UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1116

Summary Calendar

In Re Grand Jury Proceedings

 Jean Auclair.

VICTOR FEAZELL,

Appellant.

Appeal from the United States District Court

For the Northern District of Texas

( May 1, 1992 )

Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit

Judges.

POLITZ, Chief Judge:

Victor Feazell appeals an order requiring Charles Burton, his

attorney, to testify before a grand jury about conversations with

Feazell and rejecting Feazell's invocation of the attorney-client

privilege. Concluding that a valid attorney-client privilege

exists, we reverse.

Background

The facts underlying this appeal bear a close recounting.
2

This matter arises out of an ongoing criminal proceeding. On

July 2, 1991 a federal grand jury in the Western District of Texas

indicted Jean Auclair for mail fraud and for false declarations to

a federal court. Auclair was accused of participating in a scheme

involving a fraudulent lease between herself and Joseph V. Giffuni,

and she was accused of committing perjury in a civil action to

enforce the lease against Giffuni's estate. Auclair testified in

that trial that Giffuni signed the lease in her presence in

Feazell's law office. Upon conclusion of the trial the government

sought and obtained the indictment.

Auclair moved to recuse Judge Walter Smith of the Western

District of Texas on the grounds that Feazell was a material

witness in the criminal controversy regarding the Giffuni lease and

that Judge Smith had testified in a prior trial that Feazell's

reputation for truthfulness was bad. That testimony had received

wide coverage in the local Waco press. Feazell's involvement in

the Auclair case included: (1) drafting the Giffuni lease;

(2) testifying in the lease litigation that Giffuni had executed

the lease in his presence; and (3) having his secretary, Diane

Sanders, type the lease and, allegedly on his instructions,

perjuriously testify that Giffuni had signed the lease in Feazell's

office. Judge Smith recused himself and transferred the case to

the Northern District of Texas. It was assigned to Judge Jerry

Buchmeyer.

On December 9, 1991 an FBI agent served a grand jury subpoena

on Feazell's secretary, commanding her appearance before the grand
3

jury investigating the Auclair matter. She immediately called

Feazell in Austin from her home in Waco. Feazell explained her

obligations under the subpoena and offered to retain an attorney to

advise and represent her. Her husband, Mike Sanders, joined the

conversation and demanded that Feazell get an attorney for his wife

who "wasn't going to jail for anyone." That afternoon they went to

Feazell's home. Feazell attempted to contact Roy Minton, an

attorney who previously had represented him, but Minton was not

available. Feazell arranged an appointment with Charles Burton,

one of Minton's law partners, for the following Friday.

The following mise-en-scene is based on the testimony of Diane

and Mike Sanders and Burton at a hearing before Judge Buchmeyer on

February 7, 1992. On December 13, 1991 Feazell and Diane and Mike

Sanders journeyed together to Burton's office for the appointment

Feazell had arranged. The four met and conferred as a group.

Feazell gave Burton an account of the "facts" of the situation.

Burton then met with both Sanders together and then with each

separately. Finally he met separately with Feazell. When Burton

met with Diane Sanders alone she first sought assurances that he

would hold their discussions in confidence. Receiving this

assurance, she told Burton that Feazell had been lying and she then

told Burton the "truth." When Burton met with Mike Sanders alone

he told Burton that his wife's account was the "truth." After each

Sanders met with Burton, Feazell asked about their discussion.

Neither was forthcoming; Diane Sanders said she had confirmed

Feazell's account and Mike Sanders said they spoke only about the
4

Sanders' marriage. Burton declined to discuss his separate

conversation with Feazell. After the round of separate interviews,

Burton informed Diane and Mike Sanders that he could not represent

either of them because of potential conflicts.

Shortly after the meeting with Burton, Diane Sanders was

arrested by the FBI. The record before us does not reflect the

charge. She attempted to contact Burton and then retained Joe

Lehman as her counsel. The next day she was hospitalized for a

stress-related problem which required immediate surgery. While she

was recuperating, she and her husband signed a form purporting to

waive any attorney-client privilege existing between them and

Burton. Diane Sanders also gave the FBI a statement in which she

admitted that she had lied in the civil trial about the signing of

the Giffuni lease.

Following these developments, the federal prosecutor sought to

question Burton about the conversations during the meeting on

December 13, 1991 with the Sanders couple and Feazell. Burton

declined to answer those questions, asserting the attorney-client

privilege. The prosecutor responded with a subpoena for Burton to

appear in Waco on February 11, 1992 before the Western District

grand jury investigating Auclair. Apparently the prosecutor

informed Judge Buchmeyer that Burton would likely invoke the

attorney-client privilege in his appearance before the grand jury.

