In Re: Grand Jury Subpoena v. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1957
In Re: Grand Jury Subpoena
---------------------------
UNDER SEAL 1; UNDER SEAL 2,
Intervenors - Appellants,
v.
UNITED STATES OF AMERICA,
Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-MS-00256-1)
Argued: September 16, 2013 Decided: October 16, 2013
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed in part and vacated in part by unpublished per curiam
opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellants 1 challenge the district court’s order
granting the government’s Motion to Compel Documents and
Testimony Pursuant to Grand Jury Subpoena (the “Motion”). In
its order, the district court concluded that: (1) certain
emails sent by a government-employed lawyer were not protected
by the attorney-client privilege, and (2) the attorney-client
privilege does not exist between a government official and a
government-employed lawyer in the context of a criminal
investigation.
We affirm the order of the district court only as to
the emails in question. We vacate the remainder of the court’s
order.
I.
During the course of a grand jury investigation, the
government issued a subpoena duces tecum to one of the
Appellants requiring, inter alia, the production of “all emails”
between that Appellant and a government-employed lawyer
referencing certain topics. App. 35. 2 The Appellant listed two
1
Because this appeal concerns an ongoing grand jury
investigation, “we use generic terms to refer” to the parties
involved. In re: Grand Jury Subpoena, 341 F.3d 331, 333 n.1
(4th Cir. 2003).
2
Citations to “App.” refer to the Appendix filed by the
parties in this appeal. The Appendix has been filed under seal.
2
such emails on its privilege log as being protected by the
attorney-client privilege. See id. at 30. The government
subsequently filed the Motion, which requested not only a ruling
that the Appellant “failed to meet its burden of demonstrating
that the documents withheld are privileged,” but also “a
judicial determination that no . . . attorney-client privilege
exists between” the Appellant and a government-employed lawyer.
Id. at 1.
The district court held a hearing, permitted the
second Appellant to intervene, and granted the Motion,
explaining, “the evidence produced in this case does not
establish that the privilege applies in this case,” and more
broadly, “the attorney-client privilege may not be asserted in
criminal investigations to protect communications between a
government official and a government-employed lawyer.” App. 88.
Appellants filed a timely notice of appeal.
II.
A.
This court reviews a district court’s evidentiary
rulings -- including privilege determinations -- for abuse of
discretion, “factual findings as to whether a privilege applies
for clear error, and the application of legal principles de
novo.” United States v. Hamilton, 701 F.3d 404, 407 (4th Cir.
2012).
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It is well-settled that “confidential conversations
between a defendant and his counsel generally are protected by
the attorney-client privilege, which affords the communications
complete protection from disclosure.” United States v. Lentz,
524 F.3d 501, 523 (4th Cir. 2008) (internal quotation marks
omitted). This court has held, “[t]he burden is on the
proponent of the attorney-client privilege to demonstrate its
applicability. The proponent must establish not only that an
attorney-client relationship existed, but also that the
particular communications at issue are privileged and that the
privilege was not waived.” In re: Grand Jury Subpoena, 341 F.3d
331, 335 (4th Cir. 2003). The proponent must prove,
(1) the asserted holder of the privilege is or sought
to become a client;
(2) the person to whom the communication was made (a)
is a member of the bar of a court, or his subordinate
and (b) in connection with this communication is
acting as a lawyer;
(3) the communication relates to a fact of which the
attorney was informed (a) by his client (b) without
the presence of strangers (c) for the purpose of
securing primarily either (i) an opinion on law or
(ii) legal services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing
a crime or tort; and
(4) the privilege has been (a) claimed and (b) not
waived by the client.
Lentz, 524 F.3d at 523 (internal quotation marks omitted).
We agree with the district court that Appellants have
not met their burden of establishing the emails are protected by
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the attorney-client privilege. Specifically, they do not meet
elements two and three above. At the district court hearing,
the government-employed lawyer could not (or at least did not)
testify that he was acting as a lawyer or providing an opinion
of law or legal services to Appellants with respect to the
emails. See App. 118. The lawyer’s own declaration fails to
state the same. See id. at 83-84. Appellants provided no other
affidavits, statements, or witnesses on this point.
