In Re Grand Jury Subpoena Served Upon John Doe, Esq. Richard Roe, Intervenor-Appellant v. United States , 781 F.2d 238 ( 1985 )

CARDAMONE, Circuit Judge,

dissenting:

The government’s attack on the right to counsel of one’s own choice in this case goes too far. Hypothesizing that perhaps some guilty members of organized crime evade justice because of their lawyers’ astuteness, the government attempts to justify — on the grounds of expediency — subpoenaing defense counsel before a grand jury. We balance here the aim of law enforcement officials to present evidence before a grand jury against the right of a suspect target — in this case an unsavory Mafia figure — to have the attorney of his choice represent him in our adversary judicial system. At issue is not whether the government may subpoena a lawyer, but whether the prosecutor must first show a need for the lawyer’s testimony before it subpoenas him. To forge ahead without a showing of need may rid society of some criminals, yet of greater concern is the fact that when the government deems it sufficiently expedient, perhaps other rights — established in long hard-fought legal battles — may now be jeopardized. Further, not requiring a demonstration of need will permanently damage the attorney-client relationship and produce the same net result as that gained by throwing the baby out with the bath water.

Because requiring defense counsel to appear before the grand jury without any showing of need violates the Sixth Amendment right to counsel in this case and the Fifth Amendment Due Process Clause in all cases, I respectfully dissent. Additionally, regardless of any constitutional considerations, for practical reasons applying specifically to this case, I believe the district court abused its discretion in not quashing this subpoena under its supervisory powers under Fed.R.Crim.P. 17(c).

CONSTITUTIONAL ARGUMENTS

Before beginning an analysis of the Sixth and Fifth Amendments in this context, it is of help to discuss the historical function and power of the grand jury. That body’s importance and the breadth of its investigative powers are deeply ingrained in our history. United States v. Mandujano, 425 U.S. 564, 571, 96 S.Ct. 1768, 1773, 48 L.Ed.2d 212 (1976). The Fifth Amendment guarantees that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury_” Grand juries serve a dual function. They act as investigators weighing the sufficiency of evidence required for an indictment and as guardians of the public protecting it against arbitrary and oppressive government action. To accomplish its investigative function, the grand jury has been given broad power to compel the production of “every man’s evidence”. United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973); see Branzburg v. Hayes, 408 U.S. 665, 682, 92 S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972). But, its broad power is not limitless. It may not obtain evidence in violation of a valid privilege established under the Constitution, statute or common law United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). When a grand jury subpoena infringes either upon a constitutionally protected interest or a valid common law privilege, a reason exists to require a preliminary showing of need.

I SIXTH AMENDMENT

A. Law Governing Sixth Amendment Right to Counsel

The Sixth Amendment right to counsel has been a cornerstone of our judicial system since before the adoption of the federal Constitution and the Bill of Rights. See Powell v. Alabama, 287 U.S. 45, 61-64, 53 S.Ct. 55, 61-62, 77 L.Ed. 158 (1932). The right to counsel is of such critical importance to our adversary process that it cannot be denied without violating those fundamental liberties which form the base of our civil and political institutions. Id. at 67, 53 S.Ct. at 63 (quoting Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926)).

Provided the right has attached, a defendant is protected by the right to counsel whenever necessary to assure a meaningful defense, see United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967), and its scope guarantees a defendant the right to be represented by counsel of his own choice. “It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell, 287 U.S. at 53, 63 S.Ct. at 58; United States v. Curcio, 694 F.2d 14, 22-23 (2d Cir.1982); United States v. Flanagan, 679 F.2d 1072, 1075 (3d Cir.1982), rev’d on other grounds, 465 U.S. 269, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). The right to counsel of one’s choice is of constitutional dimension and is “part and parcel of the right” to assistance of counsel expressly guaranteed. Curcio, 694 F.2d at 26.

The right is not absolute. It does not attach until adversarial judicial proceedings are commenced against a defendant, either by way of a formal charge, preliminary hearing, indictment, information, or arraignment. Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). The fact that a person is the subject of a grand jury investigation is not sufficient to trigger his Sixth Amendment right to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Vasquez, 675 F.2d 16, 17 (2d Cir.1982) (per curiam). Yet it prohibits the arbitrary disqualification or dismissal of a defendant's chosen attorney, and allows that defendant a fair opportunity to secure counsel of his choice. Flanagan, 679 F.2d at 1075; Davis v. Stamler, 650 F.2d 477 (3d Cir.1981); United States v. Dolan, 570 F.2d 1177 (3d Cir.1978). A defendant’s right to choose his own counsel may not be obstructed unnecessarily. See Davis, 650 F.2d at 479.

