In re Grand Jury Subpoena Directing Taylor

KAUFMAN, Chief Judge

(concurring):

I wholeheartedly concur in my brother Anderson’s view that the Government’s motion to disqualify Mr. Erlbaum, and the court’s order prohibiting the appellant from retaining his services, are premature. In my view, it is highly significant that the appellant has not yet been offered immunity in exchange for his testimony pursuant to 18 U.S.C. § 6002. My brother Anderson appropriately indicates it is only when this stage in the grand jury proceedings has been reached, that the issue of Mr. Erl-baum’s conflict of interest will be ripe for adjudication. See Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009 (3d Cir. 1976); In re Investigation Before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 531 F.2d 600 (1976).

I do not, however, join in Judge Anderson’s excellent homily on prosecutorial secrecy and its dangers. My reason is simple. Where an issue is not ripe for review, we should not prejudice cases yet to be brought. We do not know what a new complaint, if and when brought, might allege: the factual averments may be quite different and will surely involve supervening circumstances. Hence, while my brother’s zeal to right the wrongs of in camera proceedings is entirely commendable, I believe it would be the better part of wisdom not to offer his advisory opinion on an issue of such great importance.