dissenting.
The grand jury investigation out of which this case arises is about as serious as any that are undertaken in the federal courts. A grand jury sitting in the Eastern District of New York is investigating the activities of a criminal enterprise known as the Colombo organized crime “family” and a faction of that family headed by Anthony Colombo known as the “Anthony Colombo crew”. The record before us shows that the activities of this crew under investigation by the grand jury include the crimes of murder, racketeering, narcotics trafficking, robbery, gambling, extortion, interstate transportation of stolen property and other federal crimes. The district court, Eugene H. Nickerson, District Judge, entered an order denying the motion by appellant Anthony Colombo (Richard Roe) to quash a grand jury subpoena duces tecum served on appellant’s attorney, Barry Slotnick, Esq. (John Doe). The majority today vacates that order. I dissent.1
Appellant (Richard Roe) asserts that his right to due process and his right to retain counsel of his choice under the Sixth Amendment will be impaired by enforcement of the grand jury subpoena duces tecum served upon his attorney of seventeen years (John Doe) who presently is representing him before the grand jury. Neither the Fifth nor the Sixth Amendment is applicable here. As an unindicted target of the grand jury investigation, appellant has no Sixth Amendment right to counsel at this stage. There is no independent right to counsel under the due process clause of the Fifth Amendment. Where no constitutional rights have attached, the Supreme Court has declined to impose any requirement upon the government prior to its enforcement of a grand jury subpoena. Even accepting the majority’s contention that constitutional rights are somehow “implicated” here, a balancing of the interests involved requires that we forego imposing requirements so stringent that they will interfere unacceptably with the grand jury’s constitutionally mandated task of investigating alleged crimes, while protecting persons, concerning whom it has heard accusations, from being unfairly prosecuted.
Both parties agree that if Doe gives incriminating evidence against his client to the grand jury, he will be disqualified from representing him in any criminal prosecution that may result from the grand jury’s investigation. Appellant concedes that the information sought is not protected by the attorney-client privilege. He urges us, however, to protect his future potential *978constitutional right to retain counsel of his choice by requiring the government, before it can enforce the grand jury subpoena served on his attorney, to show that the information sought is necessary for the successful conclusion of the government’s case, and that Doe is the only available source of the information sought.
The majority adopts a test that requires the government, prior to enforcement of a ' grand jury subpoena served on counsel for an unindicted target of a grand jury investigation, to show that “there is a need for [the information] that cannot reasonably be met in some other fashion”. While this test is not as stringent as the one appellant proposes, it is inappropriate under the circumstances. This case does not compel us to establish new procedural safeguards for the attorney-client relationship — whether on constitutional grounds, as the majority holds, or in the exercise of our federal supervisory power, as the court held in In re Special Grand Jury No. 81-1 (Leon D. Harvey), 676 F.2d 1005 (4 Cir.), vacated and withdrawn when grand jury indicted target and he became fugitive, 697 F.2d 112 (4 Cir.1982) (en banc) [hereinafter Harvey\. The majority here places heavy reliance on Harvey.2
Since, for the reasons stated more fully below, I find no sound basis for the majority’s decision, I would affirm the order of the district court. From the majority's refusal to do so, I respectfully but emphatically dissent.
I.
There is no constitutional basis for establishing new requirements for the government to meet in order to enforce the grand jury subpoena involved in this case.
A.
The Sixth Amendment does not require a preliminary showing for enforcement of a grand jury subpoena of an attorney whose client is an unindicted target of a grand jury investigation. The Sixth Amendment provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. The Sixth Amendment right to counsel “at*979taches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality opinion). In Kirby, the Court refused to “import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings.” Id. at 690 (emphasis added). The Court explained that
“[t]he initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.”
Id. at 689-90.
We have followed the Supreme Court in holding that “[a] person comes under the protection of the sixth and fourteenth amendment right to counsel from the moment judicial proceedings are initiated against him, ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Carney n. LeFenre, 611 F.2d 19, 21 (2 Cir.1979), cert. denied, 446 U.S. 921 (1980), quoting Kirby v. Illinois, supra, 406 U.S at 689; see also United States v. Mohabir, 624 F.2d 1140, 1146-49 (2 Cir.1980).3 We have further held that, during the grand jury investigation of an unindicted target, the Sixth Amendment right to counsel does not attach. United States v. Vasquez, 675 F.2d 16, 17 (2 Cir.1982) (per curiam); see also United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion; dictum); in re Groban, 352 U.S. 330, 333 (1957) (dictum). Since adversary judicial proceedings have not been initiated against appellant in the instant case, his Sixth Amendment right to counsel has not attached, and his interest in continuing to be represented by his present counsel is not of constitutional dimensions.
The Supreme Court has made clear that, when a grand jury subpoena does not infringe upon a constitutionally protected interest, there is no reason to require a preliminary showing before allowing the government to enforce the subpoena. United States v. Dionisio, 410 U.S. 1, 16 (1973). Since appellant’s Sixth Amendment right to counsel has not attached, there is no merit to his contention that the Constitution requires any greater showing to be made in order to enforce this grand jury subpoena than to enforce any other.4
*980B.
