United States Court of Appeals For the First Circuit

No. 99-1839 DONALD K. STERN, Plaintiff, Appellant,

v.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, ET AL., Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morton A. Brody,* U.S. District Judge]

Before

Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

Donald K. Stern, United States Attorney, with whom David S. Mackey and Roberta T. Brown, Assistant United States Attorneys, were on brief, for appellant. Gael Mahony, with whom E. Randolph Tucker, Michael D. Vhay, Matthew S. Axelrod, and Hill & Barlow were on brief, for the federal appellees. David Rossman for appellee Arnold R. Rosenfeld (Massachusetts Bar Counsel). Charles W. Rankin, Rankin & Sultan, and Martin W. Healy on brief for Massachusetts Bar Association, Boston Bar Association, and Massachusetts Association of Criminal Defense Lawyers, amici curiae.

April 12, 2000 _____________ *Of the District of Maine, sitting by designation. SELYA, Circuit Judge. This appeal tests the limits of

a federal district court's authority to promulgate local rules.

The court below upheld a rule constraining the issuance of

subpoenas seeking client-related information from lawyers in

criminal cases. Because we find that the rule falls outside the

permissible scope of local rulemaking authority, we reverse.

I. BACKGROUND

Before assaying a preliminary question of

justiciability and addressing the controversy's merits, we trace

the origins of the challenged rule and chart the travel of the

case.

A. The Evolution of Local Rule 3.8(f).

The 1980s witnessed a dramatic increase in the number

of subpoenas served on defense attorneys by federal prosecutors.

The reasons for this trend are difficult to pinpoint, but some

commentators have linked it with heightened efforts to fight

organized crime and drug-trafficking, new forfeiture laws, and

an unprecedented expansion of the Department of Justice (DOJ).

See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of

Lawyering § 3.8:701, at 700 (Supp. 1996); Frank O. Bowman, III,

A Bludgeon by Any Other Name,

, 686

n.74 (1996). In 1985, mindful that forcing a lawyer to offer

evidence against her client may sow seeds of mistrust and

-3- increase the incidence of conflicted interests, the DOJ

introduced guidelines for the issuance of attorney subpoenas,

including an internal preapproval process. See United States v.

Perry,

(9th Cir. 1988) (citing United

States Attorneys' Manual § 9-2.161(a) (July 18, 1985)).

Responding to the prodding of bar leaders, the Massachusetts

Supreme Judicial Court (the SJC) also took prophylactic action.

It adopted an ethics rule, known as Prosecutorial Function 15

(PF 15), which stated that:

It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness.

S.J.C. R. 3:07, PF 15 (effective Jan. 1, 1986).

The United States District Court for the District of

Massachusetts thereafter incorporated PF 15 into its local

rules. PF 15 withstood the United States Attorney's ensuing

challenge by the narrowest of margins. See United States v.

Klubock,

(D. Mass. 1986), aff'd,

(1st Cir. 1987) (equally divided en banc). Crucial to the

district court's holding was the fact that PF 15 imposed no

substantive limitations on the right to issue subpoenas. See

at 120 & n.7, 124.

-4- For the next twelve years, PF 15 held sway in the

District of Massachusetts. In the interim, the Rhode Island

Supreme Court adopted a rule of conduct requiring prosecutors to

obtain judicial approval prior to issuing attorney subpoenas.

See R.I. Sup. Ct. Rules, Art. V., R. Prof'l Conduct 3.8 & cmt.

(adopted Nov. 1, 1988). This rule closely resembled PF 15, with

two significant deviations: its reach extended to subpoenas

outside the grand jury context, and its text included a comment

outlining substantive standards to be applied by a court in

determining whether to sanction an attorney subpoena request.

See

Specifically, the comment suggested that judicial

approbation should be withheld unless, inter alia, the

information sought was (a) not privileged, (b) "essential" to

the government's investigation, and (c) unobtainable from any

"other feasible alternative."

When the United States

District Court for the District of Rhode Island incorporated the

state standard into its local rules on April 20, 1989, the

United States Attorney for that district challenged it. In

Whitehouse v. United States District Court,

(1st

Cir. 1995), a panel of this court upheld the local rule, albeit

strongly suggesting that a different result would obtain were

the criteria limned in the comment embedded in the text of the

-5- rule itself (and, thus, made mandatory rather than precatory).

See

at 1357-58 & n.12.

We temporarily shift our focus to the national stage.

In 1990, the American Bar Association (the ABA) amended Rule 3.8

of the Model Rules of Professional Conduct by adding a new

paragraph (f) and comment:

The prosecutor in a criminal case shall:

. . . (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless: (1) the prosecutor reasonably believes: (i) the information sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; [and] (iii) there is no other feasible alternative to obtain the information; and (2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding.

Comment

Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. The prosecutor is required to obtain court approval for the issuance of the subpoena after an opportunity for an adversarial hearing is afforded in order to

-6- assure an independent determination that the applicable standards are met.

ABA Standing Comm. on Ethics and Prof'l Responsibility and

Section of Criminal Justice, Report 118, at 1 (Feb. 1990).

After the Third Circuit struck down a bar rule patterned on

Model Rule 3.8(f), see Baylson v. Disciplinary Bd.,

(3d Cir. 1992), the ABA retreated; it removed the judicial

preapproval requirement by deleting both subparagraph (2) and

the second sentence of the comment. See ABA Standing Comm. on

Ethics and Prof'l Responsibility, Report 101, at 1 (Aug. 1995).

On June 9, 1997, the SJC amended the Massachusetts Code

of Professional Conduct to replace PF 15 with the (discarded)

1990 version of Model Rule 3.8(f), omitting the second sentence

of the comment, but including the rescinded subparagraph (2).

