In Re Grand Jury Proceedings

United States Court of Appeals
For the First Circuit

Nos. 04-1808, 04-1809, 04-1810

IN RE: GRAND JURY PROCEEDINGS.
__________

ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS FROM ORDERS COMPELLING WITNESS
TESTIMONY BEFORE A GRAND JURY AND PROHIBITING THE WITNESS FROM
COMMUNICATING WITH THE APPELLANTS OR APPELLANTS’ COUNSEL

Before

Boudin, Chief Judge,

Lynch and Lipez, Circuit Judges.

[[ ]]*

July 8, 2005

*
This is a redacted version of the original decision filed
under seal on April 26, 2005. The redactions in this published
version, indicated by double brackets, are intended to make public
the court's legal rulings while protecting grand jury secrecy and
related interests. See, e.g., In re Grand Jury Subpoena, Judith
Miller, 397 F.3d 964, 1002 (D.C. Cir. 2005); In re Lindsey, 148
F.3d 1100 (D.C. Cir. 1998).
 BOUDIN, Chief Judge. This case presents important

questions involving grand jury operations and the attorney-client

privilege. Because the grand jury investigation is ongoing, our

discussion omits a certain amount of detail and by a separate order

the decision is being sealed. However, the court anticipates that

an expurgated version of the opinion or summary of the key legal

rulings will be published in due course.

Background. In the course of a grand jury investigation

in [[ ]], a lawyer (Lawyer I) directed his client ("Client A")

to commit perjury in testifying before the grand jury, after

initially advising him to tell the truth. The same lawyer has also

represented another client ("Client B") who might or might not have

some connection with the earlier perjury. In [[ ]], Lawyer I

told Client A to recant the false testimony. Lawyer I did so after

consulting with Lawyer II, who represented [[ ]] other clients

(collectively "Group C") variously connected with Client B and with

pertinent events.

Learning of the perjury, the government is now

investigating the possible involvement of others with that perjury

and with other possible crimes. The present grand jury summoned

Lawyer I, and the prosecutor sought to question him about the prior

perjury of Client A including the involvement of others with that

perjury and its subornation. Lawyer I refused to answer a number

of these questions, saying that answering them would invade Client

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B's attorney-client privilege and the joint-defense privilege

enjoyed by the Group C clients.

That questions to Lawyer I might invade the privilege of

Client B is clear but the Group C clients are not represented by

Lawyer I but by Lawyer II who practices independently. However, it

was Lawyer I's position, not contested by the government at this

stage, that the two lawyers at the relevant times had a joint-

defense arrangement which allowed them, without waiving the

attorney-client privilege, to exchange confidences that their

respective clients may have confided to them separately.

Eventually the government moved to compel Lawyer I to

answer the disputed questions, arguing that the crime-fraud

exception defeated the claim of privilege as to both Client B and

the Group C clients. Upon Lawyer I’s request, the court notified

Client B’s current counsel--unaffiliated with Lawyer I--and counsel

for each of the Group C clients; [[ ]].

At the government’s behest, the district court also

directed Lawyer I not to reveal to anyone (other than his own

counsel) the “substance of the government’s motion to compel”--an

order the government thought essential to protect against the risk

that Lawyer I might affect or influence other potential grand jury

witnesses. Client B objected that under Fed. R. Crim. P.

6(e)(2)(A), Lawyer I could not be barred from disclosing to Client

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B or anyone else what he (Lawyer I) learned as a grand jury witness

or elsewhere.

Current counsel for two [[ ]] Group C clients

also objected to the motion to compel. Lawyer II provided an

affidavit describing his representation of the Group C clients; in

addition to other details about his consultations with Lawyer I, he

said that incident to their joint defense arrangement he had

disclosed to Lawyer I confidential information received from at

least one of the Group C clients.

The district court held several hearings and heard

arguments as to whether or not the privilege was abrogated. The

government also made two ex parte filings whose contents were not

made known to opposing counsel; a redacted version of one of the

filings was, however, supplied to opposing counsel. Such ex parte

submissions, although surprising to those unacquainted with the

practice, have precedent in certain contexts including grand jury

matters and privilege claims. See In re Grand Jury Proceedings

(Violette), 183 F.3d 71, 79 (1st Cir. 1999).

