Defense Counsel as a Witness for the Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas to Counsel for Targets of Investigations

Authors

Ellen R. Peirce
Leonard J. Colamarino

Abstract

The practice of subpoenaing an attorney to appear before a federal grand jury investigating his client seriously intrudes upon the attorney-client relationship. It permits the government to create the possibility of a conflict of interest between attorney and client that could lead to the attorney's disqualification. In addition, it discourages full and open discussion between attorney and client, erodes the client's trust and confidence in his attorney, and creates the possibility that the attorney may supply information that incriminates his client. This Article reviews the nature and scope of federal grand jury subpoenas and the unique problems an attorney faces when subpoenaed to testify before a grand jury investigating his client. The Article reviews traditional defenses that may be raised in such circumstances, analyzes the conflicting circuit court decisions on the issue, and proposes a solution designed to protect against unwarranted intrusions into the attorney-client relationship. The Article recommends that federal courts exercise their supervisory powers over grand jury subpoenas and require a prosecutor to make a preliminary showing of both relevance and need before the issuance of a subpoena to an attorney of a target under grand jury investigation. Such a requirement would help preserve the attorney-client relationship without unreasonably impairing the grand jury's authority to obtain information pertinent to possible criminal prosecutions.

Recommended Citation

Ellen R. Peirce and Leonard J. Colamarino, Defense Counsel as a Witness for the Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas to Counsel for Targets of Investigations, 36 Hastings L.J. 821 (1985).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol36/iss6/1