

uncertain about how to conduct themselves in seeking -- or not

seeking -- legal advice.

The more challenging question is whether refusing to

exercise our mandamus jurisdiction "would potentially impair the

opportunity for effective review." Pleau, 680 F.3d at 4. The

United States argues that the Department can secure effective

review by defying the subpoena, incurring a contempt order, and

appealing that order. The Department concedes that a private party

may follow such a path without too much difficulty in order to

obtain interlocutory review of a discovery ruling. See Alexander

v. United States, 201 U.S. 117, 121 (1906). Nevertheless, the

Department contends that it has a heightened duty to follow (and

to be perceived to follow) the law. For that reason, it argues

that its ability to seek appellate review in ordinary course is

impaired as compared to the ability of private parties to seek

such review.

We agree with the Department that the option of

perfecting an appeal in ordinary course by triggering a finding of

contempt may be materially less attractive -- and thus less readily

available -- to a government agency than it might be to a private

party. In so concluding, we recognize that we have nevertheless

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twice found a witness's status as a government employee

insufficient to justify foregoing the need to trigger a contempt

finding as a predicate to appeal. See Bennett v. City of Bos., 54

F.3d 18, 21 (1st Cir. 1995); Corporacion Insular de Seguros v.

Garcia, 876 F.2d 254, 260 (1st Cir. 1989). In neither case,

however, were we asked to consider a grant of advisory mandamus.

Rather, Bennett clearly concerned a request for traditional,

supervisory mandamus. See Bennett, 54 F.3d at 21 (analyzing the

traditional mandamus factors). And while Garcia did not expressly

identify the form of mandamus relief to which it referred, it

relied on a Supreme Court opinion that plainly concerned the

subject of traditional, supervisory mandamus relief. See Garcia,

876 F.2d at 260 (citing Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271, 290 (1988)). One of the factors required for

this court to grant traditional, supervisory mandamus is that the

district court order be "palpably erroneous." Bennett, 54 F.3d at

21; see also Gulfstream Aerospace Corp., 485 U.S. at 290 (finding

traditional, supervisory mandamus available only when the district

court "clearly overstepped its authority"). In such a case, a

party held in contempt can be relatively confident that a

successful appeal in ordinary course will deliver vindication. To

obtain advisory mandamus, however, the issue must be "unsettled."

Pleau, 680 F.3d at 4. Hence the risk of being found in contempt

with no eventual vindication is greater in this case than it was

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in Bennett or Garcia. For this reason the Department has shown,

albeit barely, that the enhanced impediment it faces as a

governmental entity to securing appellate review in ordinary

course supports a discretionary grant of advisory mandamus relief

assuming that all other requisites are well satisfied. See In re

The Justices of the Supreme Court of P.R., 695 F.2d 17, 25 (1st

Cir. 1982) (granting advisory mandamus relief even though

traditional appellate review was available because "[t]o require

the Justices unnecessarily to assume the role of advocates or

partisans on these issues would tend to undermine their role as

judges").

We are also confident that the other requisites are well

satisfied. The novelty of the question, its substantial public

importance, and its likeliness to recur -- coupled with the strong

solicitude the common law has afforded the attorney-client

privilege, see Upjohn Co. v. United States, 449 U.S. 383, 389

(1981), and the heightened federalism concerns implicated in this

case, see In re Justices of Superior Court Dep't of Mass. Trial

Court, 218 F.3d 11, 16 (1st Cir. 2000) -- weigh in favor of our

accepting jurisdiction. This question need only be decided once,

and once it has been decided, the answer can govern future

privilege disputes. We therefore proceed to the merits.

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 III.

A.

While the federal rules of evidence generally do not

apply to grand jury proceedings, an exception exists for privilege

rules. Fed. R. Evid. 1101(d)(2). And, pursuant to Fed. R.