The court also considered the government’s request that

it engage in a limited type of in camera inquiry suggested as a

possibility by the Supreme Court in United States v. Zolin, 491

U.S. 554 (1989). In such an inquiry the judge may examine

privileged material itself to determine whether it is or remains

privileged. The district judge expressed reservations about his

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capacity, given the complexities of the background events, to

conduct such a limited inquiry which would involve the judge in

questioning Lawyer I and not merely reviewing documents. In the

end, the government chose to rest on what it already adduced and

abandoned its request for an in camera inquiry under Zolin.

Thereafter, in March 2004, the district court granted the

government's motion to compel answers to the government's listed

questions. Requests by Client B and one of the Group C clients to

allow their lawyers to interview Lawyer I about the underlying

events were denied. The objecting clients then sought access to

all of the filings made so far in the district court, including the

government's ex parte filings. This too was denied in October 2004

when the district court issued a memorandum explaining its

decisions in more detail.

In the October 2004 memorandum, the district judge

explained his reasons for concluding that the crime-fraud exception

applied. The judge said he was satisfied that the government had

made a "prima facie showing" not only of Lawyer I's corruption but

also, [[ ]], of

a shared intent by the Clients--when making
the communications the government seeks to
discover--to use otherwise privileged
attorney-client communications to facilitate
corruption and frustration of the grand jury
inquiry.

The district judge stressed that he was not finding that any of the

clients had in fact corruptly communicated with counsel. He only

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found enough of a likelihood had been established to justify

compelling Lawyer I's answers--albeit "limited only to those lines

of inquiry" identified by the government.

The district court expressed discomfort with the

government's bypassing of the Zolin in camera inquiry, warning that

this might result in a remand. The court also explained its

reasons for concluding that the court had authority to forbid

Lawyer I from disclosing to anyone, including Lawyer II and to

Client B and the Group C clients, what he had been asked in the

grand jury or other information pertaining to “the subject matter”

of the grand jury inquiry.

On this appeal, Client B and the Group C clients, as the

alleged privilege holders, have attacked the prima facie standard

adopted by the district court and, in the alternative, argued that

even this allegedly too lenient standard has not been met. Client

B also urges that the government and district court were obliged to

follow the Zolin in camera procedure. Finally, the clients say

that the non-disclosure order to Lawyer I was barred by Fed R.

Crim. P. 6(e)(2) and that it was overly broad as well.

The customary standard of review in cases of privilege is

that strictly legal questions are reviewed de novo, raw fact

findings are reviewed for clear error, and the application of legal

standards to specific facts with a measure of deference. See

Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002);

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United States v. Mass. Inst. of Tech., 129 F.3d 681, 683 (1st Cir.

1997).1 We begin with the privilege question, which involves both

law and law-application issues, and then return to the Rule 6 issue

which presents solely a question of law.

Privilege. Familiarly, the attorney-client privilege--

somewhat simplified--is a privilege of a client to refuse to

testify or to have his counsel testify as to confidential

communications between the two made in connection with the

rendering of legal representation, see Cavallaro, 284 F.3d at 245;

see also Fisher v. United States, 425 U.S. 391, 403 (1976); 8

Wigmore, Evidence § 2292 (McNaughton rev. 1961). It extends as

well to communications made within the framework of a joint defense

arrangement. In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st

Cir. 2001); United States v. Bay State Ambulance and Hosp. Rental

Serv., Inc., 874 F.2d 20, 28 (1st Cir. 1989).

The crime-fraud exception–-one of several qualifications

to the attorney-client privilege–-withdraws protection where the

client sought or employed legal representation in order to commit

or facilitate a crime or fraud. Specifically, courts have required

the privilege challenger to present evidence: “(1) that the client

1
The decisions, e.g., Violette, sometimes say that privilege
determinations are reviewed for abuse of discretion, but this is
the "umbrella" usage of the phrase by which, for example, an
abstract error of law–-certainly not reviewed deferentially–-is
described as one kind of abuse of discretion. E.g., Cooter & Gell
v. Hartmark Corp., 496 U.S. 384, 402 (1990).

