Appeal from an order of the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, enjoining appellant from retaining William Erlbaum, Esq., as his attorney in connection with his appearance before a federal grand jury. Reversed and remanded.
Kaufman, Chief Judge, Smith and Anderson, Circuit Judges. Kaufman, Chief Judge, concurring.
This is an appeal from the order of the United States District Court for the Eastern District of New York, Bramwell, Judge, prohibiting appellant, Edward Taylor, from retaining William Erlbaum, Esq., as his attorney in connection with a grand jury subpoena. The order was issued after the court's in camera examination of an affidavit and exhibits submitted by the Government attorney, who is directing the grand jury investigation. The affidavit and exhibits, sealed by the court's order, allegedly establish that a conflict exists between Mr. Erlbaum's representation of appellant and of other targets of the investigation.
The facts of the case are uncomplicated. On July 18, 1977, appellant was served with a subpoena to appear and testify before a grand jury investigating possible federal offenses related to the organization, construction, and operation of direct-lease day care centers in New York City. He retained Mr. Erlbaum to advise him in connection with his grand jury appearance, which was scheduled for August 3.
On July 29, the Government moved for an order disqualifying Mr. Erlbaum on the ground that there was a conflict of interest in his representation of appellant and of Gary Joseph, Jeffrey Podell, and Leonard Simon, the other suspects. The Government stated that, based on other evidence already presented to the grand jury, it was aware that appellant possessed knowledge that would incriminate these men and that it was prepared to seek use-immunity for Taylor and compel him to testify before the grand jury. The Government refused to disclose to Mr. Erlbaum and to appellant, Taylor, the underlying basis of the alleged conflict of interest on the ground that to do so would violate the secrecy of the grand jury proceedings. Rule 6(e), F.R.Cr.P. Instead, the Government asked the court to review in camera certain materials already before the grand jury which would demonstrate the conflict and the need for independent counsel.
At a hearing before the court on July 29, Mr. Erlbaum requested that he and appellant be apprised of the undisclosed in camera material in order to allow appellant to make an informed choice of counsel. Mr. Erlbaum stated that Messrs. Taylor, Joseph, Podell, and Simon were related by business and family ties, that he had been appellant's family lawyer for many years, that he had represented these men in connection with an investigation by the New York City Department of Investigations of day care centers, and that he was not aware of any facts that would demonstrate that appellant's interests were antagonistic to those of his other clients. Taylor twice expressed to the court his desire to retain the services of Mr. Erlbaum, unless it was made clear that his (Taylor's) testimony would be in conflict with the interests of his associates.
After examining the Government documents in camera as requested, the court advised Taylor that, when called before the grand jury, he would be asked questions which would implicate others, as well as himself, in the alleged criminal activities. It appears from the court's remarks to appellant that the Government exhibits had convinced the court that if appellant answered the grand jury's likely questions truthfully, under a grant of immunity from the Government, he would be required to incriminate Mr. Erlbaum's other clients. Because of this potential conflict, the court prohibited appellant from retaining Mr. Erlbaum as his attorney.
The issue on appeal is whether or not the district court's in camera inspection of Government documents and subsequent order violated Taylor's constitutional right to counsel of his choice.*fn1
Although grand jury investigations are not criminal proceedings, the procedure that this court has established for adjudicating the propriety of a lawyer representing multiple criminal defendants provides a useful framework for discussing the rights of two or more persons, subpoenaed as witnesses to testify before a grand jury or who are themselves under grand jury investigation, who choose to retain the same lawyer. This court has held that when a potential conflict of interest arises, before, at, or during the trial of several defendants who have retained the same attorney, the trial court should conduct a hearing to determine whether there exists a conflict which would prevent the accused from receiving the kind and quality of legal advice and assistance that is guaranteed by the Sixth Amendment. Abraham v. United States, 549 F.2d 236 (2d Cir. 1977). The defendant should be fully apprised of the facts underlying the potential conflict and should be given the opportunity to express his views. United States v. Carrigan, 543 F.2d 1053 (2d Cir. 1976). Although two or more defendants are not entitled to have the same lawyer as a matter of right, Abraham v. United States, supra; United States v. Bernstein, 533 F.2d 775 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976); each suspect or accused may knowingly and intelligently waive any claims which might arise from counsel's conflict of interest. United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975).