B. Effect of Defendant’s Indictment on Related Charges to his Right to Counsel on all Charges

Colombo’s intervening indictment on the non-RICO charges, subsequent to the panel’s decision, has caused his Sixth Amendment right to counsel now to attach, Kirby, 406 U.S. at 689-90, 92 S.Ct. at 1882, and that right may not be obstructed arbitrarily. When defense counsel is served with a subpoena after his client has been indicted, the government must make a showing of need that will justify the intrusion on the attorney-client relationship. In United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir.1975), cert. denied, 424 U.S. 942, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976), we held that to call the government’s counsel as a trial witness can be justified only by a showing of compelling and legitimate need.

The Supreme Court has just recently reasserted this principle in Maine v. Moulton, — U.S. —, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), by holding that once an accused’s right to counsel has attached for one crime, that right cannot be violated even if the government is investigating a separate crime. To allow the government to do otherwise would cause a dilution of the protections guaranteed by the Sixth Amendment by limiting their scope.

Once the right to counsel has attached and been asserted, the state must of course honor it (footnote omitted). This means more than simply that the state cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance. We have on several occasions been called upon to clarify the scope of the State’s obligation in this regard, and have made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.

Id. at —, 106 S.Ct. at 484-85. (emphasis added).

In Moulton the defendant had been charged with automobile theft. He retained a lawyer and pleaded not guilty. Defendant met with his co-defendant, Col-son, and allegedly suggested to Colson that the two kill the State’s primary witness against them. Colson went to the police, confessed to the theft charge, and agreed to testify against defendant and act as a government informant. The police equipped Colson with a wire transmitter to record his next meeting with defendant, at which defendant made several incriminating statements. The Court suppressed the statements as made in violation of defendant’s Sixth Amendment right to counsel. It held that the Sixth Amendment right to rely on counsel as a “medium” between a defendant and the government was violated by the state’s knowing exploitation of an opportunity to confront the accused without counsel being present. The incriminating statements could not be used in a trial for auto theft, because defendant had been indicted on those charges when the statements were made, and his right to counsel had already attached.

In seeking evidence pertaining to pending charges, however, the Government’s investigative powers are limited by the Sixth Amendment rights of the accused. To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah_ Consequently, incriminating- statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the state violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.

Id. at —, 106 S.Ct. at 489.

The incriminating statements made by defendant could be admitted in a subsequent trial on his suggestion to murder a State’s witness, since that charge was not pending when the statements were made, and defendant therefore had no right to counsel as to an unindicted offense. Id.

Colombo has now been indicted for four related offenses. He has not been indicted on the RICO charge, which is also a related crime. His Sixth Amendment rights have therefore attached with regard to the pending charges. If attorney Slotnick is subpoenaed without a showing of need and subsequently disqualified, as a plain matter of common sense, he will be disqualified from representing his client for all purposes, including those offenses for which he has already been indicted. Thus, since defendant Colombo’s Sixth Amendment rights to counsel have attached with regard to the four pending charges, the government’s action in subpoenaing his lawyer on a related charge will deprive him of his choice of counsel to represent him for those indicted offenses without any showing of need. In this way defendant’s Sixth Amendment rights are unconstitutionally diluted by the government’s actions.

The government states that the subpoena was not served on attorney Slotnick to secure evidence for trial on the related charges and, it argues, because it had no pre-existing intent to impinge on Colombo’s Sixth Amendment right to counsel, and did not use the grand jury for the dominant purpose of preparing an already pending indictment for trial, the intervening attachment of a constitutional right has no significance. See United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 51, 13 L.Ed.2d 50 (1964). Concededly, a grand jury may legitimately continue an investigation of criminal conduct after returning an indictment on related offenses, even if the result of this procedure is to develop additional information about the crimes for which it has already indicted a defendant, see United States v. Braasch, 505 F.2d 139, 147 (7th Cir.1974), cert. denied sub nom., Barry v. United States, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). But when a defendant is arbitrarily deprived of counsel’s representation for indicted offenses, then the Sixth Amendment has been violated. This conclusion is not altered by the fact that the government may have had an alternative, legitimate reason for following through with the subpoena and waiting to indict Colombo on the RICO charge.