Evid. 501, "[t]he common law -- as interpreted by the United States

courts in the light of reason and experience -- governs a claim of

privilege." The rationale for the attorney-client privilege "has

long been recognized." Upjohn, 449 U.S. at 389. The Supreme Court

has explained:

Its purpose is to encourage full and frank
communication between attorneys and their
clients and thereby promote broader public
interests in the observance of law and
administration of justice. The privilege
recognizes that sound legal advice or advocacy
serves public ends and that such advice or
advocacy depends upon the lawyer's being fully
informed by the client. As we stated . . . in
Trammel v. United States, "The lawyer–client
privilege rests on the need for the advocate
and counselor to know all that relates to the
client's reasons for seeking representation if
the professional mission is to be carried
out." And in Fisher v. United States, we
recognized the purpose of the privilege to be
"to encourage clients to make full disclosure
to their attorneys."

Id. (citations omitted). In a display of understatement, we have

described the privilege as "well-established." In re Keeper of

the Records (XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003). At the

same time, "the privilege is not limitless, and courts must take

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care to apply it only to the extent necessary to achieve its

underlying goals. . . . [It] must be narrowly construed because

it comes with substantial costs and stands as an obstacle of sorts

to the search for truth." Id. (citation omitted).

The application of the attorney-client privilege to

communications between government officials implicates competing

public interests. Confidentiality furthers the public interest by

making it more likely that public employees will seek to know the

law when contemplating certain actions. On the other hand, in the

case of public employees, one might say that the ultimate client

is the public and that the public interest in transparent

government processes cuts against the robust maintenance of any

privilege.

Four circuits have weighed in on the subject of grand

jury subpoenas seeking confidential communications between

government attorneys and government officials. Of those, three

have found that the privilege does not apply to such

communications, see In re A Witness Before the Special Grand Jury

2000-2, 288 F.3d 289 (7th Cir. 2002); In re Bruce R. Lindsey (Grand

Jury Testimony), 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury

Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), and one has

found the opposite, see In re Grand Jury Investigation, 399 F.3d

527 (2d Cir. 2005). The split is more even, however, when

considering only the cases in which a federal grand jury sought

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potentially privileged materials from state officials. Within

this subsection of cases, one circuit has found that the privilege

does not apply, see In re A Witness Before the Special Grand

Jury 2000-2, 288 F.3d at 293-94, and one has found the opposite,

see In re Grand Jury Investigation, 399 F.3d at 532–35.

B.

Turning to our own analysis, we consider first the

related arguments that a government lawyer should not be able to

assert the privilege because the lawyer's ultimate duty is to the

public, that the governmental entity need not fear prosecution,

and that the privilege need be overborne by the public interest in

transparent government. See In re A Witness Before the Special

Grand Jury 2000-2, 288 F.3d at 293–94 (noting that "government

lawyers have a higher, competing duty to act in the public

interest" and citing In re Bruce R. Lindsey (Grand Jury Testimony),

158 F.3d at 1273, for the proposition that there exists a public

interest in "transparent and accountable government"); id. at 294

("A state agency, however, cannot be held criminally liable by

either the state itself or the federal government."). Were these

arguments dispositive, it should follow that a government could

not assert the attorney-client privilege in response to a civil

subpoena or a discovery request on a matter of public importance.

Yet federal common law is directly to the contrary. As the Supreme

Court explained in United States v. Jicarilla Apache Nation:

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 The objectives of the attorney-client
privilege apply to governmental clients. "The
privilege aids government entities and
employees in obtaining legal advice founded on
a complete and accurate factual picture."
Unless applicable law provides otherwise, the
Government may invoke the attorney-client
privilege in civil litigation to protect
confidential communications between
Government officials and Government
attorneys.

564 U.S. 162, 169–70 (2011) (citation omitted) (quoting

1 Restatement (Third) of the Law Governing Lawyers § 74 cmt. b

(Am. Law Inst. 1998)).

