In Re Grand Jury Subpoena

United States Court of Appeals
For the First Circuit

No. 10-2048

IN RE GRAND JURY SUBPOENA (MR. S.).

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Howard, Ripple* and Selya,

Circuit Judges.

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C.
was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

November 1, 2011

*
Of the Seventh Circuit, sitting by designation.
 SELYA, Circuit Judge. This appeal challenges the

district court's refusal to quash a grand jury subpoena. It poses

questions about the attorney-client and Fifth Amendment privileges.

After careful consideration, we affirm.

I. BACKGROUND

We begin with a brief account of the relevant facts. To

preserve the confidentiality of grand jury proceedings, see Fed. R.

Crim. P. 6(e), we use pseudonyms in place of the real names of the

protagonists.

On August 24, 2009, a federal grand jury in the District

of Maine directed a subpoena to the custodian of records at the Doe

Law Office, commanding production of:

Any and all records relating to the purchase
of real property by [Mr. S.] from [Mr. and
Mrs. X] on November 20, 2007, that was
facilitated by [Attorney Doe's Law Office and
Title Company,] including, but not limited to,
real estate HUD statements, closing statement,
sales contract(s) and record of payment,
particularly the source and type of funds used
(cash, personal check, bank checks, etc.) to
purchase the property by [Mr. S.] and/or any
other person.

Attorney Doe contacted Mr. S. to verify that he did not object to

production of the subpoenaed documents. Having secured Mr. S.'s

verbal consent, Doe complied with the subpoena and produced the

documents.1

1
To facilitate an understanding of the issues presented in
this appeal, we set forth an inventory of the delivered documents
in an appendix to this opinion.

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 Within a matter of days, Mr. S. had second thoughts. He

retained separate counsel, who notified the United States

Attorney's Office (USAO) that the documents were privileged. By

that time, however, the documents had been inspected by a USAO

paralegal. To maintain the status quo pending a determination of

the claim of privilege, the USAO placed them under seal.

In due course, Mr. S. moved to quash the subpoena. See

Fed. R. Crim. P. 17(c)(2). He principally argued that the

subpoenaed documents were protected by the attorney-client

privilege. In support, he noted that Doe is licensed to practice

law and professes to have special expertise in real estate

transactions; that he sought Doe's legal services in connection

with the real estate transaction identified in the subpoena; and

that Doe represented him in that transaction, billed him for

services rendered, and "used his client trust account" while

performing those services. He added that Doe employed the term

"Esquire" when signing "documents and correspondence."

As a fallback, Mr. S. also argued that if the subpoenaed

documents had been in his possession, the act of production would

have been testimonial and, thus, protected by a Fifth Amendment

privilege. Therefore, he insisted, the government could not compel

Doe to produce those documents over his objection.

The government opposed the motion to quash. It asserted

that neither the attorney-client privilege nor the Fifth Amendment

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privilege applied. In addition, it submitted the documents that

Doe had delivered for in camera review.

In his reply, Mr. S. took a new slant. He cited Fisher

v. United States, 425 U.S. 391 (1976), for the proposition that a

combination of the attorney-client and Fifth Amendment privileges

blocked any compelled disclosure of the subpoenaed documents.

The district court referred the motion to a magistrate

judge. See 28 U.S.C. § 636(b). The magistrate judge examined the

documents in camera and determined that no privilege attached.

Specifically, the magistrate judge found that nothing in the

subpoenaed documents "reflect[ed] the seeking or provision of legal

advice" and that those documents "lack a confidential nature."

Accordingly, he denied the motion to quash.2

After some backing and filling not relevant here, Mr. S.

lodged objections to the magistrate judge's order. The district

court independently examined the documents in camera and reviewed

the legal issues posed by Mr. S.'s objections. It then summarily

affirmed the magistrate judge's order. This timely appeal

followed.

2
The magistrate judge purported to make a binding order
rather than a recommendation. That procedure is problematic, given
the dispositive character of the motion. See NLRB v. Frazier, 966
F.2d 812, 816-18 (3d Cir. 1992). But neither side has questioned
the procedure and, in view of the district court's de novo review,
any error was harmless.

