In Re: Grand Jury Subpoena UNITED STATES OF AMERICA v.  Under Seal

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: Grand Jury Subpoena
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-1269 
UNDER SEAL,
Defendant,
and
UNDER SEAL,
Intervenor-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-03-589-AW)
Argued: June 6, 2003
Decided: August 19, 2003
Before WILKINS, Chief Judge, and WILLIAMS and
TRAXLER, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: Andrea Dennis Callaman, Assistant Federal Public
Defender, Greenbelt, Maryland, for Appellant. David Ira Salem,

-- 1 of 8 --

Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Paula Xinis,
Assistant Federal Public Defender, Greenbelt, Maryland, for Appel-
lant. Thomas M. DiBiagio, United States Attorney, Greenbelt, Mary-
land, for Appellee.
OPINION
WILKINS, Chief Judge:
Appellant, the subject of a pending grand jury investigation,
appeals a district court order compelling his former attorney
("Counsel") to answer two questions before the grand jury.1 Finding
no error, we affirm.
I.
In March 2002, Appellant was interviewed by two FBI agents for
the purposes of (1) determining whether Appellant, who is of Middle
Eastern descent, had any information that might be helpful in connec-
tion with terrorism investigations; and (2) discussing with Appellant
his earlier filing of an INS document known as Form I-485, some-
times referred to as a "green card" application. This noncustodial
interview was conducted in the lobby of Appellant’s apartment build-
ing and lasted approximately 45 minutes.
During the interview, one of the FBI agents asked Appellant about
an answer he had provided to the following question on Form I-485
("Question 1(b)"): "Have you ever, in or outside the United States . . .
been arrested, cited, charged, indicted, fined, or imprisoned for break-
ing or violating any law or ordinance, excluding traffic violations[?]"
J.A. 9 (internal quotation marks omitted). Appellant had answered
that question "no." Id. (internal quotation marks omitted). Before the
interview, the FBI had learned that Appellant had a prior conviction
1Because this appeal relates to an ongoing grand jury investigation, we
use generic terms to refer to the persons involved to avoid disclosing
their identities.
2 In Re: Grand Jury Subpoena

-- 2 of 8 --

for shoplifting. The FBI agent confronted Appellant with a printout
reflecting that conviction and asked why he had answered "no" to
Question 1(b). Appellant responded, "I answered ‘no’ to the question
... under the advice of an attorney." Id. at 15 (internal quotation marks
omitted). Appellant subsequently identified Counsel by name, and he
also gave the name of a second attorney.
In February 2003, in response to a Government subpoena, Counsel
appeared before a federal grand jury that was investigating Appellant
for making a false statement on Form I-485. After answering some
preliminary questions establishing that she was Appellant’s former
attorney, Counsel was asked two questions that are relevant to this
appeal: (1) "[D]id [Appellant] ... consult with you on questions
involving the filling out of the I-485?"; and (2) "[D]id you advise him
to answer ‘no’ to [Question 1(b)]?" Id. at 7-8 (internal quotation
marks omitted). Counsel declined to answer these questions, asserting
that her answers would reveal privileged information.
The grand jury proceedings were suspended, and the Government
moved to compel Counsel to answer the two questions. Appellant
intervened and moved to quash the subpoena, arguing that the ques-
tions sought to reveal privileged communications. After conducting a
hearing, the district court granted the Government’s motion to com-
pel. The court determined that the attorney-client privilege would
generally protect the advice that Counsel gave to Appellant. However,
the court concluded that Appellant’s statements to the FBI agents con-
stituted an implicit waiver of the privilege with respect to the ques-
tions at issue. The district court also found that Appellant was not
deceived into revealing information to the FBI, emphasizing that the
FBI agents were entitled to ask questions of Appellant, who was not
in custody. Accordingly, the district court ordered Counsel to answer
the questions posed by the Government.
II.
Appellant challenges the ruling of the district court that he waived
his attorney-client privilege with respect to the information sought by
the Government.2 We review factual findings underlying an attorney-
2There is no question regarding our jurisdiction over this appeal. See
United States v. (Under Seal), 748 F.2d 871, 873 n.2 (4th Cir. 1984).
3 In Re: Grand Jury Subpoena

