Editor's Note: The Lawyers Column has resumed. It is being written by Ruth Marcus, with contributions from reporters in the District, Maryland and Virginia, and it appears every other Monday. Marcus, who covers legal affairs for The Post, is a lawyer and has been on the Metro staff since 1984.
Should prosecutors be able to call lawyers to testify before grand juries about who is paying their legal fees? About the size of the fees or what the client is using to pay legal bills? About whether they met with their clients on a particular day?
The Justice Department thinks so, and it has been making increasing use of such subpoenas, much to the distress of many criminal defense lawyers.
The government argues that the subpoenas seek important information that is not shielded by attorney-client privilege. For example, said William J. Landers, special counsel to Assistant Attorney General Stephen S. Trott, information about whether one defendant is paying another's legal fees is relevant to show "who's running the criminal enterprise" and "unexplained income."
In a drug case, he said, "The fact that somebody can afford to pay for legal counsel for any number of people would be strong evidence of the fact they were engaged in drug dealing." Landers said the Justice Department issued 147 subpoenas between July -- when it adopted guidelines requiring that Trott approve any such subpoenas -- and December.
Criminal defense lawyers contend that summoning them to testify before grand juries infringes on the attorney-client relationship and pits lawyers against their clients, potentially forcing them to withdraw from the case, breach client confidences, or worse.
"It totally erodes the right of a client to confidentiality," said Barry P. Wilson, a Boston lawyer who was jailed for more than four months last year after being cited for contempt for refusing to answer questions about a client before a federal grand jury in Rhode Island.
In addition, he said, "It also destroys the ability of lawyers to effectively represent their clients. If the lawyer is worried about his or her rear end, how can he or she be representing the client's best interest?"
In a rule that took effect Jan. 1, Massachusetts became the first state to require prosecutors -- both state and federal -- to obtain judicial approval before summoning attorneys to provide evidence about their clients. Under the rule, prosecutors who fail to obtain judicial blessing are subject to disciplinary action including possible disbarment.
Bar groups in several states, including New York, New Hampshire and Pennsylvania, are pressing for measures to limit attorney subpoenas, and two recent developments may spur others to follow.
First, U.S. District Court Judge Rya W. Zobel refused last month to grant a preliminary injunction against the Massachusetts rule, rejecting the government's argument that it violated the Constitution's supremacy clause, under which federal laws and rules take precedence over state enactments.
Zobel said the government had failed to show that the rule "would significantly burden prosecutors or hinder grand jury investigations . . . except, of course, where the grand jury has been receiving evidence which, if it had been brought to the attention of a court, would properly have been suppressed."
Second, the American Bar Association, at its midyear meeting in Baltimore last month, adopted a recommendation that before a lawyer is subpoenaed, a judge must find that the information sought is relevant and not privileged, and that the purpose of the subpoena is "not primarily to harass the attorney."
In light of those actions, Landers said, "I suspect that a number of bar associations will attempt to pass some sort of rule" requiring judicial approval for attorney subpoenas. The Justice Department has asked Zobel to reconsider the ruling, and it will probably appeal if that motion is denied, he said.
Meanwhile, said William F. Weld, the U.S. attorney for Massachusetts, whose office had been issuing more than 50 attorney subpoenas annually, "We're sitting here with subpoenas that we would like to serve but can't because of the rule."
South African Airways, the government-owned airline that was dropped as a client by Covington & Burling last fall, is now represented by Vance, Joyce, Carbaugh, Fields and Crommelin here. Partner Quentin Crommelin Jr., a former aide to Sens. John East (R-N.C.) and Strom Thurmond (R-S.C.), is the airline's lawyer . . . . Ann Macrory, associate director of the Washington Lawyers' Committee for Civil Rights Under Law, this month received the seventh annual Stiller Memorial Award, named for Stuart Stiller, a lawyer killed in an automobile accident in 1979 . . . . Charles H. Roistacher, formerly counsel to U.S. Attorney Joseph E. diGenova, has become executive assistant U.S. attorney. He succeeds Harold L. Cushenberry Jr., who was appointed to a judgeship in D.C. Superior Court.