Of course, if faced with such a dilemma and a strongly worded subpoena, it is always possible to “call” the prosecutor on what you believe to be an inappropriately worded warning or cover letter.

In certain instances, such aggressive measures may be the order of the day. However, such a strategy will likely also invite more attention to your client than is desirable, whereas your client’s nondisclosure or even low-key disclosure may be a preferable route.

Even better, opting for the back-channel of your contacting the subject’s lawyer (if, in fact, he is already represented), whose probity is not in issue, is a lot less risky.

At the end of the day, the most important consideration is to keep pressure off your client, whether it is in terms of bad blood with the target and/or the prosecutor’s office, and to steer clear of any vulnerability to an obstruction of justice charge. In short, do not make the subpoena target’s problems suddenly your client’s – or yours – as well!

Joel Cohen, a former federal and state prosecutor, practices white-collar criminal law at Stroock & Stroock & Lavan and teaches professional responsibility at Fordham Law School. Danielle Alfonzo Walsman is an associate in Stroock’s litigation department. Christopher Hemphill, a Stroock summer associate, contributed to the preparation of this article.

Endnotes:

1. United States Attorneys’ Manual 9-11.151.

2. Id.

3. Jonathan D. Glater, “At the Uneasy Intersection of Bloggers and the Law,” N.Y. Times, July 15, 2008, at C1.

4.Id.

5. N.Y. Crim. Proc. Law §190.25 (2008).

6. N.Y. Penal Law §215.70 (2008).

7. See Matter of Grand Jury Applications for Court-Ordered Subpoenas and Nondisclosure Orders-December 1998 Term, 536 NYS2d 939 (1988) (“Witnesses are specifically exempted from the secrecy provisions of Article 190 of the Criminal Procedure Law.)

8. Fed.R.Crim.P. 6(e)(2).

9. Butterworth v. Smith, 494 U.S. 624 (1990).

10. Id. at 632.

11. 18 U.S.C. §1510(b).

12. Id.

13. In re Grand Jury Proceedings, 417 F.3d 18, 28 (1st Cir. 2005) (though, permitting disclosure of any independent recollections of external prior events about which the witness may have been questioned); Goodman v. United States, 108 F.2d 516 (9th Cir. 1939); In re Swearingen Aviation Corp., 486 F.Supp. 9 (D. Md. 1979). See also, In re Grand Jury Subpoena, 103 F.3d 234 (2nd Cir. 1996) (preventing the disclosure of information arising in the course of a motion to compel, relating to a grand jury subpoena).

14. Fn. 5, supra.

15. E-mail exchange with Mr. Castleman, dated Nov. 18, 2008.

16. In re Grand Jury Proceedings, 814 F.2d 61, 67 (1st Cir. 1987).

17. United States v. Kilpatrick, 575 F.Supp. 325, 332 (D. Colo. 1983).

18. In re Grand Jury Proceedings, 814 F.2d at 70 (1st Cir. 1987).

19. Doe v. Ashcroft, 334 F.Supp.2d 471, 485 (S.D.N.Y. 2004).