-- 3 of 8 --

client privilege ruling for clear error, and we review the application
of legal principles de novo. See Better Gov’t Bureau, Inc. v. McGraw
(In re Allen), 106 F.3d 582, 601 (4th Cir. 1997).
When the attorney-client privilege applies, "it affords confidential
communications between lawyer and client complete protection from
disclosure." Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).
However, because this privilege "impedes the full and free discovery
of the truth," it must be "narrowly construed and recognized only to
the very limited extent that excluding relevant evidence has a public
good transcending the normally predominant principle of utilizing all
rational means for ascertaining truth." Id. (internal quotation marks,
citations & alterations omitted).
This court has adopted the "classic test" for determining the exis-
tence of an attorney-client privilege:
The privilege applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of the
bar of a court, or his subordinate and (b) in connection with
this communication is acting as a lawyer; (3) the communi-
cation relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for
the purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some legal pro-
ceeding, and not (d) for the purpose of committing a crime
or tort; and (4) the privilege has been (a) claimed and (b) not
waived by the client.
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per
curiam) (internal quotation marks omitted). "The burden is on the pro-
ponent of the attorney-client privilege to demonstrate its applicability.
The proponent must establish not only that an attorney-client relation-
ship existed, but also that the particular communications at issue are
privileged and that the privilege was not waived." Id. (citations omit-
ted).
A.
We first consider whether the two questions posed by the Govern-
ment seek information that is generally protected by the attorney-
4 In Re: Grand Jury Subpoena

-- 4 of 8 --

client privilege. The Government contends that the first question—
whether Appellant "consult[ed] with [Counsel] on questions involving
the filling out of the I-485," J.A. 7 (internal quotation marks omitted)
—was not intended to disclose the substance of Counsel’s communi-
cations with Appellant but rather to establish the "general purpose of
the work performed." Appellee’s Br. at 7 (internal quotation marks
omitted); see United States v. Under Seal (In re Grand Jury Sub-
poena), 204 F.3d 516, 520 (4th Cir. 2000) (stating that "the general
purpose of the work performed [is] usually not protected from disclo-
sure by the attorney-client privilege because such information ordi-
narily reveals no confidential professional communications between
attorney and client" (internal quotation marks & citation omitted)).
This question, however, seeks more than just the "general purpose"
of the work performed (for example, providing advice regarding an
immigration matter); it specifically asks whether Appellant consulted
with Counsel about the preparation of the Form I-485. Thus, the ques-
tion impermissibly seeks disclosure of the specific nature of the legal
advice sought by Appellant. Cf. Chaudhry v. Gallerizzo, 174 F.3d
394, 402-03 (4th Cir. 1999) (holding legal bills that revealed specific
nature of research conducted protected by attorney-client privilege).
The Government also contends that its second question—whether
Counsel "advise[d] [Appellant] to answer ‘no’ to [Question 1(b)],"
J.A. 8 (internal quotation marks omitted)—does not seek information
protected by the attorney-client privilege. The Government argues
that because Appellant answered "no" to Question 1(b) in a publicly
filed document, he cannot claim an attorney-client privilege in con-
nection with that answer because he did not intend for it to remain
confidential. The district court declined to address this specific argu-
ment, instead focusing on Appellant’s waiver of the privilege. None-
theless, the district court stated that "there is no question . . . that there
was an attorney-client privilege here" and that "the advice would be
within the scope of that privilege." Id. at 52.
We agree with the district court that the attorney-client privilege
would generally protect against disclosure of whether Counsel
advised Appellant to answer "no" to Question 1(b). The Govern-
ment’s question asked Counsel to reveal the substance of legal advice
that she may have given to Appellant concerning his submission of
Form I-485—a confidential communication that clearly falls within
5 In Re: Grand Jury Subpoena