The majority avoids this Sixth Amendment issue by itself finding a governmental need for fee information from attorney Slotnick and balancing it against the defendant’s right to counsel, even though the government did not make this showing before the district court which, therefore, made no finding on the issue of need. The district court refused to quash this subpoena because Colombo had not been indicted, and the district judge believed defendant was not entitled to a governmental showing of need. Now that an indictment has been returned, a need showing is plainly required. It is not the role of any court to make a factual finding of need outweighing significant Sixth Amendment interests until the government meets its burden by placing into evidence some proof of need. And, it is plainly not an appellate court’s function in any case to make these factual findings. The majority view violates Colombo’s Sixth Amendment rights in this case.

II FIFTH AMENDMENT

A. Due Process Right

More significantly, the prosecution’s failure to make a showing of need also violates Colombo’s Fifth Amendment rights. One of the most fundamental guarantees of a fair trial protected by the due process clause is that an - accused may not be convicted unless he has been accorded the right to the - assistance of counsel. See Powell, 287 U.S. at 67-68, 53 S.Ct. at 63-64; Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). As discussed, the Sixth Amendment guarantees to criminal defendants the right to the assistance of counsel, which includes the right to obtain counsel of one’s choice and to have a reasonable opportunity to consult with counsel. See Chandler v. Fretag, 348 U.S. 3, 9-10, 75 S.Ct. 1, 4-5, 99 L.Ed. 4 (1954). The Due Process clause of the Fifth and Fourteenth Amendment requires the same opportunity. “[D]ue [P]rocess demands that the defendant be afforded a fair opportunity to obtain the assistance of counsel of his choice to prepare and conduct his defense. The constitutional mandate is satisfied so long as the accused is afforded a fair or reasonable opportunity to obtain particular counsel and so long as there is no arbitrary action prohibiting the effective use of such counsel.” United States v. Fernandez, 576 F.Supp. 397, 402 (E.D.Tex.1983).

The rights to a fair trial and choice of counsel embodied in the Due Process clause of the Fifth Amendment may, in some circumstances, come into play at a point earlier in time than the Sixth Amendment right to counsel. In such cases, the Fifth Amendment protects a defendant even before adversarial judicial proceedings are commenced. Fundamental guarantees of due process obey no timetable; they neither attach nor cease to apply at a particular moment. Instead, due process rights are violated at the point when an individual’s rights to a fair trial and the choice of counsel are unduly, unfairly and unnecessarily obstructed without explanation or some showing of need to warrant that deprivation. When a grand jury target is arbitrarily deprived of the right to counsel of his own choice, such that he will be unfairly deprived of the right to the effective assistance of counsel at the trial itself, the due process clause has been violated, regardless of whether or not an indictment has been returned against the target. That is what occurred in this case.

B. Support in Precedent for Application of Fifth Amendment

In Kirby, the Supreme Court held that the Sixth Amendment right to counsel did not attach at the time of a pre-indictment lineup and refused to impose a per se exclusionary rule on all identifications made during the course of that lineup. 406 U.S. at 690-91, 92 S.Ct. at 1882-83. Nonetheless, the Court took pains to state that occasions may arise during the course of a criminal investigation when police identification procedures are so unnecessarily suggestive or conducive to irreparable mistaken identifications that, even though the Sixth Amendment has not yet attached, the Due Process Clause of the Fifth and Fourteenth Amendments would mandate the exclusion of these identifications. Id. This view strongly suggests that the right to a fair trial may be constitutionally impaired by government activities occurring prior to the commencement of formal judicial proceedings. When lack of counsel works a deprivation on a criminal suspect or target so prejudicial as to later deprive him of a fair trial, Kirby stands for the proposition that evidence so obtained will be excluded. In this case, where the potential harm posed prior to indictment is the later deprivation of a defendant’s choice of counsel, the abuse cannot be remedied merely by applying an exclusionary rule, as Kirby indicates. Rather, to warrant the almost certain disqualification of the chosen attorney and the inevitable breakdown in the attorney/client relationship, the government must first prove that such loss is outweighed by its need for the information. A failure to make this showing deprives defendant of his due process rights to a fair trial.

