

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1776

           SHELDON WHITEHOUSE, IN HIS OFFICIAL CAPACITY
            AS UNITED STATES ATTORNEY FOR THE DISTRICT
                     OF RHODE ISLAND, ET AL.,
                     Plaintiffs - Appellees,

                                v.

                   UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF RHODE ISLAND, ET AL.,
                     Defendants - Appellants.

                                           

No. 94-1777

           SHELDON WHITEHOUSE, IN HIS OFFICIAL CAPACITY
            AS UNITED STATES ATTORNEY FOR THE DISTRICT
                     OF RHODE ISLAND, ET AL.,
                     Plaintiffs - Appellees,

                                v.

       SUPREME COURT OF RHODE ISLAND, ACTING CHIEF JUSTICE
    JOSEPH R. WEISBERGER, FLORENCE K. MURRAY, DONALD F. SHEA,
             VICTORIA LEDERBERG AND DAVID D. CURTAIN,
           AS ACTING CHIEF DISCIPLINARY COUNSEL, ET AL.
                     Defendants - Appellants.

                                           

No. 94-1889

           SHELDON WHITEHOUSE, IN HIS OFFICIAL CAPACITY
            AS UNITED STATES ATTORNEY FOR THE DISTRICT
                     OF RHODE ISLAND, ET AL.,
                     Plaintiffs - Appellants,

                                v.

                   UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF RHODE ISLAND, ET AL.,
                     Defendants - Appellees.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]                                                                

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Bownes, Senior Circuit Judge,                                                        

                     and Cyr, Circuit Judge.                                                     

                                           

     Warren C.  Nighswander, with whom  Sulloway &amp; Hollis  was on                                                                   
brief  for appellants  U.S. District  Court for  the District  of
Rhode Island, et al.
     John  F. Dolan,  with  whom Elizabeth  F. Sullivan  and Rice                                                                           
Dolan &amp; Kershaw  were on  brief for appellants  Supreme Court  of                         
Rhode Island, et al.
     Lauren E. Jones  and Jones Associates on  brief for American                                                    
Civil  Liberties   Union,   Rhode  Island   Affiliate,   National
Association  of  Criminal  Defense  Attorneys  and  Rhode  Island
Association of Criminal Defense Attorneys, amici curiae.
     S. Michael Levin, Mark W.  Freel, Melissa D. Famiglietti and                                                                       
Edwards &amp; Angell on  brief for the Rhode Island  Bar Association,                          
amicus curiae.
     Margaret E. Curran,  Assistant United States Attorney,  with                                 
whom  Craig N. Moore, Assistant  United States Attorney, and Sara                                                                           
Criscitelli,  U.S.  Department  of  Justice, were  on  brief  for                     
appellees.

                                           

                          April 20, 1995
                                           

                               -2-

          TORRUELLA, Chief Judge.  The main question for decision                    TORRUELLA, Chief Judge                                          

is whether a United  States District Court has the power to adopt

a local rule that requires federal prosecutors to obtain judicial

approval  before they serve a  subpoena on an  attorney to compel

evidence concerning a client.   The United States District  Court

for New Hampshire held  that the federal district court  in Rhode

Island  has the power to adopt such  a rule with respect to trial

subpoenas, but does not have  the power to do so with  respect to

grand jury subpoenas.  For the reasons stated herein, we conclude

that  the United States District  Court for Rhode  Island has the

power to adopt the  local rule in question, both with  respect to

trial and grand jury subpoenas.  We therefore affirm in part  and

reverse in part.

                            BACKGROUND                                      BACKGROUND

          To fully appreciate the important interests at stake in

this case, it  is necessary briefly to review some  of the recent

history leading to this lawsuit.

I.  Attorney-Subpoenas          I.  Attorney-Subpoenas                                

          Until recently, federal  prosecutors rarely  subpoenaed

attorneys to  compel testimony relating  to their clients.   This

practice  changed in the 1980s as  the federal government stepped

up its  fight against organized crime  and narcotics trafficking.

