On January 12, the Supreme Judicial Court issued an opinion, In the Matter of a Grand Jury Investigation, which held that a grand jury subpoena, issued to a law firm for a cell phone containing text messages or other communications that the Commonwealth contended were evidence of a crime, and which had been provided to the firm by a client for the purposes of providing legal advice, must be quashed, meaning the attorneys did not have to turn the cell phone and its contents over to grand jury. Though no names were mentioned it was widely reported that the phone belonged to Aaron Hernandez and the grand jury is deciding whether to charge him with murders in Suffolk County. He was the “target” of the investigation.
Three legal issues and their interplay decided the case, but they also left open an alternative route for prosecutors to seek documentary evidence belonging to a client but held by an attorney.
First is the privilege against self-incrimination, and in particular a concept known as “act of production.” The U.S. Supreme Court long ago held that even unprivileged documents or objects that could be subpoenaed by a grand jury have a testimonial component where the person subpoenaed is a potential subject of the grand jury’s investigation: by turning over subpoenaed materials, the person is acknowledging their existence, his possession of them, and he is authenticating that they are what the subpoena seeks. These acknowledgments, the Supreme Court held, could not be compelled because the person’s Fifth Amendment privilege protects him from having to make any representations that could tend to incriminate him. United States v. Doe, 465 U.S. 605 (1984); Doe v. United States, 108 S. Ct. 2341 (1988). Thus, although the actual materials subpoenaed are not privileged, and the person subpoenaed may not refuse to turn them over on the grounds that they are, he may refuse to turn them over because his act of producing them is privileged.
But the Supreme Court also has said that if the subject gives documents or things to an attorney, and the attorney is subpoenaed, the attorney cannot assert the client’s Fifth Amendment act of producting privilege, because the client is not being compelled to acknowledge anything. Fisher v. United States, 425 U.S. 391 (1976).
This brings into play the second legal issue. The Supreme Court in Fisher went on to say that the documents in the hands of the attorney could be protected by the attorney-client privilege instead of the Fifth Amendment. Specifically, the Court held that if (1) the client provided documents to the attorney to get legal assistance, and (2) the documents would not have been subject to subpoena in the hands of the client, then they could not be subpoenaed from the attorney. This is so because the attorney-client privilege is designed to allow the freest communication between attorney and client, and if the documents are necessary to the attorney’s representation, the Court did not want to put an obstacle in the way of that communication, namely, that they would become subject to subpoena once turned over.
In this case, those two principles should have protected the cell phone from being subpoenaed from the attorneys. The grand jury was seeking documents (texts and other materials) from the cell phone, and there was no dispute that the attorneys had it for purposes of providing legal assistance to Hernandez. So, Hernandez would not have had to turn it over in response to a subpoena on Fifth Amendment (act of production) grounds, and his attorneys should not have had to turn it over on attorney-client privilege grounds.
The trial judge, however, looked at yet a third legal issue and decided that, with a showing of probable cause that the contents of the cell phone constituted evidence of a crime, the grand jury could enforce the subpoena against the lawyers despite the attorney-client privilege. The trial judge reasoned that the prosecutors could have used a different avenue to obtain the cell phone from Hernandez: a search warrant. However, under a Massachusetts statute, M.G.L. c. 276 § 1, search warrants may not issue for materials in the hands of an attorney unless there is probable cause to believe that the materials will be “destroyed, secreted or lost” if not seized, or if the attorney has or is about to commit a crime (presumably involving the materials to be seized). The trial judge concluded that the combination of the attorney-client privilege afforded by Fisher, and the prohibition against seizure of materials from attorneys in c. 276 § 1, would permanently put evidence out of reach of the police, and that this would allow a client to avoid a lawful search merely by turning the objects of the search over to his or her attorney. The trial judge therefore concluded, in order to allow access to relevant, nonprivileged evidence, that a subpoena could be enforced on a showing of probable cause that the attorneys had the phone and that it contained evidence of a crime.
At this point the case moved to the Supreme Judicial Court. The SJC reversed, and held that the third legal issue was improperly introduced into the analysis. The SJC found that the trial judge “conflated” subpoena and search powers. There was no search warrant, and the SJC found it improper to base enforcement of a subpoena, in clear contravention of the Fisher rule, on a hypothetical search that might or might not have yielded the cell phone, had it not been turned over to the lawyer:
Under Fisher, the protection that a client enjoys under the attorney-client privilege is coterminous with the protection that a client would have enjoyed under the privilege against self-incrimination. Consequently, just as the right against self-incrimination may not be set aside based on judicial speculation about what the prosecution might be able to find with a valid search warrant, neither may the Fisher rule. In short, neither the privilege against self-incrimination nor the attorney-client privilege may be extinguished on the basis of a “would’ve, could’ve” analysis that invites courts to hypothesize upon what police might be able to find and seize, given enough time and a valid search warrant.
Effectively the SJC says, under Fisher it is irrelevant whether police could have obtained a warrant to search for the documents in the hands of the client, when the question is whether a subpoena to a lawyer can be enforced.