This reading of Kirby finds support in earlier Supreme Court precedent and in other federal courts. For example, in Powell the court held in a capital case that where the defendant is unable to employ counsel and is incapable of making his own defense, then counsel must be assigned him as a necessary requisite of due process. 287 U.S. at 71, 53 S.Ct. at 65. Denial of some of the personal rights safeguarded by the first eight amendments would be a denial of due process “not because those rights are enumerated in the first eight amendments, but because they are of such a nature that they are included in the conception of due process of law.... the right to the aid of counsel is of this fundamental character.” Id. at 67-68, 53 S.Ct. at 63-64.

Thus, the Supreme Court in Powell made clear the right to counsel considered in the context of due process is not always synonymous with the dictates of the Sixth Amendment right to counsel. Other courts have reached similar conclusions. See Flanagan, 679 F.2d at 1075 (violations of an accused’s right to counsel are encompassed within the concept of due process, and the right to be represented by counsel of one’s choice arises not only from the Sixth Amendment but also from the due process clause of the Fifth Amendment); Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir.1962) (“appointment of counsel may sometimes be mandatory even in those areas in which the Sixth Amendment does not apply.”); Amusement Devices Ass’n v. State of Ohio, 443 F.Supp. 1040, 1053 (S.D. Ohio 1977) (the command of the Due Process Clause of the Fourteenth Amendment is not limited, in area of the right to assistance of counsel, to the bare confines of the Sixth Amendment).

In another context, which has relevance to the present case, Justice Frankfurter wrote:

The ‘due process of law’ which the Fourteenth Amendment exacts from the States is a conception of fundamental justice, (citations omitted) It is not satisfied by merely formal procedural correctness, nor is it confined by an absolute rule such as that which the Sixth Amendment contains in securing to an accused the ‘Assistance of Counsel for his de-fence.’

Foster v. Illinois, 332 U.S. 134, 136, 67 S.Ct. 1716, 1717, 91 L.Ed. 1955 (1947). Because notions of due process are embodied within the Sixth Amendment right to counsel, the right to counsel emanating from the due process clause only attains any independent significance and merits special discussion in those situations where, as here, the Sixth Amendment guarantees do not apply.

Further, the right to counsel at trial, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and on appeal, Evitts v. Lucey, — U.S. —, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), includes the right to effective assistance of counsel. The core purpose is to guarantee a genuine adversary process. The Fifth Amendment guarantees a fair trial, but such is not limited to the rights of speedy and public trial, impartial jury, confrontation, compulsory process, the right to be informed of the nature and cause of the accusation made, and assistance of counsel. Fair trial envisions defense counsel playing a critical role in the adversarial system thereby furthering a just result. When the government through its actions unreasonably and unnecessarily interferes with counsel’s ability to act independently as a true adversary, it has interfered with and tilted the delicate balance of that process. When the result of government activities prejudices the adversarial process, then the constitutional guarantee of a fair trial is violated.

Ill FIFTH AMENDMENT CONCERNS

Several consequences result from compelling attorney Slotnick to testify before the grand jury. The government argues and the majority agrees that unless it is first determined that Mr. Slotnick’s testimony is admissible at trial and that he will be compelled to testify, defense counsel cannot be disqualified. To prevent disqualification, a defendant is entitled to have the government make a showing of need which, the government says, will be balanced against the defendant’s right to counsel. So long as the attorney is not disqualified priojf to the preliminary hearing at which the showing of need is made, the government concludes that the pre-in-dictment hearing which the panel decision required furnishes no more protection than is required at the preliminary hearing.

This argument ignores the law as well as human experience and logic. By the time of the preliminary hearing, the relationship between an attorney and his client will have been irreparably strained. Analysis of The Code of Professional Responsibility and-accompanying case law demonstrates that this proposition is incorrect for another reason. An attorney may be ethically disqualified after giving grand jury testimony adverse to his client’s interests, even before a preliminary hearing determines whether that testimony will be used at trial. The attorney-client privilege is reviewed briefly because it sheds light on that issue.