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was engag[ed] in (or was planning) criminal or fraudulent activity

when the attorney-client communications took place; and (2) that

the communications were intended by the client to facilitate or

conceal the criminal or fraudulent activity.” Violette, 183 F.3d

at 75.2

Like the privilege itself, the exception, where employed

in a federal criminal case, is effectively a creature of federal

common law. See Fed. R. Evid. 501. This means that federal judges

start with a core of common precedent reflecting the privilege but

also have power to refine and adjust both the substance and

procedure in light of reason and experience. See Zolin, 491 U.S.

at 562-63; Violette, 183 F.3d at 77-78. The process of development

is far from over.

It is often hard to determine whether the attorney-client

relationship has been misused by the client for crime or fraud

without seeing the document, or hearing the testimony, as to which

the privilege is claimed. To overcome this problem (as well as

other privilege problems) judges have sometimes been willing to

review privileged materials by themselves in camera and then decide

whether the other side is entitled to it. See, e.g., United

States v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997). The Supreme

Court has blessed this procedure in Zolin. 491 U.S. at 572; see

2
See generally United States v. Reeder, 170 F.3d 93, 106 (1st
Cir.), cert. denied 528 U.S. 872 (1999); United States v. Rakes,
136 F.3d 1, 4 (1st Cir. 1998).

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also Edgar v. United States, 82 F.3d 499, 509 (1st Cir.), cert.

denied 519 U.S. 870 (1996).

Zolin also said that a “lesser evidentiary showing” is

needed for in camera review than is needed finally to pierce the

privilege, and that upon this showing whether to conduct in camera

review is within the trial court’s discretion. 491 U.S. at 572.3

For such a review, all that was needed was a factual basis “to

support a good-faith belief by a reasonable person” that “in camera

review of the materials may reveal evidence to establish the claim

that the crime-fraud exception applies." Id. (internal quotation

mark omitted). "May" is a very relaxed test and, as only the judge

gets this initial access, properly so.

However, Zolin did not answer the question of what level

of proof is needed to pierce the privilege itself, 491 U.S. at 563,

although it acknowledged that the statement in Clark v. United

States, 289 U.S. 1, 14 (1933), that a “prima facie case” was the

needed showing “has caused some confusion.” Zolin, 491 U.S. at 563

n.7. In our own case, the district court found a prima facie

showing had been established, but cautiously did not further

explain what this meant. We share its caution but are obliged to

attempt refinement.

3
Despite Zolin’s mention of discretion, conceivably on some
facts a district court might abuse its discretion by declining to
conduct an in camera review prior to piercing the privilege. But
a categorical rule would be unwise and Client B has not argued for
one.

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 "Prima facie" is among the most rubbery of all legal

phrases; it usually means little more than a showing of whatever is

required to permit some inferential leap sufficient to reach a

particular outcome. Black’s Law Dictionary 1228 (8th ed. 2004);

e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Here, the outcome is piercing the privilege based on a certain

level of proof. This circuit has previously avoided a calibration

of that level, Violette, 183 F.3d at 78, as has the Supreme Court,

Zolin, 491 U.S. at 563, but it is important in this case as to one

client.

As we read the consensus of precedent in the circuits, it

is enough to overcome the privilege that there is a reasonable

basis to believe that the lawyer's services were used by the client

to foster a crime or fraud.4 The circuits--although divided on

articulation and on some important practical details--all

effectively allow piercing of the privilege on something less than

a mathematical (more likely than not) probability that the client

intended to use the attorney in furtherance of a crime or fraud.

4
A "probable" or "reasonable" cause standard is used in the
Second, Sixth and Ninth Circuits. Jacobs, 117 F.3d at 87; In re
Grand Jury Proceedings, 87 F.3d 377, 381 (9th Cir.), cert. denied
519 U.S. 945 (1996); In re Antitrust Grand Jury, 805 F.2d 155, 165-
66 (6th Cir. 1986). The Third Circuit requires "evidence which, if
believed by the fact-finder, would be sufficient to support a
finding that the elements of the crime-fraud exception were met,”
Haines v. Liggett Group Inc., 975 F.2d 81, 95-96 (3d Cir. 1992);
accord, In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985). The
Third and D.C. Circuits have described their standard as similar to
“probable cause.” Haines, 975 F.2d at 95; In re Sealed Case, 754
F.2d at 399 n.3.

