dissenting:
Regrettably, I find myself unable to concur in the principal proposition for which the majority panel opinion stands. Despite a single decision in the Third Circuit Court of Appeals, In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir. 1973), to the contrary, it appears well established by authority, and on reflection well grounded in principle, that the grand jury should be free to subpoena without preliminarily, on a generalized basis, being required to justify the relevance and necessity of its action.1 Citizenship confers many benefits. It also imputes certain responsibilities, one of which is to aid the government’s search for information. It is sufficiently more likely than not that the search will be for relevant information properly disclosable to relieve the grand jury and government prosecutors of a requirement, applicable in every case, that they first establish probable cause. See, e.g., In re Grand Jury Investigation (McLean), 565 F.2d 318, 320 (5th Cir. 1977) (“In the absence of any witness asserting harassment or prosecutorial misuse of the system, we will not impose upon the government or the district courts any preliminary requirements which would impede the grand jury’s investigative powers.”); In re Grand Jury Proceedings (Hergenroeder), *1013555 F.2d 686, 686 (9th Cir. 1977) (“In view of the presumption that the government obeys the law, we see no reason to inject into routine grand jury investigations the delay and imposition upon district courts that will be opened up by a rule institutionalizing these disclaiming affidavits.”).
That is, emphatically, not to say that, where the prospective witness in fact assumes the burdens of going forward and of persuasion and establishes prima facie that the testimony should not be compelled, the evidence nevertheless must be produced. It all comes down to the choice as to which way the presumption should run. I cannot accept a blanket presumption of irregularity, and the resulting rule that proof of probable cause must precede production of any evidence subpoenaed by the grand jury.
Of course, the members of the panel majority purport to restrict the decision to the case before us, one in which the subpoena issues to counsel for someone who is a target of grand jury inquiry. However, once such a doctrine is accepted with respect to lawyers, it will not be long before well-founded notions of equality will require the extension to all persons of a doctrine which is ill-conceived even if limited to attorneys. It does not do to speak with pride of equality under the law, at the same time creating a preferential or “ennobled” status for lawyers.
Here we are confronted with payments and receipts of a lawyer in connection with his representation of the grand jury’s target, Leon Harvey. The government foolishly, from a strategic point of view, has sought to conceal the objectives for the subpoena, and it may well be that the district judge may have occasion to conclude that the prospective witness has carried the requisite burden to show that the subpoena, considered on an item-by-item or category-by-category basis, should be quashed, in whole or in part. However, it is in the trial court and not at the appellate level that factual issues pertinent to inquiries of that type should be resolved. I humbly suggest that we make a bad mistake, invading the province of the district court, in establishing a blanket rule that the burden of showing good cause must generally be met by the government before it can ever subpoena a lawyer who has an on-going representational relationship with a grand jury target.
At the present stage, Harvey’s attorney stands in the same shoes as a banker or stockbroker whose ledger of ordinary business transactions is subpoenaed. Simply by maintaining a ledger to record transactions, an attorney has not, under the general rule, engaged in privileged communications. Rather, the communications are privileged only “where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought.” United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977). See also, e.g., In re Grand Jury Proceedings (Jones), 517 F.2d 666, 672 (5th Cir. 1975); In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). Since no showing has been made that disclosure of the documents would implicate the client in “the very criminal activity for which legal advice was sought,” the documents are no different than ledger sheets of a banker or stockbroker. If the attorney, like any other grand jury witness, shows that the materials are privileged, or overcomes the grand jury’s presumption of regularity, then he is entitled to have the subpoena quashed.
To me it simply distorts the concept of the democratic process to put the lawyer in a separate category, and free him of a responsibility which must be assumed by other citizens. The argument that the relationship with the client in and of itself is so tender that to require him to produce the subpoenaed materials would unduly risk dilution of the attorney-client privilege and of the right of an accused to have the assistance of counsel for his defense has a hollow ring. A client who loses faith in his lawyer because the lawyer complies with the law, as a banker or a stockbroker must comply with the law, has adopted an unreasonable stance.
