The opinion of the court was delivered by: FRANKEL
Arthur Kinoy is a well-known practitioner and professor of law. He has been subpoenaed to appear before a grand jury inquiring into possible violations of 18 U.S.C. § 1071, which proscribes concealment of persons subject to arrest warrants or similar process.
He says, and the United States Attorney confirms, that the grand jury seeks to question him concerning the whereabouts of his daughter Joanne, who, according to government counsel, "is known to have been closely acquainted with an individual believed upon reliable information to have recently harbored and concealed from arrest a fugitive defendant named in a pending indictment in this District."
Mr. Kinoy moves to quash the subpoena contending for a variety of reasons that he may not lawfully be required to appear before the grand jury. This is, of course, an extreme position; with the rarest of possible exceptions, nobody is immune from such appearances whether or not particular questions put by the grand jury to the witness who has appeared may give rise to valid claims of privilege. Blair v. United States, 250 U.S. 273, 281, 39 S. Ct. 468, 63 L. Ed. 979 (1919); United States v. Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 94 L. Ed. 884 (1950); cf. United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968). Having examined Mr. Kinoy's extraordinary claim, the court concludes that it cannot be sustained.
1. Mr. Kinoy points out, and the court is aware, that he has performed notable service for various individuals and groups seeking enforcement of federal civil rights or espousing departures from political orthodoxy. Because of this, he says, invoking the recent decision of the Ninth Circuit in Caldwell v. United States, 434 F.2d 1081 (1970), cert. granted 402 U.S. 942, 91 S. Ct. 1616, 29 L. Ed. 2d 109, his very appearance before a grand jury will have a "chilling effect" upon First Amendment rights in that "it will cause these groups to lose confidence" in him "whether or not [he] is actually forced to betray legal confidences."
This breaks a long bow. The Caldwell case, reaching borders still to be tested, concerns the special situation of a journalist with unique access to the Black Panther Party, where the journalist was subpoenaed before a grand jury "engaged in a general investigation of the Black Panthers and the possibility that they are engaged in criminal activities contrary to federal law." 434 F.2d at 1082. The Ninth Circuit, when it held Caldwell entitled not to appear before the grand jury, limited its result sharply to cases like that of the journalist before it, cautioning that cases of other journalists, affecting groups other than the Black Panthers, could well call for different treatment. Id. at 1090.
The distinctions between that case and this one are patent. Unlike the journalist, Mr. Kinoy as an attorney is not merely permitted, but bound, to preserve confidences of his clients, before the grand jury and elsewhere. Nothing in the First Amendment and nothing shown here indicates a need for totally immunizing him against grand jury subpoenas.
Mr. Kinoy and attorneys associated with him have filed reply affidavits (and have offered to supplement these with live testimony) attesting that their "unpopular clients" rely heavily upon counsel to safeguard their confidential communications. But this has been thought generally to be the way with clients, even popular ones, and the attorney-client privilege embodies the thought. Lawyers, of all people, should be supposed competent to enforce in the grand jury room their legitimate duties of confidentiality. They are obliged at the same time, not less than others, to give their non-privileged knowledge to the grand jury.
If lawyers for unpopular groups are automatically exempted from grand jury appearances, logic could compel far more sweeping, and intolerable, exemptions. Anyone who is not a lawyer, but has learned confidential things from such organizations, would presumably cause "chills" when he went before the grand jury. The concern would have more solid basis than it has here because the non-lawyer could not normally invoke a privilege to protect his informants. But there is no right on that basis not to appear, and Mr. Kinoy's case in this respect is no better than that of anyone else.
It is not to be questioned, of course, that any kind of exertion of governmental power against people or groups exercising First Amendment freedoms could exceed the limits of constitutionality. This could be true of regulation in the labor-management field, cf., Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946); National Labor Relations Board v. Virginia Power Co., 314 U.S. 469, 62 S. Ct. 344, 86 L. Ed. 348 (1941); or of the taxing power, cf., Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936); Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958); and it could undoubtedly turn out to be the case if the powers of grand juries were perverted or carried to excess. This does not imply, however, that groups, even unpopular groups, exercising First Amendment rights are totally exempt from government action. There has been a number of cases where the power of investigatory agencies has been limited because of the effects on First Amendment freedoms, see, e.g., Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963); cf., N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). Giving the fullest possible reading to what Mr. Kinoy says and offers to prove about a "chilling effect" in this case, the relation between the grand jury investigation and the infringement of First Amendment rights is so tangential and indirect that it cannot possibly justify forbidding the grand jury from even calling Mr. Kinoy as a witness. The investigation of the grand jury is designed to elicit from this witness narrow and clearly defined information, relating to a specific violation of law, from a person likely to have the information, and in circumstances where "less drastic" means for producing it have failed.
Finally, before leaving the broad First Amendment contentions presented in this case, it is fitting to observe that they have a quality of uncomfortable abstractness and unreality considering the specific circumstances involved. All are agreed that the only inquiry the grand jury wishes to make of Mr. Kinoy is as to where his daughter can now be found. As noted below, this may raise some questions (here decided adversely to Mr. Kinoy) concerning his asserted role as lawyer for his child. Apart from those questions, however, this is an odd context in which to test the limits of the theory announced in Caldwell v. United States, supra. Whatever concerns may inhere in the activities and relationships of groups and organizations in their dealings with attorneys, they are scarcely illuminated by the narrow facts of the present contest concerning a man and his daughter.
2. Mr. Kinoy says he cannot be asked about his daughter because he is her lawyer as well as her parent, so that the attorney-client privilege bars compelling his appearance. His papers in support of this contention are remarkably vague and insufficient. He recalls that he told F.B.I. agents who questioned him:
"that my daughter Joanne was a client of mine as well as my child and that I would not answer any questions concerning her as her lawyer."
Later on, he remembers saying about the same thing once more:
"In my office, they repeated essentially what had been said on the first visit. In turn, I repeated my statement that I was Joanne's lawyer as well as her father and that it was not proper or permissible for me, as an attorney, to discuss anything concerning a client with the FBI, particularly since they had informed me that a criminal investigation was in progress."
But it is familiar law of course, not questioned by Mr. Kinoy or his array of counsel in this proceeding, that not everything asked of a lawyer about his client is privileged, and that not everyone so styled by a lawyer is a "client." See, e.g., Colton v. United States, 306 F.2d 633, 636-37, 638 (2d Cir. 1962); United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950); McCormick on Evidence §§ 92, 95. And when a father is being asked where his daughter is, it is by no means self-evident that his knowledge on that subject comes to him via a privileged communication rather than in his role as parent. (It is assumed, of course, for the present subject that a non-lawyer father would have to answer the question. But compare Mr. Kinoy's claim of a parent-child privilege, considered below.)
When the court observed upon oral argument of the motion to quash that Mr. Kinoy's papers failed on their face to state a valid claim of attorney-client privilege, his counsel asked leave to supply the missing foundation by putting Mr. Kinoy then and there on the witness stand. The court questioned the propriety of this, where the motion had been made on a thick sheaf of papers and the effect of this extended proceeding was (and is) to postpone entirely the mere appearance of the subpoenaed witness before the grand jury. ...