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This is a compromise based on policy but so is the existence and

measure of the privilege itself.

Precisely because of the initial barrier of the

privilege, it is very hard for an adversary unaided to show that

the privileged communications were themselves corrupt, so the

requirements for access cannot be set too high. And, if the

communications were innocent, the initial look may often not damage

the client. In all events, the reasonable cause standard is

intended to be reasonably demanding; neither speculation nor

evidence that shows only a distant likelihood of corruption is

enough.

In addition, the privilege is not lost solely because the

client’s lawyer is corrupt–-as was certainly true in this case

since the lawyer suborned Client A’s perjury. The crime-fraud

exception requires the client’s engagement in criminal or

fraudulent activity and the client’s intent with respect to

attorney-client communications. Violette, 183 F.3d at 75, 79.

Accord, In re Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir.),

cert. denied 525 U.S. 966 (1998); In re Sealed Case, 107 F.3d 46,

49 (D.C. Cir. 1997). If there are contrary views,5 we do not think

that they comport with the modern view of the privilege’s nature

5
In re Impounded Case (Law Firm), 879 F.2d. 1211, 1213-14 (3d
Cir. 1989), cited by the government, says that the crime-fraud
exception may apply even where “pertinent alleged criminality is
solely that of the law firm,” but it is unclear in the context of
that case whether the court intended that this showing would
forfeit the privilege of an innocent client.

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and purpose as explained in Upjohn v. United States, 449 U.S. 383,

389 (1981).

An additional limitation on piercing is that it is not

enough to find reasonable cause to believe that the client is

guilty of crime or fraud. Forfeiture of the privilege requires the

client's use or aim to use the lawyer to foster the crime or the

fraud. As Rakes explained:

No general rule withdraws the privilege from
communications that occur in the same time
frame as criminal [conduct]. . . . [T]he
attorney-client privilege is forfeited inter
alia where the client sought the services of
the lawyer to enable or aid the client to
commit what the client knew or reasonably
should have known to be a crime or fraud.

136 F.3d at 4.

Here, we are satisfied that the reasonable cause standard

is satisfied as to Client B. [[ ]]

Our assessment, like that of the district judge, is

preliminary, reflects no finding that Client B acted wrongfully,

and is limited solely to the issue whether there is reasonable

cause adequate to pierce Client B’s privilege. The compelled

testimony of Lawyer I (or other evidence) could turn out to

vindicate Client B entirely and inculpate someone (or no one) else.

The prima facie case is sometimes assumed to destroy the privilege

once and for all once the opponent gains access to the material

(which is one reason for the Zolin procedure). We think that there

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may well be room for protective remedies if the privilege is

initially pierced but this turns out to have been in error.

It should be noted, finally, that the district court’s

initial proposal to examine Lawyer I in camera was not a finding

that the government had met only the lower threshold under Zolin

and therefore could only proceed to issue its motion to compel

after acquiring additional inculpatory evidence obtained in camera.

In its October 2004 decision, the district court made quite clear

that the government had fully met its prima facie burden needed to

overcome Client B’s privilege, and it is this conclusion that we

affirm.

The more difficult problem concerns the Group C clients.

There is scant evidence that these clients' purpose in retaining

Lawyer II was to use his services in furtherance of a crime or

fraud. True, the district judge made a finding (quoted above) of

a “shared intent” to “use otherwise privileged attorney-client

communications to facilitate corruption and frustration of the

grand jury inquiry.” But his decision points to no facts to

buttress this finding, nor--more ominously since the government

certainly should know--is any such raw-fact evidence identified in

the government’s briefs.

It is not enough that the lawyer’s work posed an obstacle

to the grand jury; perfectly legitimate representation may do this.

[[ ]] To pierce the privilege requires that the

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clients have an intent to misuse their legal representation (e.g.,

by enlisting the lawyer’s advice to frame their perjury) to

perpetrate the crime or fraud. Violette, 183 F.3d at 75. Such

evidence may exist as to Group C but it has not yet been furnished.