See S.J.C. R. 3:07, Rule 3.8(f) & cmt. 4. The result was to

alter PF 15 in three important respects: extending it to trial

as well as grand jury subpoenas; providing for an "adversarial

proceeding" in advance of the issuance of an attorney subpoena;

and promulgating three substantive standards for judicial

preapproval.

B. The Instant Litigation.

By local rule, attorneys practicing in the United

States District Court for the District of Massachusetts must

adhere to the ethical rules adopted by the SJC, unless a

-7- specific exception obtains. See D. Mass. R. 83.6(4)(B). On

November 17, 1997, the United States Attorney for the District

of Massachusetts, Donald K. Stern, wrote to the chief judge of

the district court, urging that such an exception be made for

State Rule 3.8(f). By letter dated December 3, 1997, the court

declined to craft a specific exception, indicating that Stern's

concerns would be resolved on a case-by-case basis. On January

1, 1998, Rule 3.8(f) went into effect. At that point, Stern

directed his staff to hold in abeyance any applications to the

district court for attorney subpoenas.

Stern and Craig C. Donsanto (a senior DOJ lawyer based

in Washington and a member of the Massachusetts bar), both

acting in their official capacities, filed suit in the district

court on May 13, 1998. They sought to have both State Rule

3.8(f) and Local Rule 3.8(f) declared invalid as applied to

members of the Massachusetts bar practicing before federal

courts. The complaint alleged in substance that Rule 3.8(f), in

both its federal and state incarnations, exceeded the district

court's rulemaking authority, contradicted the federal common

law anent grand jury practice, conflicted with the federal rules

of criminal procedure and evidence, and violated the Supremacy

Clause of the United States Constitution.

-8- Initially, the named defendants were the SJC, the

Massachusetts Board of Bar Overseers (the Board), Bar Counsel,

and the United States District Court itself.1 The complaint was

later amended to add as defendants the individual judges of the

district court (hereinafter, along with the court itself, the

Judicial Defendants).

The contours of the case were narrowed when Bar Counsel

filed an affidavit in which he vouchsafed that he would not

wield State Rule 3.8(f) against federal prosecutors, but,

rather, would refer any alleged violations to the federal

district court for discipline under Local Rule 3.8(f). This

concession rendered the Supremacy Clause issue moot and led the

plaintiffs to dismiss their claims against the SJC and the

Board. Rosenfeld then agreed not to attempt to enforce Local

Rule 3.8(f) against members of the Massachusetts bar practicing

outside the commonwealth, and Donsanto dropped out of the

picture.

Stern had moved at the outset for preliminary

injunctive relief. All the defendants opposed this motion, and

the Judicial Defendants filed a motion to dismiss the complaint

1The SJC administers professional responsibility matters through the Board. In turn, Bar Counsel, currently Arnold R. Rosenfeld, serves as the Board's chief enforcement officer. See S.J.C. R. 4:01.

-9- as unripe. The district court heard argument on October 7,

1998, and took both motions under advisement. While the court

was pondering the matter, the President signed into law a bill,

now codified at 28 U.S.C. § 530B, that made certain state

standards directly applicable to federal prosecutors. The

parties debated the relevance and effect of this provision in a

series of subsequent submissions.

The district court ultimately determined the issues

presented to be ripe for review and rejected the claim that

section 530B rendered the controversy moot. See Stern v. SJC,

, 13-14 & n.5 (D. Mass. 1999). Then, reading

subparagraphs (1) and (2) independently, the court found

Whitehouse controlling in part and upheld both the prior

judicial approval requirement and the provision for an

adversarial hearing. See

. Finally, the court

approved the substantive requirements of subparagraph (1) as

ethical precepts not inconsistent with federal law. See

. Following the entry of a final judgment, Stern launched

this appeal.

II. RIPENESS

-10- We consider de novo the Judicial Defendants' contention

that the controversy is not ripe for adjudication. See Riva v.

Massachusetts,

(1st Cir. 1995).

The ripeness doctrine has both constitutional and

prudential dimensions. See Public Serv. Comm'n v. Wycoff Co.,

(1952); Rhode Island Ass'n of Realtors v.

Whitehouse,

(1st Cir. 1999). Its basic

rationale is "to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract

disagreements." Abbott Labs. v. Gardner,

(1967). Courts must apply a two-part test to assess ripeness.

See

. First, it is necessary to determine whether the

issue presented is fit for judicial review — an inquiry that

"typically involves subsidiary queries concerning finality,

definiteness, and the extent to which resolution of the

challenge depends on facts that may not yet be sufficiently

developed." Ernst & Young v. Depositors Econ. Protection Corp.,

(1st Cir. 1995). Second, it is necessary to

evaluate the extent to which withholding judgment will impose

hardship — an inquiry that typically "turns upon whether the

challenged action creates a 'direct and immediate' dilemma for

the parties." W.R. Grace & Co. v. EPA,

(1st

Cir. 1992) (quoting Abbott Labs.,

). Both prongs

-11- of the test ordinarily must be satisfied, although a very strong

showing on one axis may compensate for a relatively weak showing

on the other. See Ernst & Young,

.

This case, which questions whether the federal district

court has the power to incorporate State Rule 3.8(f) into the

armamentarium of its local rules, passes the first prong of the

test. The issue presented can be finally resolved by

declaratory judgment, its contours are sharply defined, and

additional facts will not affect its resolution. The conclusion

that the issue is fit for review is bolstered, moreover, by a

realization that deciding the question appears unavoidable:

Local Rule 3.8(f) imposes new substantive and procedural

requirements on prosecutors who request attorney subpoenas, and

Bar Counsel has stated unequivocally that he will enforce those

requirements. Since bringing this suit, the United States

Attorney has delayed requests for no fewer than twenty-six such

subpoenas, and it seems reasonable to suppose that in some of

these instances the prosecutors would have had difficulty in

satisfying the "essentiality" and/or "no feasible alternative"

criteria. Short of a continuation of Stern's self-imposed

moratorium — and the public has a right to expect that such a

state of affairs will not last indefinitely — a test of Local

Rule 3.8(f)'s facial validity appears inevitable.