A. Attorney-Client Privilege

One of the protected common law privileges that would serve to quash a grand jury subpoena is that of a client and his attorney. It is the oldest privilege and, according to Professor Wigmore, dates back to the early 16th century. 8 J. Wigmore, On Evidence § 2290 (McNaughton rev.ed.1961). The privilege first arose as an exception to the testimonial compulsion for every man’s evidence and is today a common law privilege recognized under Rule 501 of the Federal Rules of Evidence.

Although aware that defense counsel’s presence at the grand jury to testify as to client identity and fee information is not within this privilege, In re Shargel, 742 F.2d 61, 62 (2d Cir.1984); see Colton v. United States, 306 F.2d 633, 637-38 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); United States v. Pape, 144 F.2d 778, 782 (2d Cir.), cert. denied, 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602 (1944), it is plain that enforcement of the subpoena will subvert some of the most vital concerns that the attorney-client privilege aims to safeguard. Full and complete disclosure by a client to an attorney is essential to the attorney’s acting justly and effectively in the client’s behalf. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). As an old English case put it: “A man who seeks advice, seeks it because he believes that he may do so safely; he will rarely make disclosures which may be used against him.” Annesley v. Earl of Anglesea, 17 How.St.Tr. 1129, 1225, 1241 (Ex.1743) (cited in 8 Wigmore § 2291 at 545-46). No attorney can represent a client effectively, unless the client feels free to speak frankly to the advocate without fear that such disclosures will be used against him.

The protection of fundamental ethical and moral values is also safeguarded by the attorney-client privilege. Lay people caught in the labyrinth of complex criminal laws need lawyers to confide in, consult with and guide them. The privilege exists to encourage full and truthful communication between attorneys and their clients and “recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981).

The information sought in this case is not privileged. Yet compelling an attorney to testify against his client as to unprivileged information — whether or not any governmental need for that testimony exists — so disrupts the human feelings of trust and confidence essential to the existence of the attorney/client relationship as to later inhibit the client from freely confiding in his attorney information that is in fact privileged.

B. Consequences of Disrupting the Attorney-Client Relationship

The duty of undivided loyalty of counsel to his client, traditionally considered an essential element in according a client his due process rights, is questioned by the client whenever his attorney is summoned before the grand jury — even if only to assert valid privileges — during the course of that representation. In re Grand Jury Investigation, (Sturgis), 412 F.Supp. 943 (E.D.Pa.1976). The power to hale an attorney to testify before the grand jury investigating his client — regardless of whether the government has good grounds to believe the attorney possesses any relevant information — gives the government unilaterally the power to destroy that relationship. Once destroyed, a post-indictment preliminary hearing cannot repair the loss of trust brought about after an attorney has appeared as a prosecution witness before the grand jury. The loss is like that suffered by Humpty-Dumpty — all the King’s horses and all the King’s men could not put Humpty-Dumpty together again.

Thus, foremost among the consequences of subpoenaing an attorney before the grand jury is that it drives an insurmountable wedge between the attorney and his client, see In re Grand Jury Matters, 751 F.2d 13, 19 (1st Cir.1984). Forcing a client to choose between the Scylla of relying on present counsel who has gone before the grand jury and the Chrybdis of finding new, untested counsel puts a client unfamiliar with grand jury proceedings in a dilemma where whatever the choice made — it is an unsatisfying one. The result for the subpoenaed lawyer is equally inadequate. He has the so-called choice of either resisting disclosure with contempt possibilities — thereby risking his legal career — or resigning from the case.¹

The negatives of these stygian alternatives ultimately will undermine confidence in the fairness and impartiality of the criminal justice system. Creation of all these untoward problems for the client and his counsel produces a Kafkaesque result that strikes directly at one of the bedrock values of the Fifth Amendment whose aim, as Justice Powell observed, “is to convey to the individual a feeling that the government has dealt with him fairly....” Carey v. Piphus, 435 U.S. 247, 262, 98 S.Ct. 1042, 1051, 55 L.Ed.2d 252 (1978). The failure to show need for the attorney’s testimony generates not a “feeling ... that justice has been done” Anti-Fascist Committee v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 648-49, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), but rather that injustice has become the rule.

