IN RE GRAND JURY PROCEEDINGS — GORDON, WITNESS

KRUPANSKY, Circuit Judge.

The intervenor-appellant, John Doe (Doe), appeals from an order of the District Court for the Northern District of Ohio which requires Larry S. Gordon (Gordon) to answer certain questions posed by a federal grand jury.

The factual background to this controversy is straightforward. For several years a grand jury sitting in the Northern District of Ohio has been conducting an investigation into possible violations of the Internal Revenue Code by Reuben Sturman (Sturman) and several alleged corporate facades under his control.

Despite continuous efforts, the grand jury has been frustrated in its attempts to secure documented information concerning the stock ownership and/or control of the corporations which are the subject of the grand jury investigation. On May 2, 1980, the grand jury issued a subpoena ad testificandum to Larry S. Gordon (Gordon), an attorney with the law firm of Berkman, Gordon, Kancelbaum & Levy. Gordon appeared on the scheduled date and testified. He identified 12 corporations incorporated by his law firm and also four others as clients of the firm. Gordon further testified that, at some period of time, the corporate record books and stock ledgers for these corporations were kept at his firm's offices. Finally, Gordon acknowledged that Sturman was a client of the firm who was represented by Gordon.

However, when confronted by certain inquiries designed to elicit information concerning the alleged de jure corporate status of the corporations here in issue, Gordon refused to answer, invoking the attorney-client privilege. Accordingly, on January 22, 1982, the government petitioned the district court to compel Gordon to:

The government submitted an affidavit under seal in support of its motion.

Thereafter, Gordon requested that he be permitted to examine his grand jury testimony and the affidavit in support of the aforementioned motion that had been submitted by the government under seal. A motion to intervene was also filed by a "John Doe" asserting that he was the individual the government was attempting to identify through Gordon's interrogation.

On January 18, 1983 the lower court granted Gordon's request to examine his grand jury testimony but denied him access to the affidavit filed by the government in support of its motion to compel answers to the grand jury. The court deferred ruling on Doe's motion to intervene to enable Doe to demonstrate to the court that he was in fact Gordon's client and the target of the inquiries. On March 15, 1983, after reviewing, in camera, an affidavit from Doe, the lower court permitted him to intervene "on the basis of John Doe's claim of attorney-client privilege." Doe had also asserted a right to intervene based on the Fifth Amendment, but the lower court found the reliance "misplaced."

On March 29, 1983, the lower court granted the government's motion to compel Gordon to answer the four identity questions directed to him concluding that the answers would not constitute an invasion of the attorney-client privilege.

The intervenor appealed from this order, execution of which has been stayed by the lower court.

Initially, this Court is confronted with a jurisdictional issue.1 Generally, an order compelling testimony or denying a motion to quash a grand jury subpoena is not appealable. United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). A party seeking to contest the validity of the trial court's order must refuse compliance, thereby inviting a contempt citation which, when imposed, becomes an appealable order.

The Supreme Court has recognized an exception to this rule when the party seeking review has a more direct interest in preventing disclosure of the information sought by the grand jury than the individual to whom the subpoena was directed. Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). The rationale for the exception recognizes that the subpoenaed party, to avoid a contempt citation, may voluntarily comply with the subpoena thereby depriving the real party in interest of a protected right and appellate review.

Presently there is a conflict within the Circuits as to the application of the Perlman exception, where, as here, a client seeks immediate review of an order compelling testimony or documents from his attorney. The majority view recognizes the exception and permits immediate appellate review. See United States v. Jones, 696 F.2d 1069 (4th Cir.1982); In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d 363 (9th Cir.1982); In re Grand Jury Proceedings (Damore), 689 F.2d 1351 (11th Cir.1982); In re Grand Jury Proceedings (Fine), 641 F.2d 199 (5th Cir.1981); In re Grand Jury Proceedings (Malone), 655 F.2d 882 (8th Cir.1981); In re Katz, 623 F.2d 122 (2d Cir.1980); In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798 (3d Cir.1979); Velsicol Chemical Corp. v. Parsons, 561 F.2d 671 (7th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978). The D.C. and First Circuits have decided that the order is not immediately appealable. In re Sealed Case, 655 F.2d 1298 (D.C.Cir.1981); In re Oberkoetter, 612 F.2d 15 (1st Cir.1980).

In concluding that the order is not immediately appealable, the First Circuit stated that a "stout-hearted" attorney may risk a contempt citation in his client's interest. This premise is tenuous. As noted by the Fifth Circuit:

In re Grand Jury Proceedings (Fine), supra, at 202-03 (footnote omitted).2

This Court adopts the above-quoted logic and joins the majority of other Circuits in applying the Perlman exception in those cases wherein a client seeks immediate appeal of an order compelling testimony from his attorney. Accordingly, the Court's appellate jurisdiction is properly invoked in the matter at bar.3

Addressing the merits of the instant case, it is evident that the four interrogatories directed to Gordon merely seek the identity of his client. This Circuit has acknowledged the "unanimously embraced ... general rule that the identity of a client is ... not within the protective ambit of the attorney-client privilege." In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 451 (6th Cir.1983).