-12- This case also satisfies the hardship prong. Delaying

adjudication until a more concrete controversy emerges (until,

say, a particular attorney subpoena request reaches the judicial

preapproval stage or disciplinary proceedings are instituted in

the aftermath of a served subpoena) would inflict significant

institutional costs with little corresponding gain. Indeed,

charting such a course would put Stern on the horns of a

dilemma, forcing him to decide whether to serve attorney

subpoenas in cases arguably prohibited by the local rule and

thus risk potential sanctions or to refrain from so doing and

thus jeopardize the success of ongoing criminal investigations.

It is precisely this sort of "'direct and immediate' dilemma,"

W.R. Grace,

(quoting Abbott Labs.,

), that Congress wished to ameliorate when it passed the

Declaratory Judgment Act. See ANR Pipeline Co. v. Corporation

Comm'n,

, 1578 (10th Cir. 1988) ("Once the gun has

been cocked and aimed and the finger is on the trigger, it is

not necessary to wait until the bullet strikes to invoke the

Declaratory Judgment Act.").

A determination that this case is ripe for adjudication

squares with the way in which we, and other courts of appeals,

have treated analogous cases (albeit without explicit discussion

of ripeness). In Klubock, this court fielded a preemptive

-13- strike by federal prosecutors against a newly adopted ethics

rule. In Whitehouse, we entertained a similar foray, explaining

that "the proper method for mounting a facial challenge to the

validity of [a local rule] . . . is through an action for

declaratory and/or injunctive relief filed in the district

court."

. Moreover, two other courts of appeals

have adjudicated pre-enforcement challenges to ethics rules in

parallel circumstances. See United States v. Colorado Supreme

Court,

(10th Cir. 1999) (CSC II); Baylson,

.

Another case that sheds light on the question of

ripeness is United States v. Colorado Supreme Court,

(10th Cir. 1996) (CSC I). There, the Tenth Circuit held

that the United States had standing to mount a pre-enforcement

challenge to a local rule identical to Local Rule 3.8(f),

crediting the government's stated trepidation that the rule

would interfere with federal subpoena practice. See

. Although the CSC I court did not discuss ripeness per

se, standing and ripeness often overlap. See Rhode Island Ass'n

of Realtors,

. So here: we think that the

court's finding of standing necessarily implied that the

controversy was ripe for adjudication.

-14- In a pre-enforcement challenge to a law carrying

significant penalties, standing exists when the plaintiff has

manifested an intention to engage in conduct arguably proscribed

by the statute, and there exists a "credible threat" of

enforcement. New Hampshire Right to Life Political Action Comm.

v. Gardner,

(1st Cir. 1996). In most situations,

as here, that self-same credible threat serves to render the

case fit for judicial review and to demonstrate the hardship

that will result should no review ensue. See Rhode Island Ass'n

of Realtors,

(stating that a "concrete plan[] to

engage immediately (or nearly so) in an arguably proscribed

activity . . . gives a precise shape to disobedience, posing a

specific legal question fit for judicial review," and "[a]

showing that the challenged statute, fairly read, thwarts

implementation of the plan adds the element of hardship").

The Judicial Defendants' vigorous arguments to the

contrary are ultimately unpersuasive. Citing Ernst & Young,

they asseverate that Stern's claims are too contingent and

uncertain to be fit for review. But the examples they give

include events that are almost certain to materialize (e.g.,

internal DOJ approval of an application for a subpoena addressed

to an attorney), and events that are completely irrelevant

(e.g., destruction of evidence by a targeted attorney). Stern

-15- stands poised to request and serve attorney subpoenas, but

reasonably fears disciplinary proceedings (for himself and his

staff) if he does so. Thus, the only contingency likely to

deter the parties from a collision course is continued self-

restraint on the part of Stern's office. This is a far cry from

Ernst & Young, where the relevant injury would materialize, if

at all, only after a long chain of remote and speculative

events, many of which involved third parties.2 See

.

Next, the Judicial Defendants note that the "linchpin

of ripeness . . . is adverseness." Rhode Island v. Narragansett

Indian Tribe,

(1st Cir. 1994). Building on

this foundation, they complain that the current controversy

lacks adverseness because the lawyers potentially subject to

subpoena (and their clients, for that matter) are unrepresented.

This rather simplistic formulation overlooks, however, that as

a general rule a "conflict between state officials empowered to

enforce a law and private parties subject to prosecution of that

law is a classic 'case' or 'controversy' within the meaning of

2 Massachusetts Ass'n of Afro-American Police v. Boston Police Department,

(1st Cir. 1992) (per curiam), is similarly distinguishable. There, we found a pre-enforcement challenge unripe because the party with the power to inflict the feared injury had expressly disclaimed any intent to do so. See

.

-16- Art. III." Diamond v. Charles,

(1986). The

defendants here are empowered to enforce the strictures of Local

Rule 3.8(f) through disciplinary proceedings against Stern and

his subalterns. This type of controversy is thus sufficiently

adverse even though the class of persons that the law was

designed to protect is not separately represented. After all,

that class "lacks a judicially cognizable interest in the

prosecution or nonprosecution" of Stern or the other attorneys

in his office. Linda R.S. v. Richard D.,

(1973). Consequently, the fact that the district court adopted

Local Rule 3.8(f) out of a desire to shield the attorney-client

relationship does not mean that particular attorneys and clients

must be joined in a facial attack on the rule.

Finally, the Judicial Defendants suggest that the DOJ

guidelines render this case unripe. Because the standards

contained in the guidelines and those contained in Local Rule

3.8(f) overlap, this thesis goes, there is scant likelihood that

Local Rule 3.8(f) will work any harm. This thesis has a

plausible ring but, in the last analysis, it fails to cover the

ground. We explain briefly.