We take from this precedent the conclusion that the

public nature of the Department cannot itself deem the privilege

inapplicable. Something more is needed. That something more,

according to the United States, is the fact that the subpoena here

comes from a criminal grand jury seeking evidence of a crime. But

neither can that justification by itself be enough to sustain the

United States' position. After all, subpoenas in criminal

investigations are routinely served on private entities, yet those

entities can successfully assert the attorney-client privilege.

See, e.g., In re Grand Jury Subpoena, 273 F. Supp. 3d 296, 300-04

(D. Mass. 2017).

C.

So none of the United States' principal arguments for

sustaining the broad "no privilege" rule that the district court

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adopted can carry the day on their own. The United States is

therefore left to argue that its arguments can do the trick when

combined; i.e., if the proceeding is criminal and the witness is

a government employee or entity, then the privilege does not apply.

As for why the United States' arguments might accomplish together

what none can do on its own, the United States does not say.

Rather, it points to cases applying federal law to federal actors.

See In re Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d at

1266; In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 915. But

those decisions turn on the application of 28 U.S.C. § 535(b),

which mandates that federal employees report any wrongdoing they

may witness to the Attorney General but does not purport to require

any such disclosure by state employees.

Moreover, the federal-state conflict that the

availability of the attorney-client privilege implicates may cut

in favor of respecting the state's view of the best balance between

the public's interest in government transparency and the

beneficial aspects of the privilege. See In re Grand Jury

Investigation, 399 F.3d at 534 (discussing the federalism concerns

the question implicates and noting that Connecticut chose to adopt

strong privilege rules against its own investigators). In brief,

why should the federal grand jury -- without direction from

Congress -- get to overrule a state's decision on how best to

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operate its own government when there is no claim of wrongdoing by

state officials?

On the other hand, the United States' argument gathers

much more force when the federal grand jury is investigating

potential crimes that state officials or employees may have

committed themselves. The public interest in uncovering and

stopping crime grows substantially when crime invades the very

institutions that establish and preserve our balance of order and

freedom. In the face of such an invasion, the government and its

powers and fisc may become instruments for facilitating rather

than deterring crime. And, in such circumstances, the benefit of

federalism may well rest more in its checking function than in its

deference to the state. For these reasons, it is perhaps not

surprising that in all of the cases in which any of our fellow

circuits have rejected otherwise valid assertions of the attorney-

client privilege by government entities or persons, the search for

information was aimed at suspected wrongdoing within the

government. See In re A Witness Before the Special Grand Jury

2000-2, 288 F.3d at 290 (investigating potential wrongdoing by the

Governor of Illinois); In re Bruce R. Lindsey (Grand Jury

Testimony), 158 F.3d at 1266 (investigating potential wrongdoing

by the President of the United States); In re Grand Jury Subpoena

Duces Tecum, 112 F.3d at 913-14 (same). So in this context --

i.e., a grand jury investigating potential crime within the

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government -- the United States' principal arguments are both

joined in reinforcement and heightened in their importance, enough

so, perhaps, to tip the balance.

Here, though, the United States made no attempt to

persuade the district court that the grand jury's subpoena is

targeted at wrongdoing by government officials themselves. And,

at oral argument, Rhode Island's Attorney General stated that as

a matter of practice, the state would not assert the privilege if

the investigation were targeted at state misconduct. So we have

no reason to decide whether and on what type of showing a subpoena

targeted at wrongdoing by state officials might overbear any

privilege that might otherwise be asserted. Instead, on the record

as it now stands, we need simply reject the categorical rule that

a state government has no attorney-client privilege that can be

invoked in response to a grand jury subpoena.

IV.

We cannot fault the district court for adopting what it

viewed to be the majority position on a difficult issue of first

impression in this circuit. Nonetheless, the petition for a writ

of mandamus is granted. The writ shall issue in accordance with

this opinion directing the district court to vacate its denial of

the motion to quash.

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