Most significantly, Congress passed  several new federal statutes

which, in the eyes of federal prosecutors, make attorneys fertile

ground for eliciting incriminating information about  the targets

                               -3-

of federal investigations and prosecutions.1

          Because service of a subpoena on an attorney implicates

the attorney-client relationship, and thus  raises ethical issues

for prosecutors,  the United States Department  of Justice issued

guidelines  for  federal  prosecutors  seeking  to  subpoena   an

attorney.   See Executive Office for the United States Attorneys,                         

Department  of  Justice, United  States  Attorneys'  Manual    9-

                                                  

1  See generally  Federal  Prosecutorial Authority in  a Changing                                                                           
Legal Environment:  More Attention  Required, H.R. Rep.  No. 986,                                                      
101st Cong., 2d Sess. 31 (1990) (chronicling the increased use of
attorney  subpoenas);  Roger C.  Cramton,  Lisa  K. Udell,  State                                                                           
Ethics Rules and Federal  Prosecutors: The Controversies over the                                                                           
Anti-Contact  and Subpoena Rules, 53 U. Pitt. L. Rev. 357, 362-69                                          
(1992) (same).

   New federal  laws with  implications  for the  attorney-client
relationship  include:  the   Racketeer  Influenced  and  Corrupt
Organizations Act,  18 U.S.C.     1961-68 (1988);  the Continuing
Criminal Enterprise Act,  21 U.S.C.    848 (1988) (evidence  that
legal   representation  was   provided  by   a  benefactor,   for
participation  in  a  criminal  enterprise,  relevant  to   prove
existence of criminal  enterprise); the Comprehensive  Forfeiture
Act  of  1984, Pub.  L. No.  98-473, 98  Stat. 2040  (codified as
amended at  18 U.S.C.    1961-68 (1988) and 21 U.S.C.    853, 881
(1988)) ("relation back" provision  allowing government to  seize
assets intended for, or paid  to, lawyer as legal fees);  the Tax
Reform Act of 1984, Pub. L. No. 98-369, 98 Stat. 494 (codified at
26  U.S.C.      60501  (1988))  (attorneys   required  to  report
identities of clients who  pay fees with cash payments  in excess
of  $10,000); and Money Laundering Control Act of 1986, 100 Stat.
3207-18  (codified  as amended  at 18  U.S.C.     1956-57 (1988))
(criminalizing  certain  monetary transactions  involving knowing
use of funds derived from an illicit source).

   Prosecutors generally subpoena attorneys under these new  laws
to  elicit evidence with  respect to fee  arrangements and client
identity.   See,  e.g., In  re Grand  Jury Subpoena  for Attorney                                                                           
Representing Criminal Defendant Reyes-Requena, 913 F.2d 1118 (5th                                                       
Cir. 1990) (benefactor  payments), cert. denied, 111  S. Ct. 1581                                                         
(1991);  In  re Grand  Jury Subpoenas  (Anderson), 906  F.2d 1485                                                           
(10th  Cir. 1990) (same); In  re Grand Jury  Subpoena Served Upon                                                                           
Doe  (Slotnick), 781 F.2d 238 (2d Cir. 1985) (same), cert. denied                                                                           
sub nom. Roe v. United States, 475 U.S. 1108 (1986).                                       

                               -4-

2.161(a)  (1985).2   In  addition, the  American Bar  Association

(the  "ABA")  adopted   an  amendment  to  its   Model  Rules  of

Professional  Conduct  creating  an ethical  prohibition  against

subpoenaing  a  lawyer/witness  without  a showing  of  need,  an

adversary hearing, and prior judicial approval.   See Model Rules                                                               

of Professional Conduct Rule 3.8(f), reprinted in 6 Laws. Man. on                                                           

Prof. Conduct (ABA/BNA) 25, 26 (Feb. 28, 1990).  The instances of

federal  prosecutors  subpoenaing  attorneys  to  compel evidence

regarding theirclients have, nevertheless, continuedto increase.3
                                                  

2   The  guidelines  require federal  prosecutors  to obtain  the
approval  of the  Assistant  Attorney General  in  charge of  the
Criminal Division prior to issuing a subpoena on counsel.  Before
approving  a  subpoena to  an  attorney,  the Assistant  Attorney
General  must  find that  the  information  is  necessary for  an
investigation or prosecution, unavailable from other sources, not
protected by privilege, that the  subpoena is narrowly drawn, and
that the need for the information outweighs any potential adverse
effects on the attorney-client relationship.  Id.                                                          