There is no question that the DOJ guidelines'

"reasonably needed" criterion, 3 Department of Justice Manual §

9-13.410, at 9-165 (2d ed. 2000), is markedly less demanding

-17- than the "essentiality" requirement contained in Local Rule

3.8(f). We think that the DOJ criteria are also less demanding

than the "no feasible alternative" requirement; the guidelines

stipulate that "all reasonable attempts shall be made to obtain

the information from alternative sources . . . unless such

efforts would compromise the investigation or case," id.

(emphasis supplied), whereas the "no feasible alternative"

provision contains no similar loophole. In all events, the

guidelines are subject to change at the whim of the DOJ. Last

(but not least), an internal review mechanism that specifically

disavows any intent to create legally enforceable rights

obviously does not burden prosecutors in the same way, or to the

same extent, as does a binding rule of court that imposes

substantive standards, requires prior judicial approval, and

subjects government attorneys to potential disciplinary action.

Cf. Whitehouse,

n.18 (suggesting that DOJ

guidelines did not render a prior judicial approval requirement

superfluous). For these reasons, we reject the notion that the

mere existence of the DOJ guidelines dissipates any hardship.

We have said enough on this score. The threat of

ethics enforcement is genuine, compliance costs are real and

immediate, and the chilling effect on attorney subpoena requests

constitutes an injury sufficient to support a justiciable

-18- controversy. See CSC I,

. Thus, the issue

presented here — the authority of the federal district court to

incorporate State Rule 3.8(f) into its local rules — is ripe for

review.

III. THE MERITS

The authority of the federal district courts to adopt

local rules emanates from three sources. First, Congress has

empowered the Supreme Court to prescribe rules of practice and

procedure for the federal courts. See

(a). In

turn, the Supreme Court has authorized district courts to craft

local rules to implement, or fill gaps in, national rules of

practice and procedure. See Fed. R. Crim. P. 57(a)(1); Fed. R.

Civ. P. 83(a)(1). Second, Congress has vested the lower federal

courts with independent authority to prescribe local rules. See

(a). Third, district courts have inherent power

arising from the nature of the judicial process, and this power

extends to certain types of rulemaking. See Chambers v. NASCO,

Inc.,

(1991); Whitehouse,

.

Regardless of the source, local rulemaking authority

is bounded. A local rule must be both constitutional and

rational, and its subject matter must be within the ambit of the

court's regulatory power. See Frazier v. Heebe,

(1987); Whitehouse,

. In this same vein,

-19- a local rule must be consistent with, but not duplicative of,

Acts of Congress and nationally applicable rules of practice,

procedure, and evidence. See

(a); Fed. R. Crim.

P. 57(a)(1); Fed. R. Civ. P. 83(a)(1). Even if a local rule

does not contravene the text of a national rule, the former

cannot survive if it subverts the latter's purpose. See Hawes

v. Club Ecuestre el Comandante,

(1st Cir.

1976). Then, too, local rules should cover only interstitial

matters. See Fed. R. Crim. P. 57 advisory committee's note; see

also United States v. Horn,

(1st Cir. 1994)

(noting that a court's inherent power has definite limits).

They may not create or affect substantive rights, see

(b), or institute "basic procedural innovations," Miner

v. Atlass,

(1960).

The core issue presented by this appeal is whether the

district court had the power to adopt Local Rule 3.8(f). This

question of law engenders de novo review. Before answering this

query, however, we pause to measure its dimensions.

A. How to Construe Local Rule 3.8(f).

-20- At Bar Counsel's urging, the court below read

subparagraphs (1) and (2) of Local Rule 3.8(f) independently.

See Stern,

. On this bifurcated reading, the

substantive standards delineated in subparagraph (1) would be

relevant only to potential disciplinary proceedings, and a court

deciding whether to approve a subpoena request pursuant to

subparagraph (2) would have no obligation to apply them. We

reject this artificial construction of Local Rule 3.8(f).

The most sensible way to construe Local Rule 3.8(f) is

as a unified whole. Each subparagraph is a mere sentence

fragment and neither makes sense without reference to the shared

introductory language. Court rules, like statutes and

ordinances, generally are to be read in a holistic manner. See,

e.g., King v. St. Vincent's Hosp.,

(1991);

Massachusetts Ass'n of HMOs v. Ruthardt,

(1st

Cir. 1999); O'Connell v. Shalala,

(1st Cir.

1996). This tenet applies with special force when subdivisions

are grammatically interrelated. See American Standard, Inc. v.

Crane Co.,

(2d Cir. 1974).

Here, the case for reading the rule as a whole is even

stronger, for the connection between the two halves is not only

grammatical but also logical. Subparagraph (2) outlines a

process for determining whether a subpoena application should be

-21- approved, but gives no clue as to what standard a judge is to

apply in making that determination. The obvious place to look

is subparagraph (1), which sets forth such a standard. Indeed,

the court below acknowledged that "as a practical matter, a

court faced with a request for an attorney-subpoena is likely to

engage in a similar inquiry in the course of determining whether

issuance of the subpoena is appropriate." Stern,

n.12. The presence of the attorney to be subpoenaed — a

feature not involved in the scheme upheld in Whitehouse —

virtually guarantees such an inquiry.

On the other hand, subparagraph (2) would serve no

purpose if courts evaluated subpoena applications solely on the

basis of traditional motion-to-quash standards. For the

adversarial hearing to be meaningful, the targeted attorney

would have to be told in advance of the content of the testimony

or materials sought. This notice, no less than service of the

subpoena itself, would drive a wedge of distrust between lawyer

and client. Thus, subparagraph (2), on the bifurcated reading,

would mirror existing quashal procedure and generate no ethics

benefits whatsoever.