Nor does the Fifth Amendment require a preliminary showing prior to enforcement of a grand jury subpoena served on counsel for an unindicted target of a grand jury investigation. The Sixth Amendment right to assistance of counsel is “of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ ”, Powell v. Alabama, 287 U.S. 45, 67 (1932), quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926), and therefore necessarily is included in the concept of due process of law. Powell v. Alabama, supra; Gideon v. Wainwright, 372 U.S. 335 (1963). Powell v. Alabama and Gideon v. Wainwright made the Sixth Amendment right to counsel applicable to the states through the due process clause of the Fourteenth Amendment. The Supreme Court also has held that the Fourteenth Amendment due process clause guarantees a criminal defendant a fair opportunity to obtain the assistance of counsel of his choice to prepare and conduct his defense, but that not every denial of a request for a continuance in order to do so is so arbitrary as to violate due process. Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964); Chandler v. Fretag, 348 U.S. 3, 10 (1954). Inadequate assistance of counsel also may be challenged as a violation of a defendant’s Sixth Amendment right to counsel, as made applicable to the states through the due process clause of the Fourteenth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 342-45 (1980). While violations of an accused’s right to counsel are encompassed within the concept of due process, the due process clauses neither expand nor contract the constitutional protection provided by the Sixth Amendment right to counsel.
The majority, however, holds that the right to be represented by counsel of one’s choice “arises not only from the sixth amendment but also the due process clause of the fifth amendment” (emphasis added).5 As support for this proposition, it cites United States v. Flanagan, 679 F.2d 1072, 1075 (3 Cir.1982), rev’d on other grounds, 104 S.Ct. 1051 (1984), and Davis v. Stamler, 650 F.2d 477, 479-80 (3 Cir.1981). Flanagan contains a statement to the effect that a defendant’s decision to select a particular attorney is afforded some protection by the Sixth Amendment and by the due process clause of the Fifth Amendment, citing Davis v. Stamler. Without any reference to the Fifth Amendment, the court in Davis v. Stamler stated that “[t]he right to counsel of one’s choice also derives from the due process clause”, id. at 480, citing United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3 Cir.1969), cert. denied, 397 U.S. 946 (1970). Carey held that the Sixth and Fourteenth Amendments require that an accused be afforded a fair and reasonable opportunity to obtain counsel of his choice. Id. at 1211, 1215. Presumably, the court in Davis v. Stamler also was referring to the due process clause of the Fourteenth Amendment since that case concerned a state criminal defendant, and the court cited Carey as support for its statement. This, however, leaves United States v. Flanagan with no support for its proposition that the due process clause of the Fifth Amendment protects a defendant’s decision to retain particular counsel. It would appear that any protection of the right to counsel afforded by the due process clause of the Fifth Amendment is superfluous in federal criminal proceedings.
What is cause for more serious concern here, however, is the complete lack of support for the majority’s contention that the right to be represented by counsel of one’s choice “arises” from both the express provision of the Sixth Amendment, and the Fifth Amendment due process clause. *981While the Supreme Court has stated that the right to counsel is encompassed by the concept of due process, and that certain limitations on the right to counsel violate due process, it has not indicated that a separate Fifth Amendment due process clause right to counsel exists independent of the Sixth Amendment right to counsel, and at times when the Sixth Amendment right has not even attached. Yet this is what the majority would have us believe.
The majority cites no authority to support its contention that, if the Sixth Amendment right to counsel has not attached, then there still exists a Fifth Amendment due process clause right to counsel of one’s choice. The reference to Kirby v. Illinois, supra, 406 U.S. 682, fails to bolster its position. In Kirby, the Supreme Court, after holding that there was no Sixth Amendment right to counsel where no judicial criminal proceedings had been initiated, and no Fifth Amendment (Miranda) right to counsel where no compulsory self-incrimination was involved, stated that it would leave open the possibility that the “lineup [could have been so] unnecessarily suggestive and conducive to the irreparable mistaken identification” as to violate due process. Id. at 691. There is nothing in Kirby to suggest that, although no right to counsel had attached under the Sixth Amendment, or the Fifth Amendment privilege against incrimination, there still might be a right to counsel under the Fifth Amendment due process clause.
Nor will Harvey, supra, 676 F.2d 1005, support such a proposition. Harvey, like the instant case, involved a subpoena served on counsel for an unindicted grant jury target. The court in Harvey found that “[t]he interests in maintaining a proper attorney-client relationship and protecting the confidences of that relationship are similar to the sixth amendment right to effective assistance of counsel and fundamental to our adversarial system of justice.” Id. at 1010. It stated, however, that
“[w]e do not hold that the sixth amendment requires a preliminary showing in this case. We do hold, however, that in exercise of our supervisory power over federal grand jury proceedings in this circuit, the preliminary showing described is appropriate to protect a person’s interest in maintaining a proper attorney-client relationship.”