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 When evaluating a privilege determination, the standard

of review varies according to the nature of the precise issue

involved. See In re Keeper of the Records (Grand Jury Subpoena

Addressed to XYZ Corp.), 348 F.3d 16, 21 (1st Cir. 2003). Rulings

on questions of law are reviewed de novo, findings of fact are

reviewed for clear error, and evidentiary determinations are

reviewed for abuse of discretion. Id.

II. ANALYSIS

It is an ancient platitude that a grand jury has a right

to every man's evidence. Yet this right is not absolute. For

present purposes, three examples have potential pertinence.

First, an individual may invoke the attorney-client

privilege to avoid the production of documents that are the fruits

of confidential communications between him and his attorney. Miss.

Pub. Emps.' Ret. Sys. v. Bos. Scientific Corp., 649 F.3d 5, 30 (1st

Cir. 2011). Second, an individual may assert the Fifth Amendment

to prevent the compelled production of documents in his possession

if the act of production is both testimonial and self-

incriminating. See Fisher, 425 U.S. at 408. Third, if an

individual possesses documents that are privileged from compelled

disclosure under the Fifth Amendment and transfers them to his

counsel in order to obtain legal advice, those documents are

protected under the attorney-client privilege. Id. at 402-05

(explaining that in such a situation, "the papers, if unobtainable

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by summons from the client, are unobtainable by summons directed to

the attorney").

In this venue, Mr. S. argues that the subpoenaed

documents are protected from compelled divulgement by the attorney-

client and Fifth Amendment privileges, severally and in

combination. He also advances a claim of procedural error. We

start there.

A. In Camera Review.

Prior to ruling on the motion to quash, the district

court reviewed the subpoenaed documents in camera and determined

that they were not privileged. While Mr. S. does not directly

dispute the findings derived from this review, he asserts that it

was error for the court to conduct an in camera review before the

government had produced sufficient evidence to support a reasonable

belief that the documents were evidence of a crime or fraud. Mr.

S.'s assertion is triply flawed.

First, it is not necessary to resort to the crime-fraud

exception to the attorney-client privilege, until the privilege

itself has been attached. The burden of showing that documents are

privileged rests with the party asserting the privilege. See In re

Keeper of the Records, 348 F.3d at 22. Mr. S.'s position

constitutes a thinly veiled effort to turn this principle inside

out and shift that burden to the government.

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 Second, Mr. S.'s position represents a disingenuous

attempt to graft onto this case the facts and holding of United

States v. Zolin, 491 U.S. 554 (1989). In Zolin, the Court

considered the crime-fraud exception to the attorney-client

privilege (the lower courts had found that the privilege was

established). Id. at 563-64. The Court held, among other things,

that when a party seeks to invoke the crime-fraud exception, a

modest evidentiary threshold must be crossed before a judge may

conduct an in camera review. Id. at 570-72. To be specific, the

party must make a factual showing "sufficient to support a

reasonable belief that in camera review may yield evidence that

establishes the [crime-fraud] exception's applicability." Id. at

574-75.

Seizing upon this holding, Mr. S. argues that the

district court was not entitled to inspect the documents because

there is no evidence indicating that the crime-fraud exception

applies. That argument is off-point because the crime-fraud

exception is not implicated in this case. Rather, the government

asserts that the essential elements of the attorney-client

privilege itself are lacking. Zolin is, therefore, inapposite.

Third, and most important, the very purpose of conducting

an in camera review is to determine which, if any, of a group of

documents are privileged. Given this prudential purpose, in camera

reviews should be encouraged, not discouraged. In that spirit,

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federal courts commonly — and appropriately — conduct such reviews

to determine whether particular documents are or are not

privileged. See id. at 569 (noting that the Court "has approved

the practice of requiring parties who seek to avoid disclosure of

documents to make the documents available for in camera inspection,

and th[is] practice is well established in the federal courts"

(internal citations omitted)); cf. In re Grand Jury Subpoenas, 123

F.3d 695, 699-700 (1st Cir. 1997) (remanding for failure to conduct

an in camera review).