The sockdolager is that the original drafters certainly

intended that the two subparagraphs of the rule be harmonized,

not balkanized. As discussed above, the text of Local Rule

-22- 3.8(f) derives from (and is identical to) a former ABA Model

Rule. The comment to that rule made it transparently clear that

the judicial preapproval described in subparagraph (2) was

designed to ensure compliance with the substantive standards

described in subparagraph (1). Absent some specific disclaimer

(not present here), the district court cannot adopt verbatim the

text of a model rule without accepting the drafters' unequivocal

interpretation of its meaning. Cf. Felix Frankfurter, Some

Reflections on the Reading of Statutes,

,

537 (1947) ("[I]f a word is obviously transplanted from another

legal source . . . it brings the old soil with it.").

To be sure, when the SJC formulated State Rule 3.8(f),

it omitted the second sentence of the comment to the former ABA

rule (which made the connection between the two subparagraphs

explicit). But see Whitehouse,

nn.12 & 14,

1364-65 (noting that comments and commentary are not binding).

In addition, the Massachusetts version lists as the sources for

subparagraph (2) both former ABA Model Rule 3.8(f)(2) and PF 15,

and the latter rule has been interpreted to impose no

substantive restrictions beyond the prototypical motion-to-quash

standards. See Klubock,

& n.7, 124. But

these reeds are far too slender to shore up a construction that

splits grammatically interrelated provisions, imports a standard

-23- of review from outside the ethics code, and directly contradicts

the drafters' manifest intention.

Bar Counsel also argues that we should defer to his

construction because he is the official charged with enforcement

of ethics rules in Massachusetts. With respect, we doubt that

Bar Counsel's litigation position is entitled to any deference.

Cf. Bowen v. Georgetown Univ. Hosp.,

(1988)

(holding that an agency's litigating position is not entitled to

deference); Massachusetts v. Blackstone Valley Elec. Co.,

(1st Cir. 1995) (same). In all events, Bar

Counsel's construction does not bind the judges of the District

of Massachusetts who, as defendants here, have pointedly refused

to endorse it.3 Finally, any deference that might normally be

due is overcome here by the availability of a much more logical

reading and a clear statement of the drafters' intent. Cf. 12

Charles Alan Wright et al., Federal Practice & Procedure § 3153,

at 533 (2d ed. 1997) (explaining that even "a district court's

construction of its own rule will be reversed if the appellate

court is convinced that the district court has misconstrued its

own rule").

3 Consistent with their position that the controversy is not ripe, the Judicial Defendants apparently deem it incumbent upon them to refrain from rendering what might be seen as an advisory opinion.

-24- Bar Counsel next invokes the principle that courts

should resist interpreting a statute in a way that provokes a

constitutional problem. See United States v. Gifford,

(1st Cir. 1994). Other courts of appeals have extended

this principle to the construction of local rules, thereby

seeking to avoid interpretations that place local rules on a

collision course with national rules. See, e.g., Marshall v.

Gates,

(9th Cir. 1995); United States v. White,

(2d Cir. 1992); cf. Jaroma v. Massey,

(1st Cir. 1989) (per curiam) (explaining that ambiguous

"[l]ocal district court rules cannot be construed in such a way

as to render them inconsistent with applicable provisions of the

Federal Rules of Civil Procedure").

There are reasons to question whether such an extension

of the principle is appropriate; after all, striking down a

local rule, unlike declaring a statute unconstitutional, does

not implicate separation of powers or countermajoritarian

concerns. But even assuming, for argument's sake, the validity

of the extended principle — on the ground, say, that the local

rule here derives from a state rule, and that the issue

therefore has overtones of comity — it does not control the

outcome in this instance. Interpretive ingenuity has its

limits. The idea that judges charged with interpreting a rule

-25- should strive to do so in a way that will avoid conflicts with

governing law is a useful device in doubtful cases, but it does

not permit the interpreters to substitute their judgment for

that of the drafters or to rewrite the rule from scratch. Here,

there is both a natural, holistic reading of the local rule and

a clear statement by the drafters in support of such a reading.

In these circumstances, we will not embrace an implausible

construction simply to minimize the potential for conflict with

federal law.

For these reasons, we hold that Local Rule 3.8(f) must

be read as an indivisible whole. Consequently, judicial

preapproval under subparagraph (2) of the rule proceeds, if at

all, on the basis of the substantive standards elucidated in

subparagraph (1).

B. Rule 3.8(f) as Applied to Grand Jury Subpoenas.

Because local rulemaking authority is at a lower ebb

in the grand jury context, we ease first into those relatively

shallow waters.

The grand jury is deeply rooted in Anglo-American

tradition and is "a constitutional fixture in its own right."

United States v. Williams,

(1992) (internal

quotation marks omitted). It is not a part of either the

Executive or Judicial Branch, but, rather, "a kind of buffer .

-26- . . between the Government and the people."

Accordingly,

"any power federal courts may have to fashion, on their own

initiative, rules of grand jury procedure is a very limited one,

not remotely comparable to the power they maintain over their

own proceedings."

. A local rule may not

"substantially alter[] the traditional relationships between the

prosecutor, the constituting court, and the grand jury itself."

Nor may a local rule trench upon any core attribute of the

grand jury, including: "1) its independence from the court's

supervision; 2) its broad investigative powers; 3) the

presumption of validity accorded its subpoenas; 4) the secrecy

of its proceedings; [or] 5) its general freedom from procedural

detours and delays." Whitehouse,

. It is

against this backdrop that we take the measure of Local Rule

3.8(f) as it pertains to grand jury subpoenas.

We do not write on a pristine page. As the defendants

repeatedly remind us, Whitehouse held that a local rule

requiring judicial preapproval for the service of an attorney

subpoena neither undermined the historic role of the grand jury

nor interfered with its essential attributes. See

at 1357-

62. But this holding rested squarely on the panel's

determination that the particular local rule worked no

substantive change in the governing law because judicial

-27- preapproval would be granted or denied under traditional motion-

to-quash standards. See

at 1357-58 & nn.12-13 (explaining

that the rule "merely authorizes district courts to reject a

prosecutor's attorney-subpoena application for the traditional

reasons justifying the quashing of a subpoena"); see also Fed.