-- 5 of 8 --

the scope of the privilege. See United States v. Under Seal (In re
Grand Jury Proceedings), 102 F.3d 748, 750 (4th Cir. 1996) ("No
doubt exists that, under normal circumstances, an attorney’s advice
provided to a client, and the communications between attorney and
client are protected by the attorney-client privilege.").
Further, we reject the Government’s "public document" argument
because it misconstrues the nature of the asserted privilege. The
underlying communications between Counsel and Appellant regard-
ing his submission of Form I-485 are privileged, regardless of the fact
that those communications may have assisted him in answering ques-
tions in a public document. Adopting the Government’s reasoning
would lead to the untenable result that any attorney-client communi-
cations relating to the preparation of publicly filed legal documents—
such as court pleadings—would be unprotected.
And, this is not a situation where Appellant intended his communi-
cations with Counsel to be published. See United States v. (Under
Seal), 748 F.2d 871, 875-76 (4th Cir. 1984) ("Only when the attorney
has been authorized to perform services that demonstrate the client’s
intent to have his communications published will the client lose the
right to assert the privilege as to the subject matter of those communi-
cations."); In re Grand Jury Proceedings, 727 F.2d 1352, 1358 (4th
Cir. 1984) (holding that information clients provided to attorney for
preparation of investment prospectus was not privileged because there
was no "intent that the information was to be kept confidential").
Indeed, Appellant filled out and submitted the Form I-485 himself;
that he may have answered a question in a particular way on the
advice of his attorney does not subject the underlying attorney-client
communications to disclosure.
B.
Although the information sought by the Government falls within
the scope of the attorney-client privilege, we agree with the district
court that Appellant waived that privilege through his statements to
the FBI agents. "The client is the holder of the attorney-client privi-
lege and can waive it either expressly, or through conduct." Hawkins,
148 F.3d at 384 n.4 (citation omitted). "As a general rule, implied
waiver occurs when the party claiming the privilege has made any
6 In Re: Grand Jury Subpoena

-- 6 of 8 --

disclosure of a confidential communication to any individual who is
not embraced by the privilege. Such a disclosure vitiates the confiden-
tiality that constitutes the essence of the attorney-client privilege." Id.
(citations omitted).
As explained above, when the FBI agent confronted Appellant with
his shoplifting conviction and asked why he had answered "no" to
Question 1(b), Appellant replied, "I answered ‘no’ to the question . . .
under the advice of an attorney." J.A. 15 (internal quotation marks
omitted). And, Appellant identified Counsel by name, also giving the
name of a second attorney.
Appellant argues that these statements did not constitute a waiver
of the attorney-client privilege because they merely revealed his
conduct—i.e., that he had acted in a particular way relying on the
legal advice of an attorney—rather than disclosing the substance of
that advice. This distinction fails, however, because Appellant clearly
stated to a third party that his attorney had advised him to answer
"no" to Question 1(b). This same information is the subject of the sec-
ond (and ultimate) question posed to Counsel by the Government:
whether she advised Appellant to answer "no" to Question 1(b).
Appellant also claims that he did not waive his attorney-client priv-
ilege because he identified two different attorneys during the FBI
interview without specifying which one had advised him regarding
his answer to Question 1(b). However, the FBI agent testified that
although Appellant did not initially recall the name of the attorney
who had provided the advice, shortly thereafter he said, "I remember
now. The attorney was [Counsel]." Id. at 40 (internal quotation marks
omitted). After a pause, Appellant then said, "And there’s another
attorney, [Second Counsel]." Id. (internal quotation marks omitted).
This testimony sufficiently established Appellant’s identification of
Counsel as one of the attorneys—if not the primary attorney—who
advised him regarding Question 1(b).
Finally, Appellant claims that any waiver should be deemed inef-
fective because the FBI agents coerced and deceived him into disclos-
ing privileged information. This argument is meritless. Appellant was
not in custody, and the interview, which lasted less than an hour, was
conducted in the lobby of his apartment building. Nor does the record
7 In Re: Grand Jury Subpoena

-- 7 of 8 --

reflect any other indicia of coercion. Appellant suggests that the
agents initially misled him into believing that the interview related to
terrorism investigations, not his submission of an immigration form.
But the fact that during the course of the interview the agents asked
Appellant about a different subject—which was also related to law
enforcement—does not establish that they deceived him into reveal-
ing privileged information concerning that subject.3
III.
For the foregoing reasons, we affirm the order of the district court
granting the Government’s motion to compel.
AFFIRMED
3Appellant’s argument that the agents did not warn him about the con-
sequences of disclosing attorney-client communications also fails
because even if such a duty existed, it would not apply here. Appellant
volunteered the privileged information in response to a general question
by the FBI agent, without any prior indication that Appellant had sought
the advice of an attorney.
8 In Re: Grand Jury Subpoena

-- 8 of 8 --