Id. at 1012. Thus, the Fourth Circuit chose to rely on its supervisory power to reach a result not constitutionally required in this situation. Unlike the Fourth Circuit, the majority today holds that a preliminary showing is constitutionally mandated. With no basis for doing so, it attempts to create a new constitutional right to counsel under the general language of the due process clause of the Fifth Amendment, a right clearly exceeding the time frame defined in Kirby v. Illinois, supra, for the specific provision of the Sixth Amendment that throughout our history has been the source of the right to counsel.6 Such judicial innovation is incompatible with long settled law and should not be countenanced. The harm caused by such judicial innovation is further compounded in this case since there is no justification for the burdens the majority seeks to impose upon the grand jury process.
II.
There is no statutory or common law privilege protecting the information the grand jury seeks to have disclosed in this case. The subpoena requires Doe to appear before the grand jury and produce records of any monies or property transferred to him, or to any of his associates on his behalf, by, or for, twenty-one named individuals. The government states that it seeks the information regarding fees and client identity as evidence of (1) money or other property which may have been derived from criminal activity, and (2) a criminal enterprise and appellant’s position as *982head of that enterprise. The government claims that evidence that appellant, as “benefactor”, paid for or otherwise arranged for legal representation for members of this criminal enterprise who were apprehended during the course of illegal activity is needed to determine whether appellant should be indicted for his activities as head of a criminal enterprise.
We consistently have held that, absent special circumstances, client identity and fee information are not privileged. E.g., In re Shargel, 742 F.2d 61, 62 (2 Cir.1984); Colton v. United States, 306 F.2d 633, 637-38 (2 Cir.1962), cert. denied, 371 U.S. 951 (1963); United States v. Pape, 144 F.2d 778, 782 (2 Cir.), cert. denied, 323 U.S. 752 (1944). “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative____” Supreme Court Standard 503 — Lawyer-Client Privilege. To be privileged, the communication must be confidential, and it must be necessary to obtain informed legal advice for the client. Fisher v. United States, 425 U.S. 391, 403 (1976). While consultation with an attorney, and payment of a fee, may be necessary to obtain legal advice, their disclosure does not inhibit the communication necessary for an attorney to act effectively, justly, and expeditiously. For this reason, absent special circumstances not present here, disclosure of fee information and client identity is not privileged even though it might incriminate the client. In re Shargel, supra, 742 F.2d at 63. Fee information may be sought as evidence of unexplained wealth which may have been derived from criminal activity, and information that fees were paid either by other clients or by third persons may be sought to determine the identity of a benefactor. Id. at 63-64. As a general rule, and specifically in this case, such information is not protected from disclosure by the attorney-client privilege.
III.
There is no policy basis for adopting the majority’s requirement that the government make a preliminary showing of relevancy and need in order to enforce a grand jury subpoena served on an attorney whose client is an unindicted target of a grand jury investigation.
A.
The Fifth Amendment guarantees in part that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury____” U.S. Const, amend. V. “The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law.” United States v. Mandujano, supra, 425 U.S. at 571. Historically, it has been viewed as “a basic guarantee of individual liberty”, and it “continues to function as a barrier to reckless or unfounded charges.” Id. Grand jury proceedings serve not only an investigative function of determining whether an indictment should be returned, but also the protective function of securing persons “against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.” Id.
The investigative powers of the grand jury are broad so that it may carry out adequately its task of determining the existence of criminal activity and returning well-founded indictments. Branzburg v. Hayes, 408 U.S. 665, 688 (1972). The grand jury is authorized to subpoena witnesses and to require the production of evidence.
“Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings.”
*983Id. at 688 (citations omitted). Every person within the jurisdiction of the government has an obligation to appear and give his evidence before the grand jury. United States v. Dionisio, supra, 410 U.S. at 9-10.
“A grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed____” United States v. Stone, 429 F.2d 138, 140 (2 Cir.1970). It is part of the grand jury’s function of protecting persons against arbitrary or unfair action to call before it persons suspected of criminal activity, and “persons suspected of no misconduct but who may be able to provide links in a chain of evidence relating to criminal conduct of others”. United States v. Mandujano, supra, 425 U.S. at 573. “It is entirely appropriate — indeed imperative — to summon individuals who may be able to illuminate the shadowy precincts of corruption and crime.” Id.
B.
The majority’s creation of a new requirement to be complied with by the government before it may enforce a grand jury subpoena can be justified only if the information sought is protected by a constitutional, common law, or statutory privilege.7 See Branzburg v. Hayes, supra, 408 U.S. at 688.
“Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws. The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor, but if it is even to approach the proper performance of its constitutional mission, it must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.”
United States v. Dionisio, supra, 410 U.S. at 17-18 (citations omitted). Where, as here, appellant raises no valid constitutional claim, nor statutory privilege, “there is no more reason to require a preliminary showing ... than there would be in the case of any witness who, despite the lack of any constitutional or statutory privilege, declined to answer a question or comply with a grand jury request.” Id. at 16. Such interference with grand jury proceedings is not justified by the Constitution or case law. Further, the Supreme Court has noted with disapproval the delays caused by requiring the government to make a preliminary showing of need, and unavailability of other sources, before it can enforce a grand jury subpoena. Id. at 17 n. 16.