R. Crim. P. 17(c) (authorizing courts to quash a subpoena "if

compliance would be unreasonable or oppressive"). In so

holding, the Whitehouse court brushed aside the seemingly more

rigorous criteria delineated in the comment to the rule, on the

ground that the comment was merely advisory. See

n.12. So viewed, the rule imposed no additional burden on

grand jury independence because courts, in theory, would apply

the motion-to-quash standards that govern under Rule 17, not the

comment's suggested criteria, in determining whether to approve

an attorney subpoena request.4

4 To be sure, the panel also suggested that the preapproval process did not impede grand jury independence because it did not apply to subpoenas sought by the grand jury acting independently from the prosecutor. See Whitehouse,

. While we are bound by the holding of Whitehouse, we eschew this component of its reasoning. As a practical matter, grand jury subpoenas are almost universally issued by and through federal prosecutors. See, e.g., In re Grand Jury Matters (United States),

(1st Cir. 1984). Moreover, the Supreme Court has explicitly rejected the notion that an otherwise impermissible rule of grand jury procedure becomes permissible if it is enforced against the prosecutor instead of the grand jury itself. See Williams,

.

-28- The Rhode Island rule's saving grace is absent here.

Local Rule 3.8(f) differs significantly in that it imposes new

substantive requirements for judicial preapproval of grand jury

subpoenas. In so doing, the rule alters the grand jury's

historic role, places it under overly intrusive court

supervision, curbs its broad investigative powers, reverses the

presumption of validity accorded to its subpoenas, undermines

the secrecy of its proceedings, and creates procedural detours

and delays. It therefore impermissibly interferes with grand

jury proceedings. See 1 Hazard & Hodes, supra, § 3.8:701, at

702 (Supp. 1997) ("Rule 3.8(f) in its original form seemed

clearly invalid . . . as applied to . . . federal grand jury

subpoenas to criminal defense lawyers.").

Because any one of these vices would suffice to

invalidate the rule as applied to grand jury subpoenas, we

confine our discussion to two of the most glaring defects:

Local Rule 3.8(f)'s impact on grand jury secrecy and its

potential as an incubator for delay. In United States v. R.

Enterprises, Inc.,

(1991), the Court held that the

government could not be required to demonstrate that the

materials sought by a grand jury subpoena were relevant. See

. The Court explained that such a requirement

"'would saddle a grand jury with minitrials and preliminary

-29- showings,'"

(quoting United States v. Dionisio,

(1973)), and would "threaten[] to compromise 'the

indispensable secrecy of grand jury proceedings,'"

at 299

(quoting United States v. Johnson,

(1943));

see also Fed. R. Crim. P. 6(e) (cloaking grand jury proceedings

in secrecy). Requiring a prosecutor to show that subpoenaed

evidence is essential and not otherwise feasibly obtainable

would have the same two impermissible effects. Consequently, we

hold that Local Rule 3.8(f), as it pertains to grand jury

subpoenas, encroaches unduly upon grand jury prerogatives and,

therefore, is ultra vires.

C. Rule 3.8(f) as Applied Outside the Grand Jury Context.

Outside the grand jury context, Stern asseverates that

Local Rule 3.8(f) is beyond the district court's competency

because it goes past the "matters of detail" appropriate for

local rulemaking, Fed. R. Crim. P. 57 advisory committee's note,

and works a fundamental procedural change. This argument

depends heavily on Miner v. Atlass, in which the Court held that

a local admiralty rule authorizing oral discovery depositions

exceeded the district court's rulemaking authority. See

. The Court reasoned that this innovation, "though

concededly 'procedural,' may be of as great importance to

litigants as many a 'substantive' doctrine."

Accordingly,

-30- it was too basic to be effectuated through local rulemaking.

See

In Colgrove v. Battin,

(1973), the Court

elaborated on this concept, explaining that "[t]he 'basic

procedural innovations' to which Miner referred are those

aspects of the litigatory process which bear upon the ultimate

outcome of the litigation."

at 163 n.23. Applying this

taxonomy, the Court upheld a local rule providing for six-member

civil juries in lieu of traditional twelve-member juries because

the party challenging the rule had not shown any discernible

difference in the results reached. See

Synthesizing Miner

and Colgrove, we conclude that the relevant inquiry is whether

Local Rule 3.8(f), applied outside the grand jury context, is

apt to affect the ultimate outcome of criminal proceedings. See

Eash v. Riggins Trucking Inc.,

(3d Cir. 1985)

(en banc).

The answer to this inquiry depends, in the first

instance, on current practice under Fed. R. Crim. P. 17. Rule

17(c) authorizes subpoenas for the production of documentary

evidence, objects, and the like. That rule prescribes a

procedure and a standard for challenging such subpoenas: "The

court on motion made promptly may quash or modify the subpoena

if compliance would be unreasonable or oppressive." The Supreme

-31- Court elucidated the meaning of this standard in United States

v. Nixon,

(1974), holding that a subpoena duces

tecum is not "unreasonable or oppressive" if the proponent

establishes relevancy, admissibility, and specificity. See

.

Roughly the same standard applies to subpoenas

compelling the attendance of witnesses, i.e., subpoenas ad

testificandum. Although Rule 17(a), which governs such

subpoenas, does not provide explicitly for quashal or

modification, courts routinely have entertained motions seeking

such relief and decided them by reference to comparable

principles. Specifically, a subpoena ad testificandum survives

scrutiny if the party serving it can show that the testimony

sought is both relevant and material. See United States v.

Valenzuela-Bernal,

(1982); United States v.

Campbell,

(1st Cir. 1989).