On February 5, 1992 the court caused Burton, Feazell, Mike and

Diane Sanders, and their counsel to be notified of a hearing to be

held in Dallas on February 7, 1992. Burton's attorney inquired as
5

to the nature of the hearing but was given no information. No

pleadings were filed; no oral advice was given by the prosecutor or

court personnel.

As the February 7, 1992 hearing began Feazell's attorney

inquired of the court: "May I respectfully ask the Court what we

are proceeding on so that I know what I'm required to do?" The

court responded by first referring to a non-existent government

motion and then stated, albeit a bit vaguely, that there had been

an assertion of attorney-client privilege. The prosecutor

interrupted with an explanation of the proceedings -- Burton had

been subpoenaed to appear before a grand jury in Waco, he was

expected to invoke the attorney-client privilege when questioned,

Judge Buchmeyer's court, to which the matter had been referred

after Judge Smith recused, was 100 miles distant from the grand

jury, thus presenting an inconvenience when and if Burton declined

to answer and a motion to compel was needed. With this the hearing

proceeded. Diane Sanders and Burton testified. Burton's counsel

urged the court to conduct an in camera examination of Feazell,

suggesting that such a discussion would clearly show Feazell's

expectation that his meeting with Mike and Diane Sanders and Burton

would result in Burton representing all three of them. The

district court rejected the proposal.

After hearing arguments of counsel the court ruled that Burton

was obliged to testify to the grand jury about the contents of his

separate conversation with Diane Sanders on December 13, 1991, as

well as to the conversation when he and Feazell and the two Sanders
6

met jointly. The court held that Diane Sanders had waived her

attorney-client privilege for her separate interview and that any

one of the three could waive the privilege for the joint

discussions. Finally, the court stated that there was no evidence

of a joint defense agreement and even if there had been the court's

ruling would be the same.

An order issued in accordance with this ruling and the court

declined to stay the order pending appellate review. On emergency

motion by Feazell we granted a stay and expedited his appeal of

that portion of the order directing Burton to testify about the

pre-representation interview with Burton in the presence of Diane

and Mike Sanders on December 13, 1991. The National Association of

Criminal Defense Lawyers was permitted to file an amicus brief

because of the importance of the issue presented.

Analysis

At the threshold we note serious concern about the juridical

basis, nature, and format of the February 7, 1992 proceedings which

resulted in the order which is the subject of this appeal. We find

no motion or other filing by the government invoking the court's

preemptive intervention in the anticipated reluctance of an

attorney to testify about matters told to the attorney by a client.

Efforts by counsel to learn of the nature of the proceedings, which

the affected persons were notified by telephone to attend, were

either rebuffed or ignored. We are told that the driving force was

the desire of the United States Attorney to avoid an inconvenience
 

1 United States District Court for the Northern District of

Texas, Local Rule Appendix I. Uniform Requirements on Motion

Practice (1991).

 

2 United States District Court for the Northern District of

Texas, Local Rule 5.1(a).

7

or delay in a grand jury investigation. It ought to be manifestly

apparent that the mere present or potential inconvenience to the

United States Attorney, a federal grand jury, or, for that matter,

the court, is not an adequate basis for abrogation of fundamental

due process tenets, the Federal Rules of Criminal Procedure, or

local court rules. In re Medrano, 956 F.2d 101 (5th Cir. 1992).

The Federal Rules of Criminal Procedure permit motions to be

made orally or in writing. Fed.R.Crim.P. 47 requires the motion to

state the grounds upon which it is made and the relief sought.

Fed.R.Crim.P. 45(d) requires that written motions be served not

less than five days before the time specified for the hearing. The

Local Rules of the Northern District of Texas stipulate that

"motion practice in civil and criminal cases is controlled by the

Uniform Requirements on Motion Practice" and Local Rules 5.1-5.5.

The Uniform Requirements mandate either a brief, or certificate of

conference or service, for every motion.1 Local Rule 5.1(a)

requires the filing party to confer with all other parties to

ascertain whether the motion will be opposed.2 Local Rule 5.1(c)

requires that contested motions include (i) a certificate that the

Rule 5.1(a) conference was held and the reasons why agreement could

not be reached, or (ii) a certificate explaining why the conference
 

3 United States District Court for the Northern District of

Texas, Local Rule 5.1(c).