Even where constitutional rights are involved, the Supreme Court has been reluctant to create constitutional exemptions to the duty to appear before the grand jury and furnish relevant information, or to require preliminary showings to be made before persons claiming an infringement of their constitutional rights can be compelled to testify. See, e.g., Branzburg v. Hayes, supra, 408 U.S. at 690, 708.
In Branzburg, the Supreme Court recognized that news gathering qualified for First Amendment protection, but it held that reporters were nevertheless obligated to appear before the grand jury as other citizens do and answer questions regarding a criminal investigation, including informa*984tion received in confidence. Id. at 681-82, 708-09. The Court stated that
“[f]air and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.
This conclusion itself involves no restraint on what newspapers may publish or on the type or quality of information reporters may seek to acquire, nor does it threaten the vast bulk of confidential relationships between reporters and their sources. Grand juries address themselves to the issues of whether crimes have been committed and who committed them. Only where news sources themselves are implicated in crime or possess information relevant to the grand jury’s task need they or the reporter be concerned about grand jury subpoenas.”
Id. at 690-91.
The same reasoning would be equally applicable here if appellant’s Sixth Amendment right to retain counsel of his choice had attached. A balancing of the asserted interests demonstrates that the obligation of appellant’s attorney to appear before the grand jury and testify outweighs appellant’s asserted constitutional right. The right to retain counsel of one’s choice is not absolute, and “must give way when required by the fair and proper administration of justice.” United States v. Ostrer, 597 F.2d 337, 341 (2 Cir.1979). The burden imposed on Sixth Amendment rights by the potential disqualification of counsel for grand jury targets is speculative.8 It is only in those cases where an attorney possesses information relevant to the grand jury’s task that a subpoena would potentially interfere with a client’s right to retain that particular attorney at a subsequent ensuing trial. As we stated in In re Shargel, supra, 742 F.2d at 64, creating even a statutory testimonial privilege for fee information and client identity “would create unnecessary but considerable temptations to use lawyers as conduits of information or of commodities necessary to criminal schemes or as launderers of money.” Since an attorney may not accept compensation for his legal services from someone other than his client without full disclosure of the implications of the relationship, a scenario in which the payor is the benefactor of the members of a criminal enterprise, the payor later is indicted for his activities, and the attorney is called upon to be a witness at trial, thus causing his disqualification as trial counsel, is something that can be disclosed at the time the attorney discusses accepting payment. See Model Code of Professional Responsibility, DR 5-107, EC 5-21, 5-22.9 In light of the *985undesirable effects a testimonial privilege would have on the criminal defense bar, and the speculative nature of the burden of requiring an attorney to testify, on the Sixth Amendment right to retain counsel of one’s choice — a right which is by no means absolute — it is not plausible to argue that the asserted constitutional right outweighs the importance of the effective operation of the grand jury as an instrument for justice and effective law enforcement.
While involuntary disqualification of an attorney interferes with an accused’s constitutional right to retain counsel of his choice, courts have the power and duty to disqualify counsel where the public interest in maintaining the integrity of the judicial system outweighs the accused’s constitutional right. Criminal defendants have been constitutionally required to retain other counsel when “the need to preserve the highest ethical standards of professional responsibility” outweighs the accused’s constitutional right, United States v. Cunningham, 672 F.2d 1064, 1070 (2 Cir.1982), cert. denied, 104 S.Ct. 2154 (1984), and “where the inability of retained counsel to serve gives promise of unreasonable delay or inconvenience in completing the trial”. United States v. Cicale, 691 F.2d 95, 106 (2 Cir.1982), cert. denied, 460 U.S. 1082 (1983), quoting United States v. Bentvena, 319 F.2d 916, 936 (2 Cir.1963).
In United States v. Cunningham, supra, 672 F.2d 1064, the government moved to have the defendants’ attorneys disqualified as trial counsel. The district court applied a balancing test to determine whether the accuseds’ constitutional right to be represented by their retained counsel was outweighed by the interests of the government and the public in preserving the ethical standards of the legal profession. Our Court, in Cunningham, did not inquiré whether the government should be prevented from calling the attorney of one of the defendants as a witness in order to avoid the ethical conflict of interest necessitating the disqualification. Rather, we instructed the district court to determine whether the attorney’s testimony was admissible as unprivileged, nonhearsay, and if so, whether the accused’s constitutional right to retain counsel of his choice should override the public’s interest in enforcing Disciplinary Rule 5-102(A) which requires an attorney-witness to withdraw as trial counsel for his client. As Cunningham, and numerous other cases in this Circuit, make clear, the right to retain counsel of one’s choice is not absolute; it may be constitutionally impaired where the interests of the judicial system override the interests of the accused.
C.
Appellant’s counsel has complained bitterly about the government’s refusal to accept Doe’s offer of an informal proffer of the information sought in lieu of an appearance before the grand jury. Based on the statements made by appellant’s counsel in affidavits, at the hearing on the motion to quash, and at oral argument before us, however, it appears to be appellant’s contention that even an informal proffer would violate his asserted constitutional rights.