3  In  the first year that  the Department of  Justice Guidelines
were in  effect, July 18, 1985  to July 31, 1986,  the Department
approved 411 attorney subpoenas, an average of  33 per month.  In
the period from  March 1987 through October 1987,  the Department
rejected only ten requests  for attorney subpoenas, slightly more
than  one per  month.  Max  D. Stern &amp;  David Hoffman, Privileged                                                                           
Informers:  The  Attorney Subpoena  Problem  and  a Proposal  for                                                                           
Reform,  U. Pa. L. Rev.  1783, 1818 n.176  (1988) (citing Justice                
Department statistics).  In  addition, according to Department of
Justice statistics,  from October  1, 1987 through  September 30,
1988,  the  Department   received  363   requests  from   federal
prosecutors  to subpoena  523 attorneys,  of which  278 subpoenas
were for grand  jury proceedings and 85 for trial.   From October
1,  1988 through September 30,  1989, the Department received 410
requests from  federal prosecutors to subpoena  649 attorneys, of
which  321 subpoenas were for  grand jury proceedings  and 89 for
trial.  Exercise of Federal Prosecutorial Authority in a Changing                                                                           
Legal  Environment,  1990:   Hearing  Before   the  Subcomm.   on                                                                           
Government  Information, Justice  and Agriculture,  of  the House                                                                           
Comm. on Government Operations, 101st Cong.,  2d Sess. 408 (1990)                                        
(Appendix  2),  cited  in   Andrea  F.  McKenna,  A  Prosecutor's                                                                           
Reconsideration  of Rule 3.10, 53  U. Pitt. L.  Rev. 489, 491 n.5                                       
(1992).   See also  United States v.  Klubock, 832 F.2d  649, 658                                                       

                               -5-

II.  The Present Litigation          II.  The Present Litigation                                     

          In  January  1984,  the   Rhode  Island  Supreme  Court

established  the Committee  to  Study the  Rules of  Professional

Conduct   (the   "Rules   Committee")   to   study  and   provide

recommendations regarding  whether Rhode Island  should adopt the

ABA's Model Rules of Professional Conduct.  In February 1987, the

Rules Committee published a list of  proposed rules and solicited

comment from  all members  of the  Rhode Island  Bar.   The Rhode

Island Supreme  Court later  held a  public hearing  and received

additional  comments on the proposed rules.  On November 1, 1988,

the  Rhode Island  Supreme Court  adopted the  proposed Rules  of

Professional  Conduct as  an  amendment to  Rhode Island  Supreme

Court Rule 47.   Among the rules adopted  was Rule 3.8(f),  which

provides:

            Rule 3.8.   Special Responsibilities of a                      Rule 3.8.   Special Responsibilities of a
            Prosecutor.  The prosecutor in a criminal                      Prosecutor.
            case shall:

                              * * *

               (f)   not,   without  prior   judicial
            approval,  subpoena  a  lawyer   for  the
            purpose  of  compelling  the   lawyer  to
            provide evidence concerning a  person who
            is  or was represented by the lawyer when
            such evidence was obtained as a result of
            the attorney-client relationship.

On April 20,  1989, the  United States District  Court for  Rhode

Island  issued an order  incorporating the Rhode  Island Rules of
                                                  

(1st Cir.  1986) (noting that,  in the District  of Massachusetts
alone, from 50 to 100 attorney subpoenas per  year were served by
federal prosecutors  from 1983 to  1986), vacated,  832 F.2d  664                                                           
(1st Cir. 1987) (en banc by an equally divided court).

                               -6-

Professional Conduct, including Rule 3.8(f), into its local rules

(federal rule hereinafter referred to as "Local Rule 3.8(f)").4

          On August 2, 1991, the United States Attorney for Rhode

Island petitioned the Rhode  Island Supreme Court requesting that

the  court amend  the  state rule  to  waive its  application  to

federal  prosecutors  practicing  before Rhode  Island's  federal

courts.   The state court  invited briefs from  the United States

Attorney  and interested  members of  the  Rhode Island  Bar and,

after a hearing, denied the petition to amend.  The United States

Attorney then wrote to the United States District Court for Rhode

Island requesting  that it exempt federal  prosecutors from Local

Rule  3.8(f).  When the  district court denied  that request, the

United States  Attorney  petitioned  this court  for  a  writ  of

mandamus  requiring   the  district   court  to  exempt   federal

prosecutors from  the local  rule.   We  dismissed the  petition,

stating that "the proper  method for mounting a  facial challenge

to the validity of [Local] Rule 3.8(f) . . . is through an action

for declaratory  and/or injunctive  relief filed in  the district

                                                  