C. Impact of the Code of Professional Responsibility

DR 5-102(33) of the Code of Professional Responsibility provides that once a lawyer learns he may be called as a witness other than on behalf of his client, he may continue that representation only until it becomes apparent that his testimony may be prejudicial to his client. Decisional law indicates that 5-102(13) should not be a device to disqualify an opponent’s attorney simply by calling him as a witness. In a close ease, an attorney must respect his client’s interests and resolve his doubts in favor of withdrawing as an advocate. See Emerald Green Homeowners’ Association, Inc. v. Aaron, 90 A.D.2d 628, 628-29, 456 N.Y.S.2d 219 (3rd Dept.1982) (attorneys should withdraw at as early a stage in the proceedings, as possible to enable their clients to secure new counsel). A committee of The American Bar Association in Formal Opinion 339 (January 31, 1975) found that it is seldom, if ever, that an adversary or other party would call the attorney for testimony within the exceptions set forth in DR. 5-101(B)(l), (2), or (3). And, if the testimony would be adverse to the client, there would be very few situations in which accepting employment as trial counsel would be justified under DR 5-101(B)(4).

If the government prevails in this case, it signals to an attorney that he might be called to testify about fee information if at all relevant to the government’s case. Without a pre-indictment showing of need, no attorney would know whether his .fee testimony would be important to the government’s case, but he would know that his testimony may be prejudicial to his client and, in the client’s best interests, should probably disqualify himself prior to the preliminary hearing. Hence, due process concerns mandate that the government make its showing of need before devastating a defendant’s ability to conduct its defense. It is not intended to make privileged those conversations or documents that the law clearly considers to be non-privileged.

Moreover, the government makes no convincing arguments why it cannot make its showing of need earlier in time. It claims that it will not know what it needs until an indictment has been returned. This contention is somewhat less than credible because there is no reason why the attorney could not be subpoenaed last by the grand jury, after all other government witnesses have testified, and at a time when the government has a better sense of the evidence it lacks to make out an indictment.-

Common' sense dictates such a conclusion. If a showing of need is made before the attorney testifies and the government satisfies a need requirement, then an attorney possessing incriminating- evidence should disqualify himself from representation both because the likelihood of the attorney being required to testify at trial is strong, and because early withdrawal affords defendant an opportunity to secure new counsel at a time early enough to be meaningful. If a showing of need is not required until a preliminary hearing, counsel’s disqualification occurs late in the proceedings, and a new counsel’s ability to prepare is curtailed.

PRACTICAL CONSIDERATIONS

Viewed practically, this is not an appropriate case to decide whether the government must make a pre-indictment showing of need before it compels an attorney for a target of a grand jury’s investigation to appear before it and testify to unprivileged information. Under the unusual facts before it the district court should have exercised its supervisory powers under Fed.R. Crim.P. 17(c) and quashed this subpoena. Two reasons compel this conclusion. The government’s attorney conceded that counsel Slotnick’s testimony would almost certainly disqualify him from representation, and the approval of the subpoena by this Court would how serve to condone a violation of the government’s newly-published Guidelines for issuing subpoenas. Hence, the failure of the district court to quash this subpoena constituted an abuse of discretion, which should be reversed. See In re Grand Jury Matters, 751 F.2d at 18.

A. Concession by the Government

The government conceded that subpoenaing the target’s attorney would disqualify him. On three occasions — in oral argument before the district court, by affidavit, and in its brief on appeal — the prosecutor acknowledged that the result of its issuing a subpoena to Mr. Slotnick would cause a conflict that would almost certainly prevent him from further representing Colombo. The original panel. relied on the government’s concession, to conclude that under such a circumstance, the district court abused its discretion by refusing to quash a subpoena under Fed.R.Crim.P. 17(c).

When the government by that concession indicated its knowledge that its action would thereby render meaningless Colombo’s right to counsel, it is unsound legally and logically to say that Colombo’s Sixth Amendment right to counsel was not at least implicated at the grand jury stage, as ‘ Chief Judge Feinberg succinctly observes, even if Colombo had not yet been indicted on the other now pending charges. The panel majority believed that under the court’s supervisory powers the government should be required to make a showing of need.