On October 22, 1984, at the hearing on Doe’s motion to quash the subpoena, the district court questioned whether Doe’s furnishing the information in any form, by affidavit or testimony before the grand jury, would not lead to his disqualification in any event. Doe’s attorney (who also represented appellant at the hearing) agreed that the form would make no difference on the issue of disqualification, but *986explained that, before any information was provided in any manner, it was his clients’ desire to have the government required to demonstrate why it needed the information, why Doe needed to be the source, and why the government’s present sources were inadequate to provide the information sought. When the court again suggested that disqualification was inevitable no matter from what source the government obtained the information, counsel indicated only that disqualification was not as certain as it would be if Doe were a grand jury witness.
Counsel repeated these same arguments on appeal and in his October 24, 1984 affidavit accompanying appellant’s motion for an expedited appeal. In that affidavit, counsel for appellant and Doe stated that
“[i]t was JOHN DOE’S overriding contention that since any appearance on his part in the grand jury, as well as even a suggested informal proffer of specific information short of a grand jury appearance, would result in his ultimate disqualification, it would create a chilling effect on his clients’ Due Process and Sixth Amendment rights by effectively destroying long-term and highly valued attorney-client relationships. It was urged, therefore, that the Government should be required to make a showing of an outweighing compelling need before such a subpoena could be enforced.”
It is appellant’s contention, therefore, that the problem exists no matter in what form his attorney is compelled to provide the evidence, and that the government must show a compelling need before it can require his attorney to provide any unprivileged information regarding their relationship.
D.
In response to appellant’s contentions, the majority in today’s decision has required the government to make a showing of “reasonable need” before it can enforce the subpoena against appellant’s attorney. Additional protection of Sixth Amendment rights, however, is not necessary. If additional protection of the attorney-client relationship from potential disqualification by grand jury subpoena is provided, then, at the very least, the protection should be tailored to the interest asserted, and the burden should be placed where it traditionally, and rationally, has been placed: on the party seeking to quash the subpoena.
Adequate protection of Sixth Amendment rights would be afforded by our decision to allow grand jury subpoenas to be quashed if they are shown to bear no conceivable relevance to any legitimate object of investigation by the grand jury. See In re Liberatore, 574 F.2d 78, 82-83 (2 Cir. 1978). If the information sought is relevant, then the grand jury should not be denied its traditional access to such information — calling before it those witnesses, who are believed to have relevant information, to give their testimony. If a grand jury target is subsequently indicted and prosecuted, and his attorney has given relevant information to the grand jury, raising the possibility that , he may be called as a witness at trial, then the trial court may balance the defendant’s Sixth Amendment right to retain that attorney as trial counsel against the public's interest in enforcing the ethical standards of the legal profession. See United States v. Cunningham, supra, 672 F.2d 1064. Concerns about prosecutorial abuse of grand jury subpoenas ignore the fact that subpoenas are subject to being quashed, In re Liberatore, supra, and grand juries are subject to judicial control. Courts will not allow grand juries to conduct bad faith investigations, or issue subpoenas solely for the purpose of disrupting a target’s relationship with his attorney. Cf. Branzburg v. Hayes, supra, 408 U.S. at 707-08.
The majority holds that the relationship between client and attorney deserves greater protection than it has received in the past. While such protection is not constitutionally required, some appellate courts have granted it pursuant to their supervisory power. See, e.g., Harvey, supra, 676 *987F.2d at 1012.10 Whatever the asserted basis for requiring a preliminary showing, it is inconceivable to me that the majority should have ignored our policy of requiring the party challenging the grand jury subpoena to bear the burden of showing that the information sought is either privileged or irrelevant to any legitimate object of investigation by the grand jury. By requiring the government to bear the burden of proving relevance and need before it can enforce a grand jury subpoena served on counsel for the grand jury target, the majority adopts the same kind of preliminary showing of which the Supreme Court has disapproved as causing undesirable delays in grand jury investigations.11 See United States v. Dionisio, supra, 410 U.S. at 16-18 & n. 16 (no constitutional rights involved); Branzburg v. Hayes, supra, 408 U.S. at 701-08 (constitutional rights involved). Further, in fashioning its protective requirements, the majority has failed to set forth a test that protects the interest sought to be protected.
The majority’s requirement that the government demonstrate a need for the information sought, and the reasonable unavailability of other sources for the information, will not adequately protect appellant’s interest. If the information is relevant, and the government obtains it and determines to use it at trial, disqualification will be an issue no matter from what source the information originally was obtained. The majority’s concern, therefore, should not have been limited to whether the attorney is the source of the information, but should have addressed whether the grand jury should be allowed to consider the information from any source. Such deference to the attorney-client relationship clearly would be inappropriate as it fails to reflect the interest of the public in the efficient functioning of the grand jury. A more appropriate test for all concerned would be to require the party seeking to quash a subpoena, like the one at issue here, to show that the information sought is either irrelevant to any legitimate object of investigation by the grand jury, or that the information may be obtained from another source that would avoid the risk of disqualification of appellant’s attorney. This was the line of reasoning followed by the district court in the instant case at the hearing on the motion to quash. I would hold that, if any additional protection of the attorney-client relationship is required, this test would balance the interest of both parties fairly and adequately.
