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IN RE DOE

March 5, 1985

In re Application of John DOE, Esq., Petitioner, For an Order Pursuant to Fed.R.Crim.P. 17 Quashing Subpoenas Issued by the United States of America, Respondent.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

 This is a motion pursuant to Fed.R.Crim.P. 17 to quash three subpoenas served on petitioner, an attorney representing individuals Richard Roe and John Smith, and XYZ Realty, Inc. For the reasons developed below, the motion is denied.

 Facts

 A grand jury is investigating possible violations of the Internal Revenue Code by Roe and Smith. Petitioner represented Roe in 1978 when Roe purchased property in Rockland County, New York. He represented Smith in 1980 when Smith purchased property in New Jersey. Petitioner also represented XYZ Realty, Inc. in 1983 when that company purchased property in Bronx County, New York.

 Petitioner challenges three subpoenas. The first, returnable February 28, 1984, directs petitioner to produce all business records of XYZ Realty, Inc. from 1978 through 1982, including corporate minutes, financial statements, records of loans, banking records and corporate ledgers. The second, returnable September 25, 1984, directs petitioner to testify and to produce records relating to the purchase and sale of the Rockland, New Jersey and Bronx properties, as well as records of his fee arrangements with his clients. The third subpoena, returnable November 27, 1984, directs petitioner to testify before the grand jury regarding his knowledge of the business affairs of XYZ Realty, Inc.

 Discussion

 Petitioner makes two arguments. First, he claims a privilege not to comply with the subpoenas based on his clients' Fifth Amendment privileges against self-incrimination. Second, petitioner claims the records and testimony sought are protected by the attorney-client privilege.

 1. The February 28, 1984 Subpoena

 The first subpoena directs petitioner to produce "any and all documentation or records in your possession or subject to your control in regard to [XYZ] Realty." Because this subpoena commands only production of corporate records, it is beyond cavil that neither petitioner nor his clients have a Fifth Amendment privilege with respect to these records. Bellis v. United States, 417 U.S. 85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974); United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944). If any privilege exists with respect to this subpoena, it must be based on the attorney-client privilege.

 Because this is a federal grand jury proceeding, the federal common-law rule of attorney-client privilege applies. Fed.R.Evid. 501; In re Katz, 623 F.2d 122, 124 n. 1 (2d Cir.1980). The privilege attaches when: 1) the client seeks legal advice from a professional legal advisor acting in that capacity; 2) communications relating to that purpose are made in confidence by the client; 3) at the client's instance the communications are permanently protected from disclosure by himself or by the legal advisor; and 4) the privilege has not been waived. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir.1984). "The privilege is triggered only by a client's request for legal, as contrasted with business, advice." Id. at 1037 (citing In re John Doe Corp., 675 F.2d 482, 488 (2d Cir.1982).

 The burden of establishing the privilege is on petitioner. In re Katz, supra, 623 F.2d at 125. Petitioner's original set of papers entirely failed to meet this burden. After oral argument petitioner was given several weeks to submit a more detailed affidavit and to deliver for in camera inspection the documents that would be responsive to this subpoena. The affidavit subsequently filed does not meet this burden. The documents submitted are banking records, responsive to the subpoena only in part, and, because they are solely business papers, are clearly not privileged. Accordingly, the motion to quash this subpoena is denied.

 2. The September 25, 1984 Subpoena

 The second subpoena directs petitioner to testify and to bring with him "[a]ny and all documentation pertaining to the following transactions as attorney representing [XYZ Realty, John Smith and Richard Roe] including but not limited to" (1) cancelled checks received in 1983 for sale of the Bronx property by XYZ Realty; (2) all details of the purchase of the Bronx property by XYZ Realty; (3) amounts and dates of fees received from Smith and Roe for the closing of the New Jersey ...


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