 

4 United States District Court for the Northern District of

Texas, Local Rule Appendix 5.1(d).

 

5 United States District Court for the Northern District of

Texas, Local Rule Appendix 5.1(e).

 

6 We note that the local rules for the United States

District Court for the Western District of Texas are even more

stringent: All "motions in criminal cases . . . shall be in

writing." United States District Court for the Western District of

Texas, Local Rule CR-6 (1991).

8

could not be held.3 Local Rule 5.1(d) requires a proposed order

and brief to accompany each opposed motion.4 Local Rule 5.1(e)

provides ten days for the opposing party to respond.5 The Local

Rules do not except oral motions,6 and these local rules have the

force of law. United States v. Hvass, 355 U.S. 570 (1958); In re

Medrano. Nonetheless, because Feazell did not raise on appeal the

issue of procedural due process, and because of the fundamental

importance we perceive in the legal issue raised in this appeal, we

address the merits.

Attorney-Client Privilege

The application of the attorney-client privilege is a

"question of fact, to be determined in the light of the purpose of

the privilege and guided by judicial precedents." Hodges, Grant &

Kaufman v. United States Government, 768 F.2d 719, 721 (5th Cir.

1985). The clearly erroneous standard of review applies to the
 

7 Factual findings made under an erroneous view of the law

are not binding on the appellate court. S. Childress & M. Davis,

Federal Standards of Review, § 2.16 (2d ed. 1992) citing Johnson v.

Uncle Ben's, Inc., 628 F.2d 419 (5th Cir. 1980).

 

8 Sometimes referred to as the common interest rule.

United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989).

9

district court's factual findings. Fed.R.Civ.P. 52(a). Bryram v.

United States, 705 F.2d 1418 (5th Cir. 1983). We review the

application of the controlling law de novo.

7

All parties agree that if the attorney-client privilege is

applicable and not waived, then Burton cannot be forced to testify

about the December 13 conversations with Feazell. Beyond this

simple given, agreement between the parties is not extant. The

briefs contain extensive discussion on the issues of the existence

of a common or joint defense privilege8 and whether such privilege

has been proved by the facts at bar. The cases cited by the

parties and by the amicus generally involve attorney-client

privilege questions concerning matters arising after acceptance of

representation. We perceive, however, that there is a priming

issue in the resolution of this appeal -- the scope of the

attorney-client privilege in an instance of declined

representation.

A now venerable rule emanating from the privilege is that

"communications made in the course of preliminary discussions with

a view to employing the lawyer are privileged though employment is
 

9 McCormick on Evidence, § 88 (Cleary 3d ed. 1984) (cases

collected in note 3); Rev.Unif.R.Evid. 502(b) which extends the

attorney-client privilege to communications made for the purpose of

facilitating the rendition of legal services, cited in Id. at § 87,

n.10. See, also, Supreme Court Standard 503(a)(4) for similar

language. 2 J. Weinstein & M. Berger, Weinstein's Evidence, § 503

(1991).

 

10 McCormick on Evidence, § 88 n.3. See, also, 8 Wigmore,

Evidence, § 2304 (McNaughton ed. 1961).

 

11 See Restatement of The Law Governing Lawyers, Tentative

Draft No. 2, § 125, comments a-c, and Reporter's Notes (April 7,

1989) ("Tentative Draft").

 

12 See, also, McCormick on Evidence, § 91 at 219 and cases

collected therein.

10

not . . . accepted."9 As one court explained:

No person could ever safely consult an attorney for the

first time . . . if the privilege depended on the chance

of whether the attorney after hearing the statement of

facts decided to accept employment or decline it.

Denver Tramway Co. v. Owens, 20 Colo. 107, 36 P. 848 (1894).10 No

less may be said for persons who consult an attorney together as a

group with common interests seeking common representation.11 As

Judge Rubin explained in an earlier case:

Because the privilege protects only confidential

communications, the presence of a third person . . .

eliminates the intent for confidentiality on which the

privilege rests. The privilege is not, however, waived

if a privileged communication is shared with a third

person who has a common legal interest with respect to

the subject matter of the communication.

Hodges, Grant & Kaufman, supra (citations and footnotes omitted).12

As we previously have noted, the controlling law in this area

is "little more than a reinforcement of the Code of Professional
 

13 ABA Model Rules of Professional Conduct, Rule 1.16,

comment ¶ 1.