The government relies upon In re Sealed Case, 754 F.2d at

399-402, where a client’s document destruction incident to

litigation was treated as undercutting the privilege of

communications between it and its lawyers in that litigation. But

there, the attorneys represented the client in the very litigation

for which evidence had been destroyed, and in hearings in which the

client sought to prevent exposure of the destruction, in the course

of which they filed false documents and verified their

authenticity. Id. at 400, 402. The lawyers were thus justifiably

characterized as “instrumentalities in the ongoing cover-up.” Id.

at 402. In this case, no such misuse of Lawyer II is shown.

Now that Client B’s privilege has been pierced, some of

what the government seeks can conceivably be obtained by questions

directed to Lawyer I tailored to avoid disclosures that would

invade Group C’s privilege; arguably Lawyer I-Client B

conversations can be reached regardless of what information Lawyer

I passed on to the Group C clients. How far Lawyer I may be

questioned about the source of the information--if it came from

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Lawyer II or the Group C clients--may be more debatable. Other

difficult questions may also arise.6

The government also remains free to ask the district

court to make an in camera inquiry under Zolin directed to

overcoming the Group C clients’ privilege. The government

abandoned this quest when it apparently judged that the district

court might side with it anyway. Nothing prevents the prosecutor

from pursuing this route, either before or after further

questioning of Lawyer I, if the district judge is willing to follow

it. It is for the district court to say whether the low Zolin

standard would warrant in camera questioning of the Group C

clients.

The non-disclosure order. When in December 2003 the

district court gave notice of the government's motion to compel, it

included a protective order directing Lawyer I and his counsel that

“the substance” of the motion to compel should not be further

disclosed or discussed with any third parties (including Client B,

Client B’s current attorney, Lawyer II or the Group C clients). In

its October 2004 memorandum, the district court added that it would

continue prohibiting Lawyer I “from discussing the subject matter

6
An example is the extent to which–-once Client B’s privilege
is pierced–-Lawyer I may be made to testify about whether he
conveyed these clients’ information to Lawyer II. See, e.g., In re
Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001) (“Even when
[the joint-defense privilege] applies, however, a party always
remains free to disclose his own communications.”); United States
v. Agnello, 135 F. Supp. 2d 380, 383 (E.D.N.Y. 2001) (same).

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of his grand jury [testimony] with anyone other than his own

counsel.”

Together, Client B and the Group C clients urge that the

order is inconsistent with Rule 6(e), is in any event over-broad,

and violates the First Amendment. Client B, in particular,

complains that Lawyer I’s counsel interpreted the order to extend

beyond “matter[s] occurring before the grand jury” to preclude

Lawyer I from discussing not only what he was asked but also his

recollection of the underlying events in which Lawyer I was

involved. These include Lawyer I's original subornation and his

later turn-about advice that Client A recant.

These past events are matters assuredly of interest to

Client B, given government suspicions of him. Moreover, as Lawyer

I represented Client B at the time of the subornation, the latter

certainly has special reason to want to know what his erstwhile

lawyer recalls about those events.7 In the district court, Client

B unsuccessfully sought to clarify and narrow the order and he now

says that the district court has implicitly confirmed Lawyer I’s

counsel’s reading. Whether or not the district court so intended,

the government does not dispute that the protective order is

intended to have this breadth.

7
The government has not contested standing and quite arguably
these interests are enough to give Client B standing to challenge
the existence and scope of the secrecy order. But cf. In re
Swearingen Aviation Corp., 605 F.2d 125, 126-27 (4th Cir. 1979)
(rejecting challenge to secrecy order by non-witnesses on grounds
that secrecy was meant to benefit witnesses).

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 There are several layers of argument to be peeled away.

The first is the clients' claim that Rule 6(e) by itself bars the

imposition of any secrecy order on Lawyer I. Fed. R. Crim. P.

6(e)(2)(B) lists categories of persons (e.g., grand jurors and

court reporters) who "must not disclose a matter occurring before

the grand jury," subject to certain exceptions in subsection

6(e)(3). But 6(e)(2)(B) is preceded by subsection 6(e)(2)(A) which

provides: "No obligation of secrecy may be imposed on any person

except in accordance with Rule 6(e)(2)(B)."