4    Several  states,  in   addition  to  Rhode  Island,  adopted
variations of the ABA's  Model Rule.  See, e.g.,  Mass. Sup. Jud.                                                         
Ct. Rule 3:08, PF 15 (adopted by United States District Court for
Massachusetts),  Tenn. Ct. C.P.R. &amp; DR 7-103(C); N.H. R.P.C. 4.5;
Va.  Sup.  Ct. R.  3A:12(a)  (adopted as  procedural  rather than
ethical rule);  and Pa. Rule  of Prof. Conduct  3:10.   New York,
Illinois and the District of Columbia considered and rejected the
rule.   See 6 Laws. Man.  on Prof. Conduct (ABA/BNA)  28, 29, 53,                     
55, 172, 175.  Pennsylvania's rule, which pertained only to grand
jury subpoenas, was  struck down  by the United  States Court  of
Appeals for the Third  Circuit as beyond the  court's rule-making
power.  Baylson  v. Disciplinary  Board of the  Supreme Court  of                                                                           
Pennsylvania, 975 F.2d 102  (3d Cir. 1992), cert. denied,  113 S.                                                                  
Ct. 1578 (1993).

                               -7-

court."

          The United  States Attorney, and two  of his assistants

(the "plaintiffs"), then commenced the instant action against the

United States  District Court  for Rhode  Island and its  sitting

judges (collectively, the "federal defendants"), the Rhode Island

Supreme Court  and its sitting justices, and Rhode Island's Chief

Disciplinary  Counsel  (collectively,  the  "state  defendants"),

seeking  declaratory   and  injunctive  relief  to   prevent  the

defendants from enforcing  the state or federal  versions of Rule

3.8(f) against federal  prosecutors practicing in Rhode  Island's

federal courts.5

          Upon cross  motions for summary  judgment, the district

court  struck down  Local Rule  3.8(f) as  applied to  grand jury

subpoenas but upheld the rule as applied to trial subpoenas.  The

district court 1) granted plaintiffs' motion for summary judgment

in  part, holding Local Rule  3.8(f) invalid as  applied to grand

jury subpoenas  because it  exceeds the federal  district court's

limited rule-making power; 2) held that the state version of Rule

3.8(f) cannot be applied to federal prosecutors at the grand jury

stage without violating the Supremacy Clause of the United States

Constitution; and  3) granted the federal  defendants' motion for

summary judgment in part, holding Local Rule 3.8(f) as applied to

trial  subpoenas   within   the  district   court's   rule-making

authority.  Almond v. U.S. Dist.  Court for Dist. of R.I., 852 F.                                                                   
                                                  

5  The case was originally brought in the United  States District
Court  for  Rhode Island,  and  subsequently  transferred to  the
United States District Court for New Hampshire.

                               -8-

Supp. 78 (D.N.H. 1994).  These cross-appeals followed.

                               -9-

                        STANDARD OF REVIEW                                  STANDARD OF REVIEW

          The material facts  are undisputed.  We  review de novo                                                                           

the district court's  rulings of  law made in  connection with  a

summary  judgment motion.  See  LeBlanc v. Great  Am. Ins. Co., 6                                                                        

F.3d 836, 841 (1st Cir.  1993), cert. denied,    U.S.   ,  114 S.                                                      

Ct. 1398, 128 L.Ed.2d 72 (1994).