B. Government Ignored Its Own Guidelines

The government itself recognizes the dangers posed to the attorney-client relationship when it .summons an attorney to testify before the grand jury. To remedy that problem, the Justice Department has adopted internal guidelines requiring reasonable need and no other reasonably alternative source before issuing a subpoena. Those Guidelines, set forth in 9 U.S. Attorneys’ Manual 9-2.161(a) 37 Cr.L. 2100 (May 1, 1985), provide in pertinent part: “B. [a]ll reasonable attempts shall be made to obtain information from alternative sources before issuing a subpoena to an attorney for information relating to the representation of a Client.” In a criminal investigation, F.(l) specifies that in approving the issuance of a subpoena “[tjhere must be reasonable grounds to believe ... that the information sought is reasonably needed for the successful completion of the investigation,” and in F.(3) it is stated that “[a]ll reasonable attempts to obtain the information from alternative sources shall have proved to be unsuccessful.” Finally, in F.(5) the Guidelines require that subpoenas “shall be narrowly drawn.”

A brief summary illustrates that here those Guidelines specified in F.(l), F.(3) and F.(5) were completely ignored: (1) the subpoena was drawn broadly to include “any and all records ... not limited to ... fees ... received by Slotnick.”; (2) at oral argument the government argued that since a lawyer representing a client provides the best evidence relating to fee information, no alternative source need be explored; (3) the Guidelines in F.l specifically require that the information sought must be shown to be reasonably needed. Obviously, courts cannot safely rely on the government’s internal monitoring to protect rights, jeopardized by the issuance of sqch subpoenas. Perhaps in recognition of the unreliability of such internal monitoring, Massachusetts’ highest court, in October, 1985 made it unprofessional conduct for a prosecutor to subpoena an attorney representing a client before a grand jury without prior judicial approval. National Law Journal, November 4, 1985, at 3.

C. Exercise of Supervisory Power

Under Rule 17(c) a court “may quash or modify the subpoena if compliance would be unreasonable or oppressive.” Broad authority exists for a court to exercise its 17(c) supervisory power even though the property subpoenaed is not Subject to a statutory, constitutional, or common law privilege. In Re Grand Jury Matters, 751 F.2d at 17-18.

Courts have used their supervisory powers to quash grand jury subpoenas when issued to an attorney or to a potential target, when no showing of relevance or need was supplied by the government. See id.; In Re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, 1012 (4th Cir.1982) vacated and withdrawn when grand jury indicted target and he became fugitive, 697 F.2d 112 (4th Cir.1982) (en banc); In Re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93 (3d Cir.1973); In re Grand Jury Matters, 751 F.2d at 13 (subpoenas concerning fee arrangements held invalid when served on criminal defense attorneys whose clients had cases pending in state court and were under investigation in federal court). Under the circumstances of the instant case the issuance of the subpoena was unreasonable because of the recited government concession, and the utter disregard by the government. of its own Guidelines. ,

CONCLUSION

Accordingly, I vote to reverse the order of the district court, quash the subpoena, and direct the government to make the requisite showing of:relevancy and need before it subpoenas attorney Slotnick.

1 . In a recent survey conducted by William J. Genego, a professor of law at the University of Southern California Law Center, 80 percent of 1,648 responding members of the National Association of Defense Lawyers said that they believed government subpoenas issued to them relating to fees were being served solely to discourage zealous advocacy on behalf of criminal defendants. These subpoenas are being aimed at the most experienced and most successful criminal defense lawyers in order to prevent them from representing suspected white-collar criminal defendants. As predicted, this technique has proved effective since most subpoenaed lawyers end up withdrawing from representation before being disqualified or the client drops the lawyer because he has lost trust in his chosen advocate. N.Y. Times, November 21, 1985, at A20, col. 1.

The devastating result of this government practice has been that 14 percent of those responding lawyers said they had declined certain cases — notably those involving drug smuggling or organized crime — for fear of later disqualification or dismissal by the client. Forty-six percent said they have revamped their practices to refuse cases in which a defendant wants to pay cash or in which a third-party is paying the fee. The New York City Bar’s Committee on Criminal Advocacy recommended on November 25, 1985 more stringent guidelines than those adopted last spring by the Department of Justice. These guidelines would require that subpoenaed material be relevant and material, as well as "essential” to a government investigation. Prosecutors, under this proposal, would be required to file “Affidavits of Necessity,” before seeking lawyer subpoenas, to ensure there is no other source for the information. National Law Journal, December 9, 1985, 3, 8.