These traditional standards for quashal of trial

subpoenas form the template for further inquiry here. 5 As we

5 It bears emphasis that the motion-to-quash standards applicable to trial subpoenas historically have not been applied to grand jury subpoenas. See R. Enters.,

(holding that recourse to the Nixon criteria would unduly interfere with grand jury proceedings); In re Grand Jury Proceedings (Hill),

, 5 n.2 (1st Cir. 1986) (per curiam) (declining to require a showing of "need" or "relevance" before a court may enforce a grand jury subpoena directed to an attorney). Because grand jury subpoenas are sui generis, we use

-32- have said, Local Rule 3.8(f) requires a prosecutor, before

serving an attorney subpoena, to demonstrate that the

information sought is essential, not privileged, and not

otherwise feasibly available. These are significant departures

from prior practice, and they raise the bar for obtaining

relevant and material evidence. Collectively, they work changes

too fundamental to be accomplished under the aegis of the

district courts' local rulemaking power.

In particular, the "essentiality" and "no feasible

alternative" requirements are substantially more onerous (and,

thus, more restrictive) than the traditional motion-to-quash

standards. Essentiality is obviously a more demanding criterion

than relevancy or materiality. By like token, Rule 17

jurisprudence contains no corollary to the principle that a

subpoena issued to one source cannot stand if the information

sought is (or may be) available from some other source.

Two examples illustrate these points. Suppose, in a

robbery case, that a defense lawyer received a lump-sum advance

payment for services in the precise amount of the purloined

funds from a client with no visible means of support. There is

other evidence linking the client to the robbery, so the billing

the term "trial subpoenas" as a shorthand for all other subpoenas (e.g., subpoenas issued in the course of pretrial hearings).

-33- information could not fairly be described as "essential" to the

prosecution. Hence, Local Rule 3.8(f) would prohibit the

prosecutor from serving a subpoena on the defense attorney,

notwithstanding the unarguable materiality and relevancy of the

retainer information. Next, consider unprivileged documents in

a lawyer's file relating to a complex, and possibly fraudulent,

international real estate transaction. These documents may be

obtainable without a subpoena duces tecum directed to the

lawyer, but only through time-consuming, relatively expensive

(but still feasible) alternative means. Local Rule 3.8(f) would

prohibit an attorney subpoena, even though the situation easily

satisfies standards of relevancy, admissibility, and

specificity.

These examples are not eccentric hypotheticals, but,

rather, fairly typical of the sort of situation in which a

prosecutor might wish to serve an attorney subpoena (others

easily can be conceived). We think that they demonstrate

convincingly that Local Rule 3.8(f) imposes novel requirements

that threaten to preclude the service of otherwise unimpeachable

subpoenas and thus restrict the flow of relevant, material

evidence to the factfinder. Considering that compelling the

production of evidence is of "great importance" to litigants,

Miner,

, this is a fairly drastic alteration of

-34- the rules — too basic to be effected through local rulemaking.6

See Klubock,

(equally divided en banc) (opinion

of Breyer, J.) (suggesting that a local rule imposing standards

of review for attorney subpoenas stricter than traditional

motion-to-quash standards would fall outside the district

court's rulemaking authority).

Moreover, unlike in Colgrove,

n.23,

there has been no showing here that Local Rule 3.8(f) will not

affect the outcome of criminal proceedings. Indeed, there is

every reason to believe that the opposite is true. Local Rule

3.8(f) imposes new substantive requirements applicable only to

prosecutors and creates a novel procedural device to ensure that

these requirements are enforced. The likely result will be

fewer attorney subpoenas served by the government; as the

comment to the rule makes clear, the goal is "to limit the

issuance of lawyer subpoenas." Certain evidence, as long as a

court finds that it is not "essential," will never reach the

trier of fact. So, too, when the government decides that the

6 In striking down a local rule in Miner, the Court repeatedly cited the fact than an analogous national rule had been considered and rejected. See Miner,

. The situation here is reminiscent of that scenario: Congress declined to enact a bill sponsored by Senator Paul Simon that was designed to "provide procedural safeguards with respect to the issuance of lawyer client subpoenas." 134 Cong. Rec. 21,589, 21,599 (1988).

-35- "feasible alternative" to an attorney subpoena is not worth the

additional effort. In short, Local Rule 3.8(f), if permitted to

stand, will make it measurably more difficult for prosecutors to

secure convictions. The magnitude of this new burden is simply

too large to be imposed by local rule. Accordingly, the rule

cannot stand.

The Third Circuit reached the same conclusion with

respect to a closely analogous rule. At issue there was

Pennsylvania's analog to Local Rule 3.8(f), which required

judicial preapproval for attorney subpoenas in criminal

proceedings. See Baylson, 975 F.2d at 104. The comment to the

rule7 stipulated that approval normally would be denied unless

the court found that the information sought was relevant and not

confidential or privileged, that compliance would not be

unreasonable or oppressive, that the primary purpose of the

subpoena was not harassment, and that there were no feasible

alternative means of obtaining the information sought. See id.

Although only the "no feasible alternative" requirement was

substantively new, the court held that the rule went beyond the

"matters of detail" contemplated by Fed. R. Crim. P. 57 and thus

transcended local rulemaking authority. See id. at 108-09.

7 The Third Circuit, unlike the panel in Whitehouse, see

n.12, assumed that trial courts would not ignore the comment in applying the rule. See Baylson, 975 F.2d at 109.

-36- Because it requires essentiality as well, Local Rule 3.8(f)

represents an even greater encroachment than the rule that

confronted the Baylson court.

D. Section 530B.

Shortly after the hearing in the district court,

Congress passed an omnibus budget bill. The bill contained a

provision entitled "Ethical standards for attorneys for the

Government," now codified as section 530B, which provides that:

An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.

