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Federal Grand Juries v Attorney Independence and the Attorney-Client Privilege

NCJ Number
Hastings Law Journal Volume: 27 Issue: 6 Dated: (July 1976) Pages: 1263-1290
M Zwerling
Date Published
28 pages
This article traces the historical development and purposes of the grand jury system as well as abuses of the Federal grand jury system directed against attorneys during the Nixon administration, and assesses the impact of continued abuses on eroding civil liberties.
The grand jury was devised as a means of protecting individual liberty. Since the grand jury has always been perceived as a protector of individual liberty, a judicial attitude of noninterference with grand jury proceedings has developed. This posture of noninterference has allowed abuses of the due process rights of grand jury inquiries to develop as a matter of course, especially since the U.S. Supreme Court has held that grand juries are free from due process concerns. Federal laws enacted in 1968 and 1970 have allowed Federal prosecutors to subvert the fifth amendment privilege against self-incrimination by imposing immunity on recalcitrant witnesses to gain information which is not supposed to be used in subsequent prosecutions. Significant erosions of individual liberties have also occurred as a result of misuse of grand juries to elicit information from attorneys about their clients that the courts previously considered to be privileged information. The Nixon administration chose to deal with its political enemies who were attorneys by subjecting them to grand jury inquiries and forcing them to reveal information about their clients. The practice continued beyond the Nixon years. Courts have held it permissible for attorneys to reveal names and addresses of clients, as well as information about fee arrangements to grand juries, by claiming that these particular communications are not privileged and that this information will enable courts to establish the existence of clients. Continued use of grand juries for the purpose of forcing attorneys to reveal client information will undermine the conficence of clients in their attorneys and lessen the effectiveness of the adversary system. Judges should vigorously defend the attorney-client privilege when challenges to grand jury authority come before them, as a means of preventing further erosion of civil liberties through misuse of an institution developed to protect them. The article contains 129 case notes.


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