Further than this we should not go. The right to retain counsel of one’s choice is not absolute and must yield to the public’s interest in the effective operation of the grand jury. Where, as here, Sixth Amend-*988merit rights have not yet attached, and may never attach, any imposition of additional tests and requirements for the government to meet prior to enforcement of the grand jury subpoena will only interfere unacceptably in the grand jury’s task of determining whether an indictment should be returned or whether the charges were recklessly and unjustifiably brought.
IV.
Rule 17(c) of the Federal Rules of Criminal Procedure gives the district court the power to quash or modify a grand jury subpoena if compliance would be unreasonable or oppressive. The scope of our review of a district court’s decision is limited to a determination of whether it acted so arbitrarily as to constitute an abuse of its discretion under the circumstances. The majority has failed to demonstrate that, where the government admittedly has made a showing of relevance, it is an abuse of discretion for a district court to deny a motion to quash a subpoena served upon the attorney for an unindicted target of a grand jury investigation without first requiring the government to show that the information sought from the attorney was necessary to the investigation and that no other reasonably available source exists for that information.12 The majority’s concern purportedly is for the target’s future potential right to retain counsel of his choice. This right is held to be “implicated” since the target’s attorney will be disqualified as trial counsel if the client is indicted, if the government decides to prosecute, and if the attorney is called as a witness against his client at trial. This right, however, even once it has attached, is guaranteed no more protection than prevention of the arbitrary dismissal of an accused’s chosen attorney. An important district court within the Second Circuit, in a well considered opinion, In re Grand Jury Subpoena Duces Tecum Dated January 2, 1985 (Siméis), 605 F.Supp. 839 (S.D.N.Y.1985), rev’d on other grounds, No. 85-6066 (2 Cir. June 27,1985), recently rejected the untenable contention that the threat of disqualification of an attorney compelled it either to quash a similar grand jury subpoena or to require that the government make a preliminary showing prior to enforcement of the subpoena. See especially, id. at 851 n. 16, the reference to “In Re Grand Jury Subpoena Served Upon John Doe, No. 84-6319 (2d Cir. appeal filed Oct. 25, 1984).” That is the instant case. Former Chief Judge Edelstein’s opinion in Siméis is a striking illustration of the mischief that will result in this Circuit until today’s majority opinion in the instant case is promptly and emphatically corrected.
The majority today seeks to create an unprecedented level of protection for unprivileged information in the hands of an attorney. Once client identity and fee information have been shown to be relevant to a grand jury investigation, as admittedly have been shown here, additional safeguarding of that information protects from disclosure the very fee structures we should seek to discourage — those that involve an attorney, whether wittingly or *989not, in a criminal conspiracy in which legal representation is a fringe benefit for the members of the conspiracy. If the information is shown to be irrelevant to the grand jury’s investigation, the subpoena may be quashed. If the information is relevant, the target’s future potential right to retain counsel of his choice, which will attach if and when he is indicted, will be adequately protected by a pre-trial hearing to determine whether the government intends to call the attorney as a witness at trial, and whether the accused’s right outweighs the various interests of the government and the public. The appropriate time to balance such conflicting interests is after the constitutional right has attached and disqualification is more than a speculative threat dependent on indictment, a decision to prosecute, and a decision to call the attorney as a witness at trial.
In my view, it is crystal clear that the majority has utterly failed to show that the district court acted so arbitrarily as to abuse its discretion in determining that, under these circumstances, requiring an unindicted target’s attorney to disclose relevant, unprivileged information would not be unreasonable or oppressive. It strikes me that, under the guise of reviewing the district court’s exercise of its discretion, the majority in reality is attempting to create a new constitutional requirement to be met by the government whenever it seeks to enforce a grand jury subpoena served on an attorney representing an unindicted target of a grand jury investigation. Since no constitutional right to retain counsel of one’s choice attaches while the target of a grand jury investigation remains unindicted, I decline to join the majority in importing a concept in the administration of the criminal law totally foreign to the law of the United States Supreme Court and of this Circuit.
I would affirm the district court’s order denying Doe’s motion to quash the grand jury subpoena duces tecum. From the majority’s refusal to do so, I respectfully but emphatically dissent.
. This dissenting opinion, in substantially its present form, originally was circulated to the other members of the panel some time ago. During the period that has elapsed since then, the majority opinion has shifted somewhat. For example, the majority has dropped its original reliance on an alleged Fifth Amendment due process right to counsel; and, for the first time, the majority asserts a standard of review based on Fed.R.Crim.P. 17(c) and asserts its reliance upon the supervisory powers of a court of appeals over federal grand jury proceedings.