28 U.S.C. § 530B(a). Bar Counsel asserts that this passage

cures any conflict between Local Rule 3.8(f) and other federal

law. We do not agree.

"Because of the fundamental importance of the

principles shielding federal installations and activities from

regulation by the States, an authorization of state regulation

is found only when and to the extent there is a clear

congressional mandate, specific congressional action that makes

this authorization of state regulation clear and unambiguous."

Hancock v. Train,

(1976) (footnotes and

internal quotation marks omitted). We believe it is reasonable

-37- to require comparable specificity before inferring congressional

intent to abandon the goal of national consistency anent rules

of federal practice. Moreover, that benchmark is not attainable

here: it simply cannot be said that Congress, by enacting

section 530B, meant to empower states (or federal district

courts, for that matter) to regulate government attorneys in a

manner inconsistent with federal law. We explain briefly.

The federal rules of procedure, unlike state laws, are

nationally uniform. See

(a); Fed. R. Crim. P.

57(a)(1); Fed. R. Civ. P. 83(a)(1). In the area of ethics,

however, federal district courts generally have adopted their

own rules, often modeled on the rules of the state in which they

sit, but sometimes with significant deviations. See, e.g., D.

Mass. R. 83.6(4)(B) (stating that SJC ethics rules govern

"except as otherwise provided by specific rule of this court").

The potential for conflict between state and federal law

therefore should have been obvious, but section 530B does not

speak to the issue. Instead, Congress directed the Attorney

General to fill out the details of enforcement by regulation.

See 28 U.S.C. § 530B(b) (empowering the Attorney General to

promulgate implementing regulations). These regulations dispel

the notion that section 530B grants states and lower federal

courts the power, in the guise of regulating ethics, to impose

-38- strictures that are inconsistent with federal law. See

(b) (directing that section 530B "should not be

construed in any way to alter federal substantive, procedural,

or evidentiary law").

The Eleventh Circuit recently had the opportunity to

consider the effect of section 530B. That court rejected the

argument that the statute cured an incipient conflict between a

state ethics rule (which had been incorporated into the federal

district court's local rules) and the federal rules of evidence.

See United States v. Lowery,

(11th Cir.

1999). The court wrote: "If Congress wants to give state

courts and legislatures veto power over the admission of

evidence in federal court, it will have to tell us that in plain

language using clear terms."

. We agree with this

pronouncement and apply it here: because Local Rule 3.8(f)

impermissibly interferes with federal grand jury practice and

transcends district court rulemaking authority, section 530B

cannot salvage it.

If more were needed — and we doubt that it is — Local

Rule 3.8(f) clearly extends beyond the shelter that section 530B

provides. Although the statutory text, which refers to "State

laws and rules, and local Federal court rules, governing

attorneys," is arguably susceptible to a broad interpretation,

-39- we have noted before that a statute's caption may assist in

clarifying ambiguities. See, e.g., Massachusetts Ass'n of HMOs,

; Berniger v. Meadow Green-Wildcat Corp.,

(1st Cir. 1991). The title of the statute here

("Ethical standards for attorneys for the Government") removes

any doubt about its scope: section 530B applies only to ethical

standards. This conclusion becomes irresistible in light of the

legislative history and implementing regulations. See, e.g.,

H.R. Conf. Rep. No. 105-825, at 1102 (1998); 144 Cong. Rec. E301

(daily ed. Mar. 5, 1998) (statement of sponsor, Rep. McDade);

(b), 77.2(h).8

That ends the matter. Local Rule 3.8(f), though

doubtless motivated by ethical concerns, has outgrown those

humble beginnings. Substance, not form, must control. See

(h)(1) (explaining that the applicability of

section 530B does not depend on "whether or not [the state or

local] rule is included in a code of professional responsibility

for attorneys"). As written, Local Rule 3.8(f) is more than an

ethical standard. It adds a novel procedural step — the

opportunity for a pre-service adversarial hearing — and to

8Unlike Bar Counsel, we do not ascribe much weight to the dire predictions of broader applicability made by opponents of section 530B. See, e.g., 144 Cong. Rec. S12,996-97 (daily ed. Nov. 12, 1998) (statement of Sen. Abraham); 144 Cong. Rec. S12,798-99 (daily ed. Oct. 21, 1998) (statement of Sen. Hatch).

-40- compound the matter, ordains that the hearing be conducted with

new substantive standards in mind.

In recommending the deletion of subparagraph (2) from

the former ABA Model Rule, the Standing Committee explained that

the judicial preapproval provision was an anomaly: "Rather than

stating a substantive ethical precept, it sets out a type of

implementing requirement that is properly established by rules

of criminal procedure rather than established as an ethical

norm." ABA Standing Comm. on Ethics and Prof'l Responsibility,

Report 101, at 7 (Aug. 1995). We agree with this assessment.

Because Local Rule 3.8(f) goes beyond the realm of ethics,

section 530B neither rescues it nor renders the instant case

moot.9 Cf. CSC II,

(relying on section 530B

to uphold an ethics rule consisting of subparagraph (1) but

without any provision for an adversarial hearing).

IV. CONCLUSION

We need go no further. We conclude that the authority

of the district court to adopt Local Rule 3.8(f) is ripe for

judicial review and that the two subparagraphs of the rule are

to be read together. Thus, the substantive standards delineated

in subparagraph (1) must guide a court in determining whether to

9 For essentially the same reason, Local Rule 3.8(f) is beyond the district court's inherent authority to regulate the conduct of attorneys appearing before it.

-41- approve an attorney subpoena in a pre-service hearing held

pursuant to subparagraph (2). We also conclude that the

adoption of Local Rule 3.8(f) exceeded the district court's

lawful authority to regulate both grand jury and trial

subpoenas. Finally, we conclude that 28 U.S.C. § 530B does not

repair these defects. Accordingly, we hold that Local Rule

3.8(f) is without force or effect.

Reversed.

-42-