dissenting:
With regret, I find myself unable to concur in the careful opinion of my Brother Politz, though in fairness I must acknowledge that the opinion presents an arguable position about as well as that position could be put. The issues that we face today require us to strike a balance between two considerations of fundamental value: the citizen’s right to seek advice of counsel regarding his past misdeeds and the legitimate interest of the state in ferreting out criminals. For two reasons, one tiny and peculiar to this case and another of far more universal application, I am driven to the view that my colleagues have struck this balance wrong. I place the minor reason in the margin, where it belongs.1
For the reasons stated in note 1, I do not believe that Mr. Pavlick made a showing sufficient to establish the existence of an attorney-client relationship between himself and the defendants’ unknown benefactor. Even assuming arguendo, however, that Pavlick could have established such a relationship, I conclude that the facts of this case are not such as to permit an assertion of that privilege. Both the majority and the court below rely heavily on In re Grand Jury Proceedings (United States v. Jones), 517 F.2d 666 (5th Cir. 1975), which created a limited and narrow exception to the general rule that a client’s identity is not protected by the privilege. In Jones an attorney was not required to reveal to a grand jury the identity of one who paid legal fees and furnished bonds for clients charged with narcotics offenses where that disclosure would have supplemented already existing and incriminating evidence likely to lead to the indictment of the payor.2
*1063Jones does not, however, stand for the proposition that the identity of a client is always privileged where its disclosure could incriminate him.3 Rather, his identity is protected “when so much of the substance of the communication is already in the government’s possession that additional disclosures would yield substantially probative links in an existing chain of inculpatory events or transactions.” Id. at 674. The government in the instant case consistently stated that it possessed no information concerning the payor of the fees and was unsure if the identity of the payor would necessarily lead to an indictment — no existing chain of inculpatory events or transactions was present.4
Since this important aspect of Jones is missing here, I would look instead to the Ninth Circuit case of United States v. Hodge & Zweig, 548 F.2d 1347 (9th Cir. 1977), which more closely resembles the matter in hand. There the Internal Revenue Service sought disclosure of payments made by a third person on behalf of an attorney’s clients. The court held that once the government made a prima facie showing that the attorney was retained in order to promote intended or continuing criminal or fraudulent activity, the privilege could not be asserted. See Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); United States v. Friedman, 445 F.2d 1076, 1086 (9th Cir. 1971), cert. denied sub nom. Jacobs v. U. S., 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971). In Hodge & Zweig, as here, the government made such a prima facie showing by presenting evidence that an integral part of the conspiracy was the agreement by participants to furnish bail and legal expenses for conspirators who were apprehended by law enforcement officials. Thus, though the appellate court determined that the existence of the privilege was established, it refused to countenance its assertion:
Our inquiry is not at an end, however. Because the attorney-client privilege is not to be used as a cloak for illegal or fraudulent behavior, it is well established that the privilege does not apply where legal representation was secured in furtherance of intended, or present, continuing illegality. United States v. Friedman, 445 F.2d 1076, 1086 (9th Cir. 1971); see Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, [469] 77 L.Ed. 993 (1933); O'Rourke v. Darbishire, [1920] A.C. 581, 604 (Eng.) (per Viscount Finlay); 8 J. Wigmore, supra, § 2298. The crime or fraud exception applies even where the attorney is completely unaware that his advice is sought in furtherance of such an improper purpose. United States v. Friedman, 445 F.2d at 1086; see Clark v. *1064United States, 289 U.S. at 15, 53 S.Ct. 465, [at 469].
.... The guilty pleas further demonstrate that as an integral part of the conspiracy the participants agreed to furnish bail and legal expenses for conspirators who might be apprehended by law enforcement officials. Presumably, such an agreement was designed to hinder any criminal drug prosecution arising out of the conspiracy; as such, the agreement constituted part of the consideration for engaging in the conspiratorial activity.
In light of the above, we conclude that a prima facie case exists that payments to appellants, if any, made during the years 1970, 1971, and 1972 by and on behalf of Sandino were made pursuant to the conspiratorial agreement and thus in furtherance of the continuing drug conspiracy. We therefore hold that disclosure of the information requested in the IRS summons is required.
Hodge & Zweig, 548 F.2d at 1354-55 (footnote omitted).
It seems to me that, both from the standpoint of policy and that of logic, this says it all and says it correctly. To permit promised legal services to be used as bargaining counters — counters by which persons are induced to enter into concerted illegal activity — by drawing the cloak of the attorney-client privilege over such arrangements seems to me a result so egregiously undesirable that it should not be arrived at unless inexorably compelled by law or logic. I do not see that it is.
The promise of free legal services made here was no more than a fringe benefit for prospective drug smugglers, one of the agreements upon which a conspiracy was founded. When made, it necessarily contemplated that it could be performed only after its beneficiaries were hors de combat. Even so, like a future interest, it had a present value when received, but one that would have been destroyed had it not been made good. Thus, carrying out the promise was necessary to redeem its value and to maintain the value of like outstanding or future promises. In these circumstances, it seems to me inescapable that the act of procuring bail and counsel was an act carried out in furtherance of the conspiracy itself. Even if it be assumed that the smuggling portion of the conspiracy was over when performance of this promise occurred, this is still true, just as it would be true had the benefactor been apprehended while delivering to them any other portion of the benefits derived from the conspiracy by defendants. As an act of material importance to the criminal enterprise, performing the promise was a part of that enterprise. And as such, it no more merits shielding than any other criminal act in which a lawyer participates, however innocently.