Witnesses are not listed in Rule 6(e)(2)(B), nor does

Lawyer I fall into any of the listed categories of persons who

"must not" disclose grand jury matters. Pertinently the original

advisory committee note says that "[t]he rule does not impose any

obligation of secrecy on witnesses" and, although some districts

did so prior to the rule, a "seal of secrecy on witnesses seems an

unnecessary hardship and may lead to injustice if a witness is not

permitted to make a disclosure to counsel or to an associate."

Rule 6 Advisory Committee Notes, 1944 Note to Subdivision (e).

At first blush this appears to be a strong argument for

the appellants, but several courts have read the rule more

narrowly.8 These decisions take Rule 6(e)(2)(A) to set a default

8
E.g., In re Subpoena To Testify Before Grand Jury Directed to
Custodian of Records, 864 F.2d 1559, 1563-64 (11th Cir. 1989); In
re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 680 (8th Cir.),
cert. dismissed 479 U.S. 1013 (1986). But see United States v.
Radetsky, 535 F.2d 556, 569 (10th Cir.), cert. denied 429 U.S. 820
(1976), overruled in part on other grounds by United States v.

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rule of permitting disclosure by witnesses absent a contrary order

by the court in that proceeding, but also to leave open the

possibility of restrictions where they can be justified by

particular and compelling circumstances. See In re Grand Jury

Proceedings, 814 F.2d 61, 69 (1st Cir. 1987) (collecting cases but

not deciding the issue).

We now decide that the rule’s phrasing can, and should,

accommodate rare exceptions premised on inherent judicial power.

Absent restriction, courts have inherent power, subject to the

Constitution and federal statutes, to impose secrecy orders

incident to matters occurring before them. The general power is

regularly expressed in orders limiting access to discovery

materials, closing sensitive proceedings, and in other contexts.

Sometimes these powers are reflected in or reconfirmed by rules,

e.g., Fed. R. Civ. P. 26(c), but orders of this kind predated such

rules which ordinarily reflect or refine the underlying authority

without displacing it.9

Daily, 921 F.2d 994, 1004 & n.11 (10th Cir. 1990).
9
See Chambers v. NASCO, Inc., 501 U.S. 32, 42-50 (1991)
(sanctions rules do not displace courts’ inherent authority);
United States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir.), cert.
denied 125 S. Ct. 276 (2004) (“Although Rule 6(e)(3) enumerates the
exceptions to the traditional rule of grand jury secrecy . . . the
district courts have inherent power beyond the literal wording of
Rule 6(e)(3) to disclose grand jury material . . . .”); Matter of
Special March 1981 Grand Jury, 753 F.2d 575, 577 (7th Cir. 1985)
(court has inherent power to cure improvident disclosure).

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 Those who drafted and approved Rule 6(e) seemingly

intended to do no more than abolish a general practice existing in

some districts of automatically silencing grand jury witnesses as

to their testimony. The advisory note says that the rule “does not

impose” secrecy obligations and does not say that it prohibits such

obligations made by appropriate order. There is no indication in

the history of an intent to cut off the courts’ power to restrict

disclosure based on extraordinary circumstances. Cf. Aisenberg,

358 F.3d at 1347.

In this case, we are not dealing with an ordinary grand

jury witness. Lawyer I confessedly suborned perjury of a witness

in a related grand jury proceeding and is connected to certain

underlying events that may have comprised an effort to frustrate a

grand jury investigation. Further, disclosure of what is now

happening in the present grand jury could help Client B (whose own

privilege has been pierced under the crime-fraud exception) and the

Group C clients [[ ]] coordinate their own testimony.

Rule 6(e)(2)(A) was not directed to such a situation nor

does the First Amendment bar an appropriately tailored order. The

interest in the secrecy of grand jury proceedings during their

pendency has been treated with great respect by the courts.10 The

10
See, e.g., In re Grand Jury Subpoena, 223 F.3d 213, 218-19
(3d Cir. 2000); In re Subpoena To Testify, 864 F.2d at 1564; see
also 2 Beale et al., Grand Jury Law and Practice § 9:19 (2d ed.
1997).