In this case, however, the Government asserts that the public's interest in grand jury secrecy and thorough grand jury investigations, precludes the use by the district court of this procedure. First, it contends that because of the importance of preserving grand jury secrecy, the court must dispense with a hearing at which appellant will be fully apprised of the facts underlying the alleged conflict so that he can properly determine the existence of disqualifying interests on the basis of the grand jury testimony and the Government affidavits submitted in camera. Second, the Government argues that the appellant cannot waive his right to conflict-free counsel and proceed with Mr. Erlbaum as his attorney. The purpose of the Government's motion to disqualify Mr. Erlbaum is not to protect appellant's right to counsel, but rather to promote the public's interest in an effective, thorough grand jury investigation. See In re Gopman, 531 F.2d 262 (5th Cir. 1976); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), appeal dismissed and cert. denied, 423 U.S. 1083, 47 L. Ed. 2d 94, 96 S. Ct. 873 (1976); cf. Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009 (3rd Cir. 1976). It contends, therefore, that judicial interference with private arrangements for representation by one attorney of two or more grand jury targets is warranted because the progress of the Government's investigation will be threatened if an attorney in the position of Mr. Erlbaum advises a witness to assert his privilege not to testify under all circumstances, even after he is offered use-immunity. In effect, the Government is attempting to bring about the compulsory disqualification of Attorney Erlbaum as a tactical maneuver to compel the appellant to testify and to prevent what it anticipates will be efforts by the witnesses summoned for the grand jury investigation to "stonewall" the work of the grand jury.*fn2
We are satisfied, however, that the Government's motion to disqualify Mr. Erlbaum and the court's order prohibiting appellant from retaining his services are premature. The evidentiary basis for these actions is insufficient. See Matter of Grand Jury Empaneled January 21, 1975, supra; In re Investigation Before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 531 F.2d 600 (1976). Appellant has not yet appeared before and been questioned by the grand jury; nor has he indicated that he intends to invoke his privilege not to testify on the ground of self-incrimination. There is little or no evidence in the open record which reveals appellant's relationship to Mr. Erlbaum's other clients. Most importantly, he has not formally been offered immunity, pursuant to 18 U.S.C. § 6002, in exchange for his testimony. It is only when this stage in the grand jury proceedings has been reached, the Executive officer has approved the offer of immunity, and the appellant refuses on the advice of counsel to answer a proper question, that the issue of Mr. Erlbaum's conflict of interest in continuing to represent appellant will be ripe for a hearing.*fn3
With respect to the Government's first claim, the court's in camera examination of the affidavit and grand jury minutes was not justified by the need for grand jury secrecy in this case. In camera proceedings are extraordinary events in the constitutional framework because they deprive the parties against whom they are directed of the root requirements of due process, i.e. notice setting forth the alleged misconduct with particularity and an opportunity for a hearing, see Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971). They can only be justified and allowed by compelling state interests. See United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 34 L. Ed. 2d 258, 93 S. Ct. 335 (1972). Whenever the legal rights of individuals are to be adjudicated, the presumption is against the use of secret proceedings. Cf. Hannah v. Larche, 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502 (1960). In camera examination of evidence by a court will not, for example, suffice to sustain a judgment of conviction where the Government, because of a claim of privilege, has failed to disclose to a defendant information which might be material to his defense. See Jencks v. United States, 353 U.S. 657, 1 L. Ed. 2d 1103, 77 S. Ct. 1007 (1957); United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S. 920, 96 L. Ed. 688, 72 S. Ct. 362 (1952); United States v. Grayson, 166 F.2d 863 (2d Cir. 1948); United States v. Andolschek, 142 F.2d 503 (2d Cir. 1944); cf. United States v. Reynolds, 345 U.S. 1, 97 L. Ed. 727, 73 S. Ct. 528 (1953); In re Oliver, 333 U.S. 257, 92 L. Ed. 682, 68 S. Ct. 499 (1948). The principal function of the due process clause is to ensure that state power is exercised only pursuant to procedures adequate to vindicate individual rights. See Wolff v. McDonnell, supra, at 558. As the Supreme Court stated in Carroll v. Princess Anne, 393 U.S. 175, 183, 21 L. Ed. 2d 325, 89 S. Ct. 347 (1968), "The value of a judicial proceeding, as against self-help by the police, is substantially diluted where the process is ex parte because the court does not have available the fundamental instrument of judicial judgment: an adversary proceeding in which both parties may participate."
In camera proceedings are used, however, to determine if the Government's assertion of a legitimate privilege in non-disclosure of information will deprive a defendant of constitutional rights; see United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974); Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957); United States v. Bell, supra ; or to prevent the frustration of a statutory purpose to limit access to Government papers, see Rule 16(d)(1), F.R.Cr.P.; Goldberg v. United States, 425 U.S. 94, 47 L. Ed. 2d 603, 96 S. Ct. 1338 (1976); Dennis v. United States, 384 U.S. 855, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966); Palermo v. United States, 360 U.S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217 (1959); United States v. Pacelli, 491 F.2d 1108 (2d Cir.), cert. denied, 419 U.S. 826, 42 L. Ed. 2d 49, 95 S. Ct. 43 (1974). In these circumstances, in camera proceedings serve to resolve, without disclosure, the conflict between the threatened deprivation ...