 

14 Dean Wigmore observes that "it would seem plain, by the

reason of the privilege, that, since the would-be client cannot

certainly predict the attorney's acceptance of the employment, the

former must be protected in his preliminary statements when making

the overtures, even if the overture is refused." 8 Wigmore,

Evidence, § 2304 (McNaughton ed. 1961). See, also, Tentative

Draft, supra, note 12.

11

Responsibility, Ethical Considerations, and Disciplinary Rules,

promulgated by the American Bar Association and adopted by the

[local jurisdictions]." Wilson P. Abraham Constr. Corp. v. Armco

Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977). The Model Rules of

Professional Conduct, which replaced the earlier Code of

Professional Responsibility, require an attorney to evaluate the

relevant facts, circumstances, and parties to determine the

appropriateness and propriety of assent to representation. "A

lawyer should not accept representation in a matter unless it can

be performed . . . without improper conflict of interest."13 Of

critical importance to a meaningful pre-representation interview is

the availability of the attorney-client privilege from the initial

salutation and greeting on. The existence of the privilege is an

essential ingredient to a full and free exchange of information

needed by the attorney for an intelligent assessment of the

representation invitation.14 The early declining of representation

is in the mutual best interests of both the attorney and the

prospective client. For the attorney there is the obvious savings

of time and the avoidance of possible future conflicts. For the
 

15 Tex. Gov. Code Ann., Title 2, Subtitle G -- Appendix A.

State Bar Rules, Art. 10, § 9, Rules 1.01-8.05 (Vernon 1992 Supp.).

The Texas Rules are substantially similar to the Model Rules which

12

prospective client the threshold declining of potentially

problematic representation permits the timely seeking of other

counsel, thus minimizing the possible losses and difficulties

experienced if the attorney must later withdraw from an

improvidently undertaken representation.

It necessarily follows that when more than one person seeks

consultation with an attorney on a matter of common interest, the

parties and the attorney may reasonably presume that the parties

are seeking representation of a common or joint matter. In United

States v. Melvin, 650 F.2d 641, 645 (5th Cir. Unit B 1981), we held

that a "communication is protected by the attorney-client privilege

. . . if it is intended to remain confidential and was made under

such circumstances that it was reasonably expected and understood

to be confidential." We therefore now hold that absent a contrary

expression of intention by one of the parties, the existence of a

matter of common interest must be presumed in the

pre-representation phase as presented in the case at bar. To hold

otherwise would present a conundrum whose only acceptable

resolution would be that a lawyer may never meet with more than one

potential client for fear that the attorney-client privilege would

be destroyed as to all. We reach this conclusion based on the

above cited authorities and analysis, and on the relevant attorney

conduct rules imposed upon Burton by Texas law and federal

rubrics.15
we discuss herein. Fed.R.App.P. 46 requires that an attorney be

admitted to practice before the highest court of a state and to be

of good moral character for admission to the Fifth Circuit Bar.

Local Rule 13.1 requires an attorney to be licensed to practice law

by the Supreme Court of Texas for eligibility for admission to the

Northern District bar.

13

Applying this holding and rationale to the instant case we

perforce must conclude that the district court was clearly

erroneous in its factual findings and was in error as to its

conclusions of law when it ruled that there was no attorney-client

privilege extant at the time of the joint meeting on December 13,

1991 and that one of the jointly interviewed prospective clients

could waive the privilege as to all participants. We hold that the

attorney-client privilege extended to all matters from the

scheduling of the joint conference until Burton informed Diane and

Mike Sanders that he could not represent them because of a

potential conflict. This holding is based on these facts: Prior

to the December 13 meeting Burton knew only that Feazell and the

Sanders couple sought to meet with him to discuss possible

representation on some matter. The three arrived at Burton's

office as a group, they met as a group, and Feazell recited a

factual scenario which involved all of them. Acting on the

reasonable presumption of a desire for representation in a matter

of common interest, Burton acquitted his professional and ethical

obligation to determine whether such representation was possible by

conducting separate individual interviews. Neither by word nor

deed did Feazell or either Sanders evidence any intention contrary

to a common interest representation or to the reasonable
14

expectation of confidentiality in either the group or separate

meetings.

Feazell and Burton were reasonable in believing in the

existence of common interests and possessed reasonable expectations

of confidentiality sufficient to support the attorney-client

privilege. Neither the fact that the joint representation

ultimately proved impracticable nor the subsequent waiver by either

or both Sanders can effect a retroactive recharacterization of the

attorney-client relationship as it existed during the

pre-representation meeting so as to defeat the protection the

privilege affords Feazell.

The order of the district court is REVERSED.