When, as in this case, the assertion of privilege is

subject to legitimate dispute, the desirability of in camera review

is heightened. See United States v. Smith, 123 F.3d 140, 151 (3d

Cir. 1997). Even if the parties do not explicitly request such a

step, a district court may be well advised to conduct an in camera

review. The court below acted wisely and within the scope of its

discretion in doing so.

B. Attorney-Client Privilege.

Mr. S. next argues that the district court erred in

allocating the burden of proof vis-à-vis his claim of attorney-

client privilege. He says that the court required him to

establish, by a preponderance of the evidence, that the subpoenaed

documents fell within the ambit of the privilege and that this was

too heavy a burden because he should only have been required to

make a prima facie showing.

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 The proper quantum of proof in a situation of this kind

is fairly debatable. In this case, however, the absence of any

meaningful showing of privilege renders it unnecessary to enter

that debate.

Privilege determinations are made by the court. See Fed.

R. Evid. 104(a); United States v. Wilson, 798 F.2d 509, 512 (1st

Cir. 1986). The scope of the attorney-client privilege must be

ascertained by reference to "principles of [federal] common law as

they may be interpreted . . . in the light of reason and

experience." Fed. R. Evid. 501; see Cavallaro v. United States,

284 F.3d 236, 245 (1st Cir. 2002).

The attorney-client privilege is the most venerable of

the safeguards afforded to confidential communications and is

enshrined as such in the federal common law. See Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981). The rationale that

undergirds the privilege is easily understood: treating

communications between lawyer and client as confidential encourages

full and frank disclosure that better enables the lawyer to

represent the client and better enables the client to conform his

conduct to the law. See In re Keeper of the Records, 348 F.3d at

22. But the cloak of confidentiality has costs as well as

benefits, and courts must take care to construe this privilege

narrowly. See id.

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 In harmony with the need for narrow construction, the

case law makes manifest that the attorney-client privilege attaches

only:

(1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his
capacity as such, (3) the communications
relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his
instance permanently protected (7) from
disclosure by himself or by the legal adviser,
(8) except the protection be waived.

Cavallaro, 284 F.3d at 245 (quoting 8 J.H. Wigmore, Evidence

§ 2292, at 554 (McNaughton rev. 1961)). A failure to satisfy any

one of the enumerated elements defeats the claim of privilege. See

Wilson, 798 F.2d at 512-13.

It is clear beyond hope of contradiction that the party

seeking to invoke the attorney-client privilege must carry the

devoir of persuasion to show that it applies to a particular

communication and has not been waived. See In re Keeper of the

Records, 348 F.3d at 22. Whatever quantum of proof is necessary to

satisfy this obligation, a blanket assertion of privilege is

generally insufficient. See In re Grand Jury Proceedings, 616 F.3d

1172, 1183 (10th Cir. 2010); In re Grand Jury Matters, 751 F.2d 13,

17 n.4 (1st Cir. 1984); United States v. Lawless, 709 F.2d 485, 487

(7th Cir. 1983). Determining whether documents are privileged

demands a highly fact-specific analysis — one that most often

requires the party seeking to validate a claim of privilege to do

so document by document. In re Grand Jury Proceedings, 220 F.3d

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568, 571 (7th Cir. 2000); In re Grand Jury Matters, 751 F.2d at 17

n.4.

In the case at hand, Mr. S. has made only a blanket

assertion of privilege. He has not identified any specific

document as coming within the attorney-client privilege. On this

record, then, the quantum of proof is immaterial. Even if we

assume, favorably to Mr. S., that a prima facie standard applies,

his proffer falls short. We explain briefly.

In his motion papers, Mr. S. set forth the following

facts in support of his claim of privilege. Doe is licensed to

practice law and holds himself out as an attorney with special

expertise in real estate transactions; Mr. S. sought Doe's legal

services in connection with the real estate transaction identified

in the subpoena; Doe represented him as his lawyer in that

transaction and billed him for the related legal services; Doe

"used his client trust account" and "signed documents and

correspondence," employing the descriptor "Esquire."

