Inherent Power & § 1927 — Issuance of Overbroad Subpoena by Criminal Defense Counsel on Counsel for Co-Defendant Seeking Communications with Prosecutor Not Sanctionable — Recklessness-Plus Required for § 1927 Sanctions in 9th Circuit

United States v. Rico, 2015 U.S. App. LEXIS 13123 (9th Cir. July 28, 2015):

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(3) Rico finally claims that we should reverse because the [*7]  district court erred when it quashed a subpoena directed by his counsel to the counsel for a co-defendant. The subpoena sought materials and testimony with which to impeach the testimony of the co-defendant. While, as we will explain hereafter, we do not find an abuse of discretion,9 even if we did, the error would be harmless.10 The subpoena was issued in order to obtain information with which to impeach the witness if she appeared to testify untruthfully, which she did not. Thus, Rico neither suffered nor points to any prejudice.

9   See United States v. Bergeson, 425 F.3d 1221, 1224 (9th Cir. 2005).

10   See United States v. Edwards, 235 F.3d 1173, 1178-79 (9th Cir. 2000) (per curiam).

Therefore, we affirm Rico's conviction.

II. Boltax's Appeal

When the district court quashed the subpoena that Boltax directed at Rico's co-defendant's attorney, it considered the issuance unreasonable and, therefore, ordered him to show cause why he should not be sanctioned. Ultimately, it did impose sanctions. Boltax appealed, and we reverse.

The district court imposed sanctions pursuant to its inherent power and the provisions of 28 U.S.C. § 1927. We review its imposition of sanctions for abuse of discretion. See Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1218 (9th Cir. 2010); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

At the threshold it is important to consider whether the district court abused its discretion when it quashed the subpoena. [*8]  See Bergeson, 425 F.3d at 1224. If it did err, an award of sanctions could not be upheld. The court did not err. Despite what Boltax argues, the subpoena was quite broad. Besides commanding Mr. Garrison, the co-defendant's attorney, to appear to testify, the subpoena ordered him to bring: "All notes and/or summaries of any interview or debrief between Assistant U.S. Attorney A. Serano [AUSA] and/or law enforcement including but not limited to interview and/or debrief held on or about August 2, 2013 with co-defendant . . . ." *** Notably, the subpoena was not limited to any particular interview with any particular person, nor was it limited to any particular type of note or summary. And lest there be any doubt about what was intended, Boltax sent the AUSA a missive indicating that it was Boltax's intention to question Garrison about the "exposure of his client under the plea agreement if she doesn't cooperate and that cooperation will get her a recommendation from the government for less time." He also indicated that he might question Garrison about "what his client said during the debrief session."

The district court had discretion to quash the subpoena if it was "unreasonable or oppressive";11 the [*9]  court expressly determined that it was both. The demands of the subpoena implicated the attorney-client privilege,12 attorney work product concerns,13 and the attorney-client relationship.14

11   Fed. R. Crim. P. 17(c)(2).

12   See United States v. Ruehle, 583 F.3d 600, 612 (9th Cir. 2009); United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997).

13   See Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S. Ct. 385, 393-94, 91 L. Ed. 451 (1947)

14   See Bergeson, 425 F.3d at 1224-27.

The courts take all of those attorney-client protections, which were erected for good and sufficient public policy purposes, very seriously. It is true that the attorney-client privilege would not offer protection to disclosures made by Garrison's client to the AUSA. But, the district court did not put weight upon the attorney-client privilege. It did put weight on the work product privilege, and rightly so. Similarly, it put weight on the overall need to protect the attorney-client relationship. Boltax's general concerns that the witness might lie did not outweigh the dangers posed by his course of action. The district court did not abuse its discretion when it quashed the subpoena based on its scope and timing.

The court then sanctioned Boltax by relying on its inherent power15 and on the statute that authorizes sanctions against an attorney who unnecessarily and vexatiously litigates.16 However, a court's inherent power must be utilized with caution and restraint,17 although it can be used [*10]  when counsel's actions are in "bad faith" or are "tantamount to bad faith."18 Imposition of sanctions under § 1927 requires similar, if slightly different, determinations. The statute indicates that actions that multiply the proceedings must be both unreasonable and vexatious, and we have also stated that recklessness alone will not suffice. What is required is recklessness plus something more -- for example knowledge, intent to harass, or frivolousness. See B.K.B., 276 F.3d at 1107; see also In re Girardi, 611 F.3d 1027, 1061 (9th Cir. 2010);19 Fink, 239 F.3d at 993-94. The district court recognized those standards.