Despite the shifting of position by the majority, I have decided to retain the substance of my original dissenting opinion. Whatever may be said of the new gloss on the majority opinion by virtue of its dropping certain of its original untenable positions, the current version of the majority opinion really has not departed from what I regard as the essential flaw in the majority's position, namely, its insistence that a preliminary showing by the government of relevance and need is constitutionally required prior to enforcement of a grand jury subpoena served on counsel for an unindicted target of a grand jury investigation. Having softened its specifications of constitutional amendments by name, the majority opinion now is replete with references to the "implicated constitutional rights” to counsel of a grand jury target. The essence of the majority’s original opinion remains unchanged. And so does this dissent, to which the majority specifically refers.
Moreover, I believe that counsel and their clients expect — indeed are entitled — to have the claims which they address to the Court ruled upon by the Court, including their various constitutional claims.
. In view of the massive reliance which the majority in the instant case places on Harvey —especially in relying on its supervisory powers over federal grand jury proceedings in this Circuit — we note that Harvey no longer has any precedential value even in the Fourth Circuit. Subsequent to Harvey, the Fourth Circuit, in an unpublished opinion by Judge Murnaghan, United States v. Morchower, No. 83-1816 (4 Cir. Sept. 28, 1983), explained the lack of precedential value of Harvey:
“The precedential value of the Harvey case was eliminated, however, when a majority of the circuit judges in regular active service ordered rehearing en banc. See 28 U.S.C. § 46(c), FRAP 35(a). Under the established practice of the Court, as a consequence, the panel decision was automatically vacated. Furthermore, the fact that Leon D. Harvey had, in the interim, (a) been indicted and (b) become a fugitive from justice led to an order withdrawing the panel opinions. In re Special Grand Jury 81-1 (Leon D. Harvey), 697 F.2d 112 (4th Cir.1982)."
Slip op. at 3. The Court explained further that "... the granting of rehearing en banc [in Harvey ] was a demonstration of the presence of a serious question in the mind of the Court as a whole as to the correctness of the opinion emanating from the panel majority."
Slip op. at 4. The Court concluded,
“Since the facts of Harvey make it ‘nearly identical’ [to Morchower] ..., causing it to present 'the precise question’ [as in Morchower] ..., and since we have concluded that the Harvey dissent has the better chance of prevailing, we apply the reasoning advanced in it and
AFFIRM."
Slip op. at 4-5. Judge Murnaghan was also the author of the dissent in Harvey. There he stated 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.”
Id., 676 F.2d at 1012 (footnote omitted).
With the elimination of any precedential value of the Fourth Circuit decision in Harvey, the position of the majority in the instant case is seriously undermined. There no longer is any authority whatsoever to which the majority can point in support of its reliance upon the supervisory powers of a court of appeals over federal grand jury proceedings to justify requiring the government, prior to enforcing a subpoena served upon counsel for an unindicted target of a grand jury investigation, to establish relevance and need. See Part IV of this dissenting opinion, infra.
. In support of its contention that the right to counsel of one’s choice must be given greater protection than it is presently afforded, the majority quotes from United States v. Mohabir, supra, 624 F.2d at 1149. See majority op. at 973. I think it is significant that a more complete quotation from Chief Judge Feinberg's opinion makes clear that the majority's concern for the right to retain counsel of one’s choice is misplaced since no prosecution has begun in the instant case:
“[A ]fter prosecution has begun, the right to obtain the assistance of counsel at all crucial stages is essential if both the symbol and reality of a fair trial are to be preserved____”
Id. (Emphasis added, that being the part omitted from the majority’s quote from the Mohabir opinion).
. Appellant contends that enforcement of the grand jury subpoena against his attorney will chill his future potential Sixth Amendment right to retain counsel of his choice. The argument that one’s rights are being chilled usually has been made in the context of First Amendment rights where a statute is found to be so vague or overbroad that it may inhibit the full exercise of First Amendment rights. In such cases, the petitioner claims that he is being deterred from exercising existing rights. The argument appears to be inapposite where the constitutional right allegedly chilled has not yet attached.
Further, the right to retain counsel of one’s choice is not an absolute right. United States v. Ostrer, 597 F.2d 337, 341 (2 Cir.1979). The disqualification of one’s attorney, therefore, is not necessarily an unconstitutional impairment of one’s right. See Part III infra of this opinion.
Nor will the disclosure to the grand jury of unprivileged information impair appellant’s statutory or common law attorney-client privi*980lege. The privilege would survive to protect confidential communications within its scope even if the attorney-client relationship were terminated. Weinstein & Berger, Weinstein's Evidence fl 503(c)[01], at 503-67 (1982).
. As stated above, the revised majority opinion, in vacating the district court’s order, has dropped its reliance on an alleged Fifth Amendment due process right to counsel.
. A second right to counsel exists as part of the Fifth Amendment privilege against self-incrimination. This right to counsel exists specifically to protect the Fifth Amendment privilege of individuals held for interrogation, Miranda v. Arizona, 384 U.S. 436, 469-73 (1966), and is separate from the Sixth Amendment right to counsel. Kirby v. Illinois, supra, 406 U.S. at 689.