That was not the end of the analysis, however. The SJC went on to consider whether a warrant to search for the cell phone in the lawyer’s offices could issue, and concluded that on the record before it it could not. It rejected two arguments the Commonwealth made for allowing a warrant: first it rejected the Commonwealth’s argument that the cell phone was merely an object, noting that it was not disputed that its evidentiary value was for documents it contained; and second, the Court rejected the argument that the mere fact that the lawyer, based on Fisher, could resist a subpoena meant that the document was “secreted,” taking it out of the protection of c. 276 § 1.
The SJC then noted that the protections of c. 276 § 1 against warrants to search attorneys’ offices are narrow. First, the statute does not protect “instrumentalities or proceeds of a crime” but only documentary evidence. So a weapon, or drugs, or money representing the proceeds of crime are all allowable targets of a search. Second, documents are protected under Fisher only if given to the lawyer for purposes of obtaining legal advice, so documents provided not for that purpose can be the subject of a subpoena to the lawyer.
Finally, and this is a point expanded on by three justices in Justice Cordy’s concurrence, the Fisher protection, according to the SJC, is available only so long as the documents are necessary for providing legal advice. In other words, there is an endpoint to the protection – when the documents are no longer held for the purpose of providing legal advice.
The concurrence went further, and fashioned a proposed procedure to litigate the issue whether the documents are being held for the purposes of providing legal services, by a sort of hybrid between warrant and subpoena. The Commonwealth would apply for a warrant, setting out the reasons. The judge would issue a notice to the law firm, which would be required to raise any privilege and justify the need for continued retention for the purposes of providing legal services. Upon concluding that the documents are not privileged and that they are no longer held to provide legal services, a warrant would issue for their seizure.
Whether the precise procedure outlined in the concurrence will ultimately be adopted or not, it is clear that both the majority and the concurrence agree that the documents lose all protection when they are no longer necessary to provide legal services. This is, in my view, a misreading of Fisher and runs counter to the Supreme Court’s reasoning in affording attorney-client privilege status to certain documents provided to the attorney by the client.
It also provides protection that is likely to be fleeting. Consider that documents are easily reproducible, and if it is only the contents of the documents that are necessary to provide legal advice, the lawyer is in as good a position to do so with copies as with the originals. Certainly this is true for any electronic records, as to which copies and originals are indistinguishable. Once the lawyers have copies of documents, is there in fact any further need of the originals to provide legal advice? And if the documents are not privileged, what protection remains, in the majority’s view from compelled production pursuant to a subpoena, or in the concurring justices’ view, from seizure pursuant to a warrant?
Fisher was intended to encourage free communication between client and attorney, and to avoid discouraging a client from providing documents to the lawyer to obtain legal advice if they would thereby become subject to subpoena where they were not in the client’s hands. The Court distinguished between documents that were privileged in the client’s hands and those that were not, and concluded that those which were privileged in the client’s hands remained so in the attorney’s hands, if provided initially to obtain legal advice:
Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged…. The purpose of the privilege is to encourage clients to make full disclosure to their attorneys…. As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice. However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege…. The purpose of the privilege requires no broader rule. Pre-existing documents obtainable from the client are not appreciably easier to obtain from the attorney after transfer to him. Thus, even absent the attorney-client privilege, clients will not be discouraged from disclosing the documents to the attorney, and their ability to obtain informed legal advice will remain unfettered. It is otherwise if the documents are not obtainable by subpoena duces tecum or summons while in the exclusive possession of the client, for the client will then be reluctant to transfer possession to the lawyer unless the documents are also privileged in the latter’s hands. Where the transfer is made for the purpose of obtaining legal advice, the purposes of the attorney-client privilege would be defeated unless the privilege is applicable…. Where the transfer to the attorney is for the purpose of obtaining legal advice, we agree with it.
425 U.S. at 403 (citations omitted).
Fisher’s protection of documents does not depend on the continuing need of the attorney for the documents: the sole issue is whether the attorney-client privilege is extended to these documents in order to make the attorney-client relationship work. The majority opinion in the SJC appears to acknowledge this when it states that “the protection that a client enjoys under the attorney-client privilege is coterminous with the protection that a client would have enjoyed under the privilege against self-incrimination.” If there is an endpoint to protection of the documents in the hands of the attorney, that is, when the need for them to provide legal advice ends, it is not true that the protections are “coterminous” and the reasoning of Fisher, to ensure free communication between attorney and client, is defeated. If I know that I cannot be compelled to produce certain unprivileged documents because I have a fifth amendment privilege not to acknowledge their existence, my possession of them and their authenticity, and I need legal advice but know that the documents will be subject to some process by which they can be obtained by the government once their usefulness to give legal advice (say because they are copied, as above) ends, I am discouraged from providing them to my lawyer and his efforts to advice me are thereby hampered.
The SJC majority’s suggestion, and the concurrence’s outright adoption, of an endpoint both renders the protections exceedingly thin and runs counter to Fisher. These suggestions are dicta, and they should, in a proper case, be reconsidered and rejected in light of Fisher.