These facts cannot be assessed in a vacuum but, rather,

must be viewed in light of the government's opposition and the

proffered documents. See Holifield v. United States, 909 F.2d 201,

203-05 (7th Cir. 1990) ("Any attempt to make [an attorney-client

privilege] determination without [an adequate] factual foundation

amounts to nothing more than a waste of judicial time and

resources."). Evaluated through this lens, Mr. S.'s perfunctory

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assertion of privilege is insufficient to show that the attorney-

client privilege attaches to any particular item or items

identified by the subpoena.

Mr. S.'s assertion of privilege is especially weak

because the documents listed in the subpoena — HUD statements,

closing statement, sales contract(s) and records of payment

indicating the source and type of funds used — would all have been

revealed at the closing and are, therefore, not confidential in

nature. See, e.g., In re Grand Jury Subpoena, 831 F.2d 225, 227-28

(11th Cir. 1987) (noting that the attorney-client privilege did not

apply to closing statements and purchase contracts for property

transactions because the documents "lack a confidential nature"

(citation and internal quotation marks omitted)); United States v.

Aronson, 781 F.2d 1580, 1581 (11th Cir. 1986) (per curiam) (holding

that certain documents regarding the disposition of real estate,

"which by their very nature contemplate disclosure to third parties

. . . are not within the scope of the attorney-client privilege");

United States v. McDonald, 313 F.2d 832, 833-35 (2d Cir. 1963)

(finding "no basis" for claim that the attorney-client privilege

applies to closing statements and sales contracts relating to real

estate because the "client necessarily contemplated divulging the

information requested to other parties at the closing").

In keeping with the generally non-confidential nature of

the type and kind of documents identified in the subpoena, Mr. S.'s

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motion papers contain no direct assertion that any particular

document is, or was ever intended to be, confidential. By the same

token, there is nothing in the record suggesting that the creation

of the documents involved the giving of legal advice. Not every

piece of an attorney's work product falls within the attorney-

client privilege. Where, for example, an attorney acts merely as

a scrivener — facilitating the consummation of a real estate

transaction, passing title, and disbursing funds — the documents

generated by those actions are typically not privileged.3 See,

e.g., United States v. Davis, 636 F.2d 1028, 1044 (5th Cir. Unit A

Feb. 1981) (Wisdom, J.) ("An attorney who acts as his client's

. . . agent for receipt or disbursement of money or property to or

from third parties . . . is not acting in a legal capacity, and

records of such transactions are not privileged."); Pollock v.

United States, 202 F.2d 281, 285-86 (5th Cir. 1953) (similar);

United States v. De Vasto, 52 F.2d 26, 30 (2d Cir. 1931) (similar).

So it is here. Mr. S.'s own assertions indicate that Doe

acted as a title attorney, and the documents and records submitted

3
We caution that there is no flat rule exempting all
communications between a title attorney and a client from the reach
of the attorney-client privilege. It takes little imagination to
conceive instances in which a particular communication regarding a
real estate closing may satisfy all of the requirements of the
attorney-client privilege. It is, however, the responsibility of
the individual who asserts the privilege to establish its existence
with respect to specific documents. See In re Keeper of the
Records, 348 F.3d at 22. As we already have explained, Mr. S. has
not met that requirement.

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in response to the subpoena bear out that characterization. To

cinch matters, Mr. S. provides no fact-based reason to believe that

generating the subpoenaed documents required Doe to act as more

than a mere scrivener and disburser of funds. In short, Mr. S. has

failed to make even a prima facie showing that any of the

subpoenaed documents are privileged.

C. Fifth Amendment Privilege.

"[T]he Fifth Amendment protects the person asserting the

privilege only from compelled self-incrimination." United States

v. Doe, 465 U.S. 605, 610 (1984) (emphasis in original) (citing

Fisher, 425 U.S. at 396). It is, however, settled law "that a

person may be required to produce specific documents even though

they contain incriminating assertions of fact or belief because the

creation of those documents was not 'compelled' within the meaning

of the privilege." United States v. Hubbell, 530 U.S. 27, 35-36

(2000).