. A district court may, of course, upon motion of a subpoenaed party, decide to quash or modify a particular subpoena where compliance would be unreasonable or oppressive. Fed.R. Crim.P. 17(c). We review such decisions only to determine whether the court acted so arbitrarily as to exceed its discretion. The majority holds that the district court abused its discretion by determining not to quash a subpoena served on an attorney for an unindicted grand jury target since the majority believes that constitutional rights are implicated. Thus, it seeks to create new constitutional requirements under the guise of reviewing the district court’s exercise of its discretion in supervising grand jury proceedings. This strikes me as utterly untenable. It flies squarely in the face of long settled law of the Supreme Court and of this Court.
. The burden on the Sixth Amendment right to retain counsel of one's choice is even more speculative where the target of a grand jury investigation is unindicted, since the right attaches only if and when he is indicted; Once the right attaches, a pre-trial hearing on whether an attorney's testimony will be required at trial protects the accused's right to retain counsel of his choice against arbitrary interference. This, as the majority recognizes, is the extent of the constitutional protection afforded the right to retain counsel of one’s choice.
. It is noteworthy that appellant probably would not be complaining on the impairment of his potential Sixth Amendment right to retain counsel of his choice if his attorney had heeded the warning of the Model Code of Professional Responsibility against accepting payment of clients' fees from a third party. DR 5-107(A), EC 5-21, 5-22. Accepting payment of clients’ fees from a third party may subject an attorney to undesirable outside influence, particularly where the attorney is representing clients in criminal matters and the third party is the head of a criminal enterprise of which the clients are members. In such a situation, an ethical question arises whether the attorney’s loyalties are with the client or the payor. See Judd, Conflicts of Interest — A Trial Judge's Notes, 44 Fordham L.Rev. 1097, 1099-1101, 1105 n. 41 (1976).
*985The head of a criminal enterprise can avoid the potential threat of disqualification of his attorney by providing the members of his enterprise with funds so that they may retain counsel directly. Of course, such an arrangement does not give the head of an enterprise the same control he would have as a "benefactor”. Often the presence of counsel retained by a benefactor acts to restrain the members of the criminal enterprise from trading information regarding the enterprise for leniency. The restraint can come either directly — as where the attorney pleads guilty for the defendant without allowing him to consider cooperating with the government — or indirectly — as where the presence of the attorney simply serves as a reminder to the defendant that his benefactor will hot be pleased if he becomes a government witness.
. We have held that our supervisory power over the district courts authorizes us to impose sanctions on grand jury prosecutors to encourage uniformity of practice within a district. United States v. Jacobs, 547 F.2d 772 (2 Cir. 1976), cert. dismissed, 436 U.S. 31 (1978). The authority of appellate courts to establish procedural rules, for district courts, regulating the enforcement of grand jury subpoenas, however, has been severely questioned. Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Columbia L.Rev. 1433, 1458-62, 1491-94 (1984).
. The majority states that "[ajctual experience suggests that requiring a preliminary showing will not impede the grand jury process.” See majority op. at 976 n. 10. The majority refers to a study of the Third Circuit’s requirement of a showing by affidavit that the items sought by a grand jury are relevant to its investigation, properly within its jurisdiction, and not sought primarily for another purpose. See In re Grand Jury Proceedings (Schofield), 507 F.2d 963, 966 (3 Cir.), cert. denied, 421 U.S. 1015 (1975). The Third Circuit, however, does not require a showing that the information sought cannot be obtained from other sources, a showing the Supreme Court has disapproved of as impeding grand jury investigations and frustrating "the public’s interest in the fair and expeditious administration of the criminal laws." United States v. Dionisio, supra, 410 U.S. at 17 & n.16.
Whatever may be said of the majority’s valiant effort to rationalize turning on its head the normal burden of requiring the party challenging a grand jury subpoena to bear the burden of proving its claim (see Part III of majority op. at 976 — a Part newly introduced in the current version of the majority opinion), the fact comes through loud and clear that this concept finds no support whatsoever in the law of the United States Supreme Court or of the Second Circuit.
. The majority relies on the First Circuit Court of Appeals’ refusal to hold that a district court abused its discretion in granting a motion to quash subpoenas served upon attorneys for unindicted targets of a federal grand jury investigation, The court stated that it was "unwilling to say that the district court exceeded its discretion in finding the timing of the subpoenas to be inappropriate, given the pendency of the state criminal proceedings in which the subpoenaed attorneys were serving as defense counsel.” In re Grand Jury Matters, 751 F.2d 13, 19 (1 Cir. 1984) (emphasis in original). The majority concedes that the fact that the subpoenaed attorneys in the First Circuit case were serving as defense counsel in related, pending state criminal proceedings is a "significant factual difference” between the two cases. See majority op. at 975. It is also significant that the subpoenas were quashed without prejudice to the government’s right to renew them at a more suitable time. In re Grand Jury Matters, supra. I would further note that the First Circuit case and the instant case also differ significantly in the deference shown by the reviewing courts to a district court's evaluation of whether compliance with a subpoena would be unreasonable or oppressive under the facts before it. As the First Circuit Court of Appeals noted, the determination of when the grand jury’s right to unprivileged evidence outweighs the right of the defense bar and its clients not to be disturbed is one that turns on the particular facts of the case as evaluated by the district court. Id.