*1014If the burden is on the witness, as I submit it should be, we should not quash the subpoena, but rather we should affirm the district court’s action, by which it carefully left available to the reluctant witness the opportunity, with respect to each document or category of documents, to assert a privilege, to put forward the grounds supporting the privilege, and to obtain a ruling from the district court before any compulsion to turn over the document or documents becomes effective. Assuming the district court concludes that production of the material should not be compelled, no problem 'exists. If, however, the district court determines that the material should be disclosed, there is available an immediate appeal pursuant to 28 U.S.C. § 1826(b),2 and, where appropriate, a stay of incarceration, should the prospective witness elect to stand on his position and to draw a contempt citation.3
The panel majority’s concern that the government is overstepping its bounds can be assuaged without fundamentally altering the burdens in grand jury proceedings. At an enforcement proceeding, a district judge should feel free to conduct in camera hearings where necessary to elicit information. Specifically, in order to determine the nature of the investigation he may wish to hear testimony from the Assistant United States Attorney regarding the matter. Fed.R.Crim.P. 6(e)(3)(C)(i) specifically permits disclosure of matters occurring before a grand jury “when so directed by a court preliminary to or in connection with a judicial proceedings,” and provides:
If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.
Moreover, courts have long held that in camera hearings are an appropriate and efficacious means of resolving disputed issues of privilege. Kerr v. United States, 426 U.S. 394, 405-06, 96 S.Ct. 2119, 2125, 48 L.Ed.2d 725 (1976); McLawhorn v. North Carolina, 484 F.2d 1, 5-6 n.13 (4th Cir. 1973); Halkin v. Helms, 598 F.2d 1, 5-7 (D.C.Cir.1978). Stonewalling by the government in those proceedings might properly be considered by the district court in ruling on the claim of privilege.
*1015In sum, my disagreement is not with the majority’s zealous concern for the interests which adhere to the attorney-client relationship. Rather, I do not believe it necessary to depart radically from settled grand jury procedures. Therefore I dissent.
. E.g., In re Special February 1975 Grand Jury (Lopez), 565 F.2d 407, 411 (7th Cir. 1977) (“A grand jury is not under a duty to disclose reasons for the information it seeks.”); In re Berry, 521 F.2d 179, 184 (10th Cir. 1975), cert. denied, 423 U.S. 928, 96 S.Ct. 276, 46 L.Ed.2d 256 (1975) (“Relevancy and materiality are not pertinent to subpoena enforcement.”).
. 28 U.S.C. § 1826(b) provides in part:
Any appeal from an order of confinement under this section [governing recalcitrant grand jury witnesses] shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal.
. Appellant and amici curiae express concern that a lawyer should be compelled to risk contempt and incarceration for a client and, on the other side of the coin, concern for the client whose lawyer, not confident of'the validity of the position or unwilling in any event to languish in durance vile, proceeds to comply with the subpoena over the protest of the client. The problem may well, however, be more apparent than real. Leon Harvey has himself intervened. It is well within the scope of alternatives available to the district judge, should he find a claim of privilege as to a particular document or group of documents invalid, for him to summon Leon Harvey to appear before him, to direct Harvey to order the lawyer to turn over the materials, and to find Harvey, rather than the lawyer, in contempt for failing to do so.
In a post-briefing and post-argument communication, an Assistant U. S. Attorney has indicated that Mr. Harvey may have disappeared, making that alternative unworkable. Assuming that to be the case, and further assuming that he cannot be located and persuaded or compelled to appear before the district court, obviously at some point a lawyer is free to determine how much he is required not merely to represent a client to the best of his ability but to substitute himself for- a client not willing himself to sustain the contempt citation necessary to have the issue reviewed by the appellate court.
Moreover, the actuality of severe inconvenience to the lawyer is magnified unduly. Whenever the order of a district court is appealed, and the correctness of the ruling of the district court appears to be substantially in doubt, a stay of incarceration granted either by the district judge or by us pending appeal is available. Cf. 28 U.S.C. § 1826(b); In re Grand Jury Proceedings (Horak), 625 F.2d 767 (8th Cir. 1980), cert. denied, 449 U.S. 840, 101 S.Ct. 117, 66 L.Ed.2d 47 (1980).
I simply am not impressed by the claimed plight of a lawyer, whose client leaves the field of battle demanding that the lawyer remain to defend him, and who then chooses to accept a contempt citation and to go to jail where the prospects of success on appeal are too slight to justify a stay pending resolution on appeal.