The Supreme Court has declared that the act of producing

documents is protected by the Fifth Amendment when that act is both

testimonial and self-incriminating. See Fisher, 425 U.S. at 408.

Such a case may arise when an individual's compelled production of

documents would amount to a tacit concession that the documents

exist, are authentic, and are in his custody or control. See

Hubbell, 530 U.S. at 36; Fisher, 425 U.S. at 410.

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 This is not to say that the act of producing documents is

always, or even normally, privileged. Determining whether an act

of production is both testimonial and self-incriminating requires

a particularized case-by-case analysis. See Fisher, 425 U.S. at

410; Amato v. United States, 450 F.3d 46, 50 (1st Cir. 2006). And

there is a further caveat: even though the Fifth Amendment protects

against compelled acts of production that are both testimonial and

self-incriminating, this prophylaxis is limited to the individual

who is being compelled. See Couch v. United States, 409 U.S. 322,

328 (1973); see also U.S. Const. amend. V ("No person . . . shall

be compelled in any criminal case to be a witness against himself

. . . ."). In other words, the protection afforded by the Fifth

Amendment prohibits only the use of compulsion exerted against the

privilege-holder himself. Fisher, 425 U.S. at 397.

It follows that an individual's Fifth Amendment privilege

is not offended by the enforcement of process directed toward a

third party — even if that third party is his lawyer. See id.

"This is true whether or not the Amendment would have barred a

subpoena directing the [individual] to produce the documents while

they were in his hands." Id. These precedents leave no apparent

space for Mr. S. to rely on the Fifth Amendment to prevent a third

party — Doe — from producing the subpoenaed documents. See id. at

402.

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 In an effort to blunt the force of this reasoning, Mr. S.

argues that a combination of the Fifth Amendment's protection

against compelled testimonial acts and the attorney-client

privilege supplies an adequate basis to quash the subpoena. We

think not.

Mr. S.'s hybrid argument derives from Fisher, 425 U.S. at

402-05, in which the Court observed that if an individual who

enjoys a Fifth Amendment privilege against producing documents

transfers those documents to his attorney for the purpose of

securing legal advice, then the documents are protected from

compelled production by reason of the attorney-client privilege.

Mr. S. strives to persuade us that Fisher gives him the right to

prevent the subpoenaed documents from reaching the grand jury. We

are not convinced. This case simply does not fit the Fisher model.

To begin, the record does not indicate that Mr. S.

transferred any preexisting documents to Doe. Based on the

assertions made in Mr. S.'s motion papers, he approached Doe to

complete a discrete real estate transaction. For aught that

appears, Doe himself prepared the standard documents needed to

consummate the transaction, handled the closing, disbursed the

funds, and retained copies of the documents and payment records.

Ultimately, though, determining whether the subpoenaed

documents are preexisting or not is of no moment. Either way,

there is no showing that they are protected by the attorney-client

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privilege because, for reasons already explained, Mr. S. failed to

establish that any documents were tendered to Doe for the purpose

of obtaining legal advice. See Davis, 636 F.2d at 1043 ("Both

preexisting documents and documents created in the course of the

attorney-client relationship must fall within the common-law

standards for attorney-client privilege to be protected under the

Fisher test."). Mr. S. also failed to establish that the documents

(whoever crafted them) were confidential. Because there is no

showing that the attorney-client privilege attaches to any of the

subpoenaed documents, Fisher does not apply. See In re Grand Jury

(Attorney-Client Privilege), 527 F.3d 200, 201-02 (D.C. Cir. 2008).

Given this reality, it does not matter whether or not Mr. S. would

have had a Fifth Amendment privilege to withhold the documents if

they were in his possession. See id.; In re Sealed Case, 162 F.3d

670, 675 (D.C. Cir. 1998).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the district court's denial of the motion to quash.

Affirmed.

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 Appendix

1. Records of payments and fund disbursements.

2. Deed.

3. Settlement statement.

4. Property tax declaration and disclaimer.

5. Notice of Title Insurance Availability.

6. Transmittal note indicating proper name to insert in all
real estate documents, selling price, and purchaser's address.

7. Certificate of Authenticity.

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