                            DISCUSSION                                      DISCUSSION

          We addressed  the nearly identical issues  presented in

this case previously in  United States v. Klubock, 832  F.2d 649,                                                           

653-54  (1st Cir. 1986) ("Klubock I"), vacated, 832 F.2d 664 (1st                                                        

Cir.  1987) (en banc by an equally divided court) ("Klubock II").                                                                        

In Klubock I,  we held that the United  States District Court for                      

Massachusetts  has the power to  adopt an ethical  rule ("PF 15")

similar to  the Rhode Island  rule at  issue in this  case.   The

original panel  opinion in Klubock I was withdrawn, however, when                                              

we accepted a petition for rehearing  en banc.  Upon rehearing en                                                                           

banc, the full  court split three-to-three, therefore  affirming,              

by  an  equally  divided   court,  the  district  court  decision

upholding  the  ethical  rule  in  question.    United  States v.                                                                        

Klubock, 832 F.2d 664  (1st Cir. 1987), aff'g by  equally divided                                                                           

court, 639 F. Supp. 117 (D.Mass.  1986).6  Neither Klubock I  nor                                                                      

Klubock II  are controlling precedent, although  the reasoning of                    

both decisions  remains of  potential persuasive authority.   See                                                                           

Trans World Airlines  v. Hardison,  432 U.S. 63,  73 n.8  (1977).                                           
                                                  

6   For a discussion of how PF 15 has fared in Massachusetts, see                                                                           
generally   David  Hoffman   et   al.,  Attorney   Subpoenas  and                                                                           
Massachusetts Rule PF 15, 95 Mass. L. Rev. (Summer 1989).                                  

                               -10-

See also Charles A.  Wright, The Law  of Federal Courts 758  (4th                                                                 

ed. 1983).

          In  Klubock  I, we  recognized  the  ethical and  legal                                  

implications of prosecutors subpoenaing attorneys for the purpose

of compelling evidence concerning their  clients.  We noted  that

the serving  of a grand  jury subpoena on  an attorney  to compel

evidence  concerning  a client  may:   1) chill  the relationship

between lawyer  and client;  2) create an  immediate conflict  of

interest for the attorney/witness;  3) divert the attorney's time

and resources away from his client; 4) discourage attorneys  from

providing representation in controversial criminal cases;  and 5)

force  attorneys to withdraw as counsel  because of ethical rules

prohibiting an attorney  from testifying against his client.7  We

also  noted  the  potential  for  abusive  use of  the  attorney-

subpoena.  Klubock I,  832 F.2d at 653-54.  See also  In re Grand                                                                           

Jury Matters (Hodes and  Gordon), 593 F. Supp. 103,  106 (D.N.H.)                                          

(quashing subpoenas and  characterizing actions of U.S.  Attorney

in serving  subpoenas on  counsel as "without  doubt harassing"),

aff'd,   751  F.2d  13  (1st  Cir.  1984).    Other  courts  have               

acknowledged similar  concerns.  See,  e.g., In re  Special Grand                                                                           

Jury No. 81-1, 676 F.2d 1005,  1009 (4th Cir. 1982) (issuance  of                       

                                                  

7  See,  e.g., Model  Code of Professional  Responsibility DR  5-                       
101(B), DR 5-102 (1980); Model Rules of Professional Conduct Rule
3.7(a) (1987)  (prohibiting lawyer  from acting as  both advocate
and  witness whenever  "the lawyer  is likely  to be  a necessary
witness").  See also United States v. Diozzi,  807 F.2d 10, 12-13                                                      
(1st Cir.  1986) ("[A]ttorneys [can]not  serve the dual  roles of
defense  counsel  and  sworn  government witnesses  in  the  same
trial.").

                               -11-

subpoena  may cause  client  to distrust  attorney and  terminate

relationship), rev'd  on other  grounds, 697  F.2d 112  (4th Cir.                                                 

1982) (en banc).8

          The central question  on appeal in this case is whether

the United States District  Court for Rhode Island has  the power

to  adopt a  local rule  that requires  a federal  prosecutor, at

either the grand jury or trial stage, to obtain judicial approval

before  serving   a  subpoena  on  counsel   to  compel  evidence

concerning a client.  We conclude that the federal district court

has the power to adopt such a rule.