15   See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-65, 100 S. Ct. 2455, 2463, 65 L. Ed. 2d 488 (1980).

16   28 U.S.C. § 1927.

17   Roadway Express, 447 U.S. at 764, 100 S. Ct. at 2463.

18   Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001); see also B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1108 (9th Cir. 2002).

19   The standard appears explicitly in the appendix, which is a report by Judge Tashima to the panel that is adopted in full by the panel. See In re Girardi, 611 F.3d at 1034-35.

That leaves the question of whether the district court applied those correct legal standards correctly. Hinkson, 585 F.3d at 1262. Our careful review of the record convinces us that it did not. Not every overbroad subpoena is an occasion for sanctions;20 we have said that in general, "sanctions should be reserved for the 'rare and exceptional case.'"21 This record does not present a rare or exceptional situation. True it is that Boltax issued an inappropriately broad subpoena without sufficiently considering the importance of the protections [*11]  that must surround an attorney's relationship and duties toward his client. Despite that insensitivity, we are unable to see how it meets the level of egregiousness we have seen in other cases where sanctions have been imposed and upheld.22 Moreover, the mere issuance of the overbroad subpoena would not suffice to sustain sanctions. See Mount Hope, 705 F.3d at 429-30. Here, at least, Boltax submitted evidence that other attorneys deeply involved in representing defendants in criminal cases had used subpoenas directed to counsel where the need for the requested information seemed important under the circumstances, or had discussed their use at criminal-law-practitioner conferences. We doubt that the practice is widespread; nor should it be. Important concerns weigh on both sides of the balance: on one side, the need to protect the sanctity of the attorney-client relationship for everyone, and on the other, the need to protect everyone's right to vigorous, effective advocacy by counsel. Both of those are essential to the proper functioning of our system of justice. Both can be threatened when a subpoena directed to another party's attorney is issued. Proper praxis requires that counsel show a great deal of care when [*12]  considering, drafting and issuing subpoenas of that kind. Boltax was not careful enough, but that lapse under the circumstances was not sufficient to support a discretionary determination that his actions were so inappropriate that they demonstrated bad faith, or were tantamount to bad faith, or were reckless, or vexatious. Therefore, the district court abused its discretion when it imposed sanctions upon him, and the award must be reversed.

20   See Mount Hope Church v. Bash Back!, 705 F.3d 418, 423, 429 (9th Cir. 2012).

21   Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997).

22   See, e.g., In re Girardi, 611 F.3d at 1062-63 (respondents intentionally and recklessly misled the court with false statements); Lahiri, 606 F.3d at 1221-23 (cumulative acts over five years evidenced a pattern of bad faith warranting sanctions); B.K.B., 276 F.3d at 1107-08 (attorney's knowing and reckless introduction of inadmissible evidence); Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118-19 (9th Cir. 2000) (lawyer insufficiently informed client regarding a temporary restraining order); Salstrom v. Citicorp Credit Servs., Inc., 74 F.3d 183, 185 (9th Cir. 1996) (lawyer made too much out of a simple debt collection matter).

AFFIRMED as to Rico (No. 14-50141). REVERSED as to Boltax (No. 14-50280).

CONCUR BY: Reinhardt

CONCUR

Reinhardt, Circuit Judge, concurring:

I concur in the memorandum disposition. I would add that I do not construe our disposition as a flat ruling that defense counsel may never issue a narrow subpoena to an attorney regarding what occurred at a conference between [*13]  the attorney's client and the prosecuting authority, as it may well be critical to whether there has been a violation of Brady or Napue. Whether defense counsel is always required to rely only on the notes taken by persons on the prosecution's side is a question that should be decided, if at all, in a case with a fuller record. There are of course some exceptions to the work product rule. See Hickman v. Taylor, 329 U.S. 495, 511 (1947). These exceptions have not yet been fully explored by the courts. Whether a case like this, with different facts, could constitute one of those exceptions is a question we need not answer here. See also In re Sealed Case, 124 F.3d 230, 236 (D.C. Cir. 1997) (rev'd on other grounds sub nom. Swidler & Berlin v. United States, 524 U.S. 399 (1998)) (finding that an attorney's contemporaneous notes of an interview in which he did not (primarily) direct the conversation are not given iron-clad protection by the work product rule).

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