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IN RE ATTORNEY X

November 12, 1985

IN RE GRAND JURY TESTIMONY OF ATTORNEY X


The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge

Since November 1983 a grand jury in this district has been investigating alleged criminal activities of the Lucchese organized crime family. The government contends that the intervenor, the client of Attorney X (the Attorney), criminally obstructed that investigation. To determine whether the obstruction was intentional the government wishes to compel the Attorney to testify before the grand jury as to what he was told about the investigation by a third person and what he then conveyed to his client. The Attorney and the intvervenor claim that these communications are immune from disclosure under (1) the attorney-client privilege, (2) the joint defense privilege, (3) the work product doctrine and (4) the relevancy and need test referred to in In re Grand Jury Subpoena Served Upon John Doe, Esq., 759 F.2d 968 (2d Cir. 1985), rehearing en banc granted July 16, 1985.

For several years the government has been investigating allegations of racketeering, extortion of labor peace payoffs, and other offenses in connection with the air freight industry at John F. Kennedy International Airport. As part of that investigation the government obtained tape recordings of conversations at the home of Frank Manzo. According to the government, these conversations revealed that he and other members of the Lucchese family were engaged in various crimes. A grand jury, empaneled on November 21, 1983 to investigate these alleged crimes, handed up on February 19, 1985 a 23-count indictment charging eleven defendants, including Manzo, with RICO conspiracy, multiple Hobbs Act violations, securities fraud and mail fraud. The mail fraud charge, naming four defendants, relates to activities involving $250,000 of Sullivan County, New York bonds purchased through a New York municipal bond broker.

 The grand jury obtained evidence that the Attorney's client was involved in the Sullivan County bonds transaction. It is now investigating the charge that the Attorney's client criminally obstructed the investigation of that transaction.

 The government seeks to compel the Attorney to testify before the grand jury as to conversations he had with a third person and with his client about the grand jury investigation. The questions the government proposes to ask include the following:

 Were you told that a federal grand jury in the Eastern District of New York was investigating the Sullivan County bonds deal involving Gabriele Hueglin? Were you told that your client's name had been mentioned during the investigation? Were you told that William Barone appeared to be the target of the investigation? If so, who told you? If so, when were you told?

 Did you tell your client that a federal grand jury in the Eastern District of New York was investigating the Sullivan County bonds deal involving Gabriele Hueglin? Did you tell your client that he had been mentioned during the investigation? Did you tell your client that William Barone appeared to be the target of the investigation? If so, when did you do so?

 I

 The intervenor claims that the information that the government seeks to elicit by these questions is privileged as attorney-client communications. The privilege is primarily designed to protect confidential communications from the client to the attorney. See In re Sealed Case, 237 U.S. App. D.C. 312, 737 F.2d 94, 98 (D.C. Cir. 1984); United States v. International Business Machines Corp., 66 F.R.D. 206, 211 (S.D.N.Y. 1974). But a communication from an attorney to his client is privileged if it would "reveal confidential information communicated by the client to the lawyer," International Business Machines Corp., supra, or if it consists of legal advice given to the client. See United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980). Where the information sought from the lawyer is not confidential, the fact that it may incriminate the client is "not a valid reason to invoke the attorney-client privilege." In re Shargel, 742 F.2d 61, 63 (2d Cir. 1984).

 The information about the grand jury investigation that the Attorney obtained from a third person and relayed to his client is clearly not confidential. Where an attorney is a mere "conduit" the client may not invoke the privilege. See United States v. Hall, 346 F.2d 875 (2d Cir.), cert. denied, 382 U.S. 910, 15 L. Ed. 2d 161, 86 S. Ct. 250 (1965).

 The intervenor argues that although the information sought may not be confidential its disclosure would permit inferences as to confidential matters such as the concerns of his client and the reasons for his seeking representation. However, the court is satisfied by the facts stated in the government's in camera affidavit that these concerns are no longer, if they ever were, confidential.

 Finally the intervenor says that if the Attorney is forced to answer the proposed questions he will have to reveal the legal advice he gave to his client. But the intervenor has made no showing as to what legal advice would be revealed or why the Attorney would be unable to exclude the legal information from the factual information in making his responses.

 II

 The intervenor asserts that the information he received about the grand jury investigation was obtained by the Attorney from an attorney representing another subject of the grand jury's investigation. Therefore, intervenor argues, the ...


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