The United States Court of Appeals for the Second Circuit recently issued a significant decision that explored the circumstances under which an attorney can be compelled to testify before a grand jury regarding statements made by the attorney’s former client to government officials in the presence of the attorney.
In In re Grand Jury Subpoena Dated October 22, 2001,[1]� the Second Circuit, in an opinion written by Judge Pierre N. Leval and joined by Judge Guido Calabresi and Judge Sidney H. Stein (United States District Court for the Southern District of New York, sitting by designation), reversed the district court’s denial of a motion to quash a subpoena that directed an attorney to testify before a grand jury and ordered the district court to grant the motion to quash. In reversing the district court’s denial of the motion, the Second Circuit held that, under certain circumstances, the work-product doctrine bars the compulsion of an attorney’s testimony regarding a former client’s statements to government officials made in the presence of the attorney. The court suggested, however, that that there may be an exception to this rule where the attorney’s testimony would be used by the government solely to show that the client committed a crime in the presence of the attorney.
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