This Court, in In re Grand Jury Investigation No. 83-2-35, supra, has also recognized two exceptions to the general rule. The first exception, characterized as the "legal advice" exception, was defined by the Ninth Circuit in In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), supra at 365:

In the case at bar, the district court concluded that the "legal advice" exception was inapplicable to this case. This Court concurs. The record, including the in camera affidavit of Doe, discloses that Doe sought legal assistance to incorporate several companies. There is no criminal implication arising from Doe having directed an attorney to incorporate a number of business enterprises. Accordingly, the legal advice exception is unavailing to Doe.

The second exception recognized in In re Grand Jury Investigation No. 83-2-35, is applicable "where disclosure of the identity would be tantamount to revealing an otherwise confidential communication." In re Grand Jury Investigation No. 83-2-35, supra at 453. As pronounced by the Fourth Circuit:

NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir.1965).

In considering the applicability of the second exception, the Court addresses each of the four inquiries directed to Gordon. Inquiry # 1 seeks the identity of the individual who engaged Gordon to incorporate each company. Gordon's previous disclosures simply reveal that a client employed his firm to incorporate the companies. Doe, in his in camera affidavit, conceded that he is the client who directed Gordon to incorporate the companies in issue. Accordingly, the identity of the client, within the context of the developed facts, merely amounts to a disclosure of the scope and objective of the legal employment undertaken by Gordon.

The mere "fact of consultation including the component facts of ... scope or object of employment" is not privileged. McCormick, Evidence § 90 (2d ed. 1972). See also 2 Weinstein's Evidence ¶ 503(a)(4)[02] (1982); Colton v. United States, 306 F.2d 633 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963) (general nature of legal services performed not privileged).4 Thus disclosure of Doe's identity in response to inquiry # 1 would not be tantamount to disclosure of a confidential communication.

Inquiry # 2 seeks to have Gordon disclose the name of the individual who conveyed to Gordon the identity of the officers and shareholders of the various corporations. The names of shareholders and officers "are clearly a matter of corporate record [and] are not normally the kind of confidential information which is subject to the attorney-client privilege." United States v. Mackey, supra at 859. Inasmuch as the substance of the communication was not confidential, revelation of the identity of the individual who supplied the names of the corporate officers to Gordon cannot amount to disclosure of a confidential communication. Therefore, question # 2 does not seek privileged information and should be answered.

Inquiry # 3 seeks the identity of the representatives of the corporations with whom the law firm communicated regarding "legal matters" involving the corporations. The inquiry does not seek, nor has there been any disclosure of, communications between Gordon and corporate representatives concerning substantive corporate legal issues. Accordingly, the second exception enunciated in In re Grand Jury Investigation No. 83-2-35, is totally inapplicable to inquiry # 3 and Gordon has no basis for refusing to respond.

The fourth and final question does not relate to communications which in any manner concern legal advice or legal representation. The question merely attempts to determine the identity of the individual to whom the law firm delivered the corporate records. Indeed, as the lower court noted, Doe has not indicated that the fourth question refers to him. Accordingly, there is no basis for applying the attorney-client privilege to inquiry # 4.

In sum, the Court concludes that response to the four inquiries posed by the grand jury will not infringe on the attorney-client privilege and the district court's order compelling Gordon to respond to these inquiries was proper.

Appellant next asserts that his attorney should have been permitted to assert the Fifth Amendment privilege against self-incrimination on behalf of his client. However, existing legal precedent in this Circuit holds that the Fifth Amendment privilege is a personal privilege and "does not permit an attorney to plead that his client might be incriminated by his testimony." United States v. Haddad, 527 F.2d 537, 539 (6th Cir.1975). Accord: United States v. Goldfarb, 328 F.2d 280 (6th Cir.1964).5

Finally, appellant asserts that he was denied due process by the district court's refusal to grant him access to the sealed affidavit filed by the government in support of its motion to compel. The government had initially submitted the affidavit to establish that Gordon's legal services had been retained in furtherance of ongoing criminal activity thereby precluding use of the attorney-client privilege to shield disclosure of communications. The lower court rejected this argument and the government has not pressed it on appeal.

The district court reviewed the affidavit in camera and, finding that it consisted primarily of evidence generated by the grand jury, including the testimony of other witnesses, denied Gordon and Doe access to the affidavit. The Seventh Circuit addressed this precise issue in In re Special September 1978 Grand Jury, 640 F.2d 49 (7th Cir.1980). In that case the government also submitted material under seal to establish that fraud vitiated the attorney-client privilege claimed by the recipients of a grand jury subpoena duces tecum. The trial court reviewed the documents in camera and, on appeal, the subpoenaed parties asserted that their rights to due process had been violated. The Seventh Circuit rejected the contention:

Id. at 57-58 (footnote omitted).

Similarly, in In re John Doe Corp, 675 F.2d 482, 490 (1982), the Second Circuit upheld the use of in camera submissions to resolve the government's claims that an attorney-client relationship was tainted by a criminal purpose:

Accord, In Re Grand Jury Proceedings (Fine), 708 F.2d 1571, 1576 (11th Cir.1983). This Court is persuaded that an in camera submission on the facts of this case was a reasonable accommodation of the need to maintain secrecy of the grand jury investigation and the need for prompt resolution of the privilege issue. Hence, this Court finds no abuse of discretion and no deprivation of appellant's right to due process.

Accordingly, the lower court's order compelling Gordon to respond to the enumerated grand jury inquiries is AFFIRMED.