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present ban is concerned with protecting an ongoing grand jury

investigation from further abuse by one who has already

demonstrated a capacity and intention to frustrate the

investigation. The restriction as to only one witness is planted

in an adequate showing of special need.

Our circumstances are far away from the only Supreme

Court case invoked by appellants. In Butterworth v. Smith, 494

U.S. 624, 635-36 (1990), the Supreme Court struck down a Florida

statute precluding a state grand jury witness from ever disclosing

his grand jury testimony. But the grand jury proceeding had long

been completed and it was the permanency of the ban that most

troubled the Supreme Court. Id. at 632, 635-36. Lawyer I or

Client B may return to the district court to request a termination

of the ban whenever the need for it has disappeared.

This takes us to appellants’ claim that the ban, if

sustainable at all, is overly broad. The ban appears to cover two

different although related subjects. One is disclosure by Lawyer

I of whatever happens within the grand jury--questions he has been

asked or may be asked, answers he has given or may give, documents

he may provide or be shown, and the like. The other is his own

independent recollection of events about which he may or may not be

asked including discussions or interactions with Clients A and B.

The former are, strictly speaking, "matter[s] occurring

before a grand jury" and their revelation poses the most direct

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threat that the government's hand may be disclosed to other

witnesses, enabling them to alter their own answers or coordinate

evasions. Such revelations are already prohibited for most of

those connected with the grand jury, and extension of this

limitation to Lawyer I, based on the special circumstances of this

case, is justified.

It is more difficult to sustain a ban on Lawyer I's

discussion with his own former client, or with others, about Lawyer

I's independent recollection of previous events outside the grand

jury even though they may be matters about which the grand jury has

questioned or will question him. In particular, Client B has a

clear interest in preserving the opportunity to find out what his

former lawyer recollects about Client B's own involvement and the

interaction. Nor does such a discussion, if honestly conducted,

reveal the grand jury's plan of attack.

Of course, any discussion between Lawyer I and anyone

else of interest to the grand jury presents an opportunity to

conspire and tailor stories. But that opportunity exists in any

event; Lawyer I has not been precluded from all contact with his

own former clients or lawyers for Group C clients. Nor do we

normally prevent indicted co-conspirators from discussing their

cases with one another even though in some cases the prospect that

they will tailor their stories is very real.

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 The district judge has adopted the broad construction of

his order, if at all, by indirection, and has never provided an

explicit grounding for extending the order beyond revelation of the

proceedings before the grand jury. The original notice barred

disclosure by Lawyer I only of “the substance of the government’s

motion to compel”; and the October memorandum ambiguously

prohibited discussion of “the subject matter of [Lawyer I’s] grand

jury [omitted word--presumably “testimony”] with anyone.”

We do not say that a witness could never be precluded

from discussing independent recollections; situations involving

national security are too obvious a concern to encourage general

pronouncements. Instead, finding the ban unclear in scope but

lacking clear justification for the broader reading, we modify the

present restriction to cover only (in addition to the substance of

the government's sealed motion) "matters occurring before the grand

jury" and not independent recollections of the witness about

external prior events as to which the witness has been or may be

questioned.

There is one further caveat. It is difficult to foresee

how events may develop and we are sensitive to the fact that Client

B and to a lesser extent the Group C clients seemingly had a

protected relationship with Lawyer I. Our modified affirmance of

the order limiting disclosure by Lawyer I rests on the

understanding that Lawyer I, Client B and the Group C clients

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remain free at any time to seek relief from the district court for

good cause shown so as to permit Lawyer I to disclose some or all

of his grand jury testimony to Client B, the Group C clients or

both.

Accordingly, the district court's order granting the

motion to compel is affirmed as to Client B’s privilege but vacated

as to the Group C clients’ privilege (without prejudice to a

further showing by the government with respect to them). The order

limiting disclosure is modified, and as modified affirmed, to apply

only to the proceedings before the district court on the motion to

compel and to "matters occurring before the grand jury" as that

phrase is customarily employed and as discussed above. No costs.

It is so ordered.

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