Appellants argue they need not do so. They posit that
it is sufficient that the government-employed lawyer generally
stated, “one of my primary roles is providing the [government
official] with advice” regarding certain issues. See App. 110.
In so arguing, they rely heavily on In re Lindsey, which stated,
We have little doubt that at least one of Lindsey’s
conversations subject to grand jury questioning
“concerned the seeking of legal advice” and was
between President Clinton and Lindsey or between
others in the White House and Lindsey while Lindsey
was “acting in his professional capacity” as an
attorney. Before the grand jury, Lindsey spoke of
many instances when legal advice would clearly have
been appropriate, . . . and he specifically affirmed
that there were times when White House staff members
came to him in his role as a member of the White House
Counsel’s Office . . . . Furthermore, there were
times when Lindsey only invoked executive privilege,
. . . at least implying that he invoked attorney-
client privilege only when he thought it appropriate
to do so. The issue whether the government attorney-
client privilege could be invoked in these
circumstances is therefore ripe for decision.
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158 F.3d 1263, 1271 (D.C. Cir. 1998) (citations omitted)
(emphasis in original). But even Lindsey recognizes,
“consultation with one admitted to the bar but not in that other
person’s role as lawyer is not protected” and requires the
proponent of the privilege to “present the underlying facts
demonstrating the existence of the privilege in order to carry
its burden.” Id. at 1270 (internal quotation marks omitted).
Appellants utterly failed to present any specific underlying
facts to establish the privilege and meet their burden. The
record contains evidence of not even a single conversation
between the government official and the government-employed
lawyer that concerned the seeking of legal advice. Thus,
Lindsey is unavailing.
B.
Having decided that Appellants failed to meet their
burden as to the two emails, we must now address whether we can
review the district court’s broad ruling that the attorney-
client privilege does not exist between a government official
and a government-employed lawyer in the context of a criminal
investigation. We conclude that the issue is moot, and to
review it at this juncture would be to render an advisory
opinion.
Having decided that the two emails -- the only
concrete evidence in this record -- do not give rise to the
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privilege, there is no remaining justiciable dispute before us.
Indeed, review of the aforementioned broad ruling “could not
possibly have any practical effect on the outcome of the matter”
concerning the two emails, and therefore, the “dispute is moot
[because] the parties lack a legally cognizable interest in the
outcome.” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d
150, 161 (4th Cir. 2010); see also Reynolds v. Am. Nat’l Red
Cross, 701 F.3d 143, 156 (4th Cir. 2012). In such a situation,
“[t]he customary practice . . . is to vacate the moot aspects of
the lower court’s judgment.” Norfolk S. Ry., 608 F.3d at 161.
Furthermore, if we were to decide this moot issue, we
would be issuing an impermissible advisory opinion. Norfolk S.
Ry., 608 F.3d at 161 (“‘To decide a moot issue is to issue an
advisory opinion.’” (quoting Friends of Everglades v. S. Fla.
Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009))); see
also Flast v. Cohen, 392 U.S. 83, 96 (1968) (“[T]he oldest and
most consistent thread in the federal law of justiciability is
that the federal courts will not give advisory opinions.”
(internal quotation marks omitted)); Shenandoah Valley Network
v. Capka, 669 F.3d 194, 202 (4th Cir. 2012) (“[A] dispute is
lacking here — and because we cannot issue an advisory opinion —
we have no authority to adjudicate this suit.”).
Considering this authority, and the fact that
Appellants have proffered only conclusory and hypothetical
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assertions to support their claim that the attorney-client
privilege applies to the grand jury investigation as a whole, we
decline to assess their blanket assertion of the privilege. We
note, however, that should the record be more fully developed
through the course of the grand jury investigation such that a
concrete dispute arises as to particular communications,
justiciable claims may yet lie.
III.
For the foregoing reasons, we affirm the district
court’s ruling that the two emails in question are not protected
by the attorney-client privilege, and we vacate as moot the
court’s broad ruling regarding the scope of the privilege
between a government official and a government-employed lawyer
in the context of a criminal investigation.
AFFIRMED IN PART
AND VACATED IN PART
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