Lawyers are not permitted to use their skills in furthering crimes. The transaction by which Mr. Pavlick’s were bartered away, in advance and at a time when the prospective crime was in contemplation, seems to me to stand on no materially different footing and no more to deserve a cloak of secrecy than would a transaction in which advice was sought about a contemplated crime for use in planning it. That this is unprotected, even by a valid claim of privilege, is too firmly established to require citation of authority.
Nor does the logic of protecting the precious right of representation compel such a result. The case in hand is distinguished by the pre-existing promise, given to induce criminal activity. One who makes no such criminal promise would have nothing to fear from the rule, of Hodge & Zweig that I would follow: he who makes promises of legal representation to induce others to engage in criminal activities may not cloak the transaction by which he redeems those promises in the attorney-client privilege, at least as to his identity,5 by establishing a professional relationship with the attorney consulted. After third persons have run afoul of the law, without another having *1065induced it by such a promise, he may contribute what he likes to their defense — and, should he for some reason choose to seek legal advice at the same time from the same lawyer on the same subject — his identity will, in appropriate Jones circumstances, be protected.
No more than such a rule is required to safeguard any legitimate claim of privilege; no less can be countenanced if a criminal trafficking in legal services is to be avoided. Since I think such a result should be avoided if possible, and since it can be avoided without significant inroad on any legitimate claim of privilege, I respectfully dissent.
ON REHEARING AND REHEARING EN BANC
Before BROWN, CHARLES CLARK, GEE, RUBIN, GARZA, REAVLEY, POLITZ, RANDALL, TATE, SAM D. JOHNSON, WILLIAMS and GARWOOD, Circuit Judges.BY THE COURT:
A member of this Administrative Unit of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in this Administrative Unit in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the cause shall be reheard by this Administrative Unit of the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. The majority opinion turns on an initial assumption of fact: that the unknown benefactor of these confessed drug smugglers was presented by the record as a client of Mr. Pavlick, one concerned about his possible criminal liability in consulting Mr. Pavlick. Coming from one who bore the burden of proof to demonstrate the existence of an attorney-client relationship, United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978), Mr. Pavlick’s testimony on the point is meager and vague: as the majority opinion accurately notes (page 1059 Note 2), the court inquired:
“Q: You were retained by somebody who told you to represent these people?
A: (Mr. Pavlick) And him (X, necessarily the somebody mentioned) and someone [else] who was also worried about his own culpability.” (All emphasis added.)
In my view, this fragment from Mr. Pavlick’s testimony — the sole relevant one — does not carry his burden. He is asked whether he was retained by “somebody [X] who told you to represent these people?” Pavlick (a lawyer) responds, “And him (X) and somebody (Y) who was also worried about his own culpability.”
If Mr. Pavlick does not know how to choose his words, he does not belong in his profession. We are entitled to assume that he meant precisely what he said. What he said is subject to at least three interpretations, only one of which is consistent with treating X as Mr. Pavlick’s client. One is that Y was “also” — like the three actual defendants whom X retained Pavlick to represent — worried, as were they, about his own criminal liability. Another is that Y, in addition to wishing the three defendants to have legal representation, was “also” concerned about his own exposure. The final and, in my view, most unlikely one is that Y, like X, was concerned about personal liability. It is only this last reading that furnishes support for the conclusion that X was Pavlick’s client.
It seems to me that such a vague and ambiguous assertion furnishes little or no support for the ruling of the trial court. Speaking of the burden to be carried by one asserting this privilege, a sister circuit has observed:
That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.
In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965). Mr. Pavlick’s assertion as to his relationship with X falls short of being even an unambiguous conclusory one.
. Finally, the prosecutor had already presented to the district court that the government possessed “information” about certain individuals who had paid out money to attorneys in excess of reported income.... Disclosure by the relators of the unidentified “patrons’ ” names would be directly relevant to corroborating or supplementing already-existent incriminating information about certain persons suspected of income tax offenses, regardless of those persons’ possible complicity in marijuana traffic. ... In any event, the income tax aspects of the government’s inquiry demonstrate a strong independent motive for why the unidentified clients could be expected to (1) seek legal advice, and (2) reasonably anticipate that their names would be kept confidential.
*1063Jones, 517 F.2d at 674.
. “[OJur decision should not be taken as any indication of how we would decide a similar question if the inculpatory value of sought-after testimony were less obvious or largely attenuated.” Id. at 675.
. MR. FONSECA (Attorney for the government): The persons who were represented in this court were involved in a dope case. The government is seeking information about who paid the fees. The government apparently was looking for who paid the fees in an apparent on-going tax investigation concerning certain people who they have identified and they had the tax returns. And, they simply were going to get the attorneys to say how much and — and, was this the person who paid you. His tax return doesn’t reflect that he had the money to pay you; therefore, we have the evidence now that he is involved in a crime.
In this case, I have no information as to who paid Mr. Pavlick these fees. This man may not be involved in the conspiracy, the person who paid him, you know, he may not be involved in the conspiracy of the three convicted defendants. There is a strong possibility that he was involved; otherwise, they would not have placed himself in a position of seeking legal representation for these three individuals and for paying their fees. But, all we are obtaining is this person’s name, just obtaining his name would not give us, necessarily the evidence to indict that person as was the case in the Jones case. The mere identification of the defendant, of itself, of the person paying the money, of itself, would give the government a tax case in the Jones case, because they already had the fees, and all they needed was the name. THE COURT: It might well give you a conspiracy case in this matter.
MR. FONSECA: It might lead to it.
(emphasis added).
. We need go no further than this today, since ho more is presented by the facts of the case.