I.  The District Court's Rule-Making Authority          I.  The District Court's Rule-Making Authority                                                        

          The authority  of the United States  District Courts to

adopt or promulgate  rules emanates from  three sources.   First,

Congress has  vested  the Supreme  Court  with the  authority  to
                                                  

8   In  United States  v. Perry,  857 F.2d  1346, 1347  (9th Cir.                                         
1988), the  Ninth Circuit noted that  the government's increasing
use of grand jury subpoenas on a target's counsel

            has been almost universally criticized by
            courts, commentators and the  defense bar
            because  it  is  viewed   as  a  tool  of
            prosecutorial abuse and  as an  unethical
            tactical device US Attorneys employ to go
            on  a  "fishing  expedition"  with  legal
            counsel     without     first    pursuing
            alternative    avenues    to   get    the
            information.   Many  feel, and  with some
            justification, that  whatever benefit the
            government  derives  from  this  practice
            comes  at  the  direct  expense   of  the
            attorney-client relationship.   Among the
            perceived  costs,  for  example, are  the
            potential  loss of  a client's  choice of
            counsel should the latter be compelled to
            testify  at the  trial  and the  chilling
            effect upon  the  client's trust  in  his
            counsel's loyalty.

                               -12-

prescribe rules of practice and procedure for the federal courts.

28 U.S.C.    2072(a).   Pursuant to that  authority, the  Supreme

Court has  adopted Federal Rule  of Criminal Procedure  57 ("Rule

57"),  which provides that each  district court may  from time to

time  make or amend  rules governing  its practice,  provided the

rules  are   consistent  with  the  Federal   Rules  of  Criminal

Procedure.9   See  also  Fed. R.  Civ.  P. 83  (civil  analogue).                                 

Second, Congress  has vested federal district  and circuit courts

with  the  independent  authority  to prescribe  local  rules  of

practice  consistent with  Acts  of  Congress  and the  rules  of

practice  and procedure  promulgated by  the Supreme  Court.   28

U.S.C.     2071(a).10    Finally,  the  Supreme  Court  has  long
                                                  

9  Rule 57 of the Federal Rules of Criminal Procedure provides in
pertinent part:

              Each  district  court  by action  of  a
            majority  of the judges  thereof may from
            time  to  time, after  giving appropriate
            public  notice  and  an   opportunity  to
            comment, make and  amend rules  governing
            its practice not inconsistent  with these
            rules. . .  .  In all  cases not provided
            for  by  rule,  the  district  judges and
            magistrate  judges   may  regulate  their
            practice in any  manner not  inconsistent
            with these rules or those of the district
            in which they act.

10  28 U.S.C.   2071(a) states:

              The  Supreme  Court   and  all   courts
            established  by Act of  Congress may from
            time  to time  prescribe  rules  for  the                                                               
            conduct  of their  business.   Such rules                                                 
            shall be consistent with Acts of Congress
            and  rules  of  practice   and  procedure
            prescribed by the Supreme Court.

(emphasis added).

                               -13-

recognized that district courts have certain inherent rule-making

powers  arising from  the nature  of the  judicial process.   See                                                                           

Chambers v. NASCO, Inc., 501  U.S. 32, 43 (1991); Link v.  Wabash                                                                           

Railroad  Co., 370 U.S. 626  (1962); United States  v. Hudson, 11                                                                       

U.S.  (7 Cranch)  32, 34,  3 L.Ed.  259 (1812)  ("Certain implied

powers  must necessarily result to our Courts of justice from the

nature of their institution.").

          Consistent with these principles, the Supreme Court has

upheld the authority of district courts to promulgate local rules

unless 1) the rule conflicts with an Act of Congress; 2) the rule

conflicts with  the Federal Rules  of Criminal Procedure;  3) the

rule  is  constitutionally  infirm;  or  4)  the  subject  matter

governed by  the rule  is not  within the  power of the  district

court to  regulate.   See  Frazier v.  Heebe, 482  U.S. 641,  654                                                      

(1986) (Rehnquist, C.J., dissenting)  (citing Colgrove v. Battin,                                                                          

413  U.S. 149, 159-60, 162-64  (1973); Miner v.  Atlass, 363 U.S.                                                                 

641, 651-52  (1960);  Story  v.  Livingston,  13  Pet.  359,  368                                                     

(1839)).   In addition, the Supreme Court has struck down a local

rule  which it deemed "unnecessary  and irrational."   Id. at 646                                                                   

(majority   opinion).     It   follows  that   Local  Rules   are

presumptively  valid  unless  they  contravene one  of  the  five

principles mentioned above.

          Plaintiffs argue that Local  Rule 3.8(f) is invalid, as

applied to grand jury  subpoenas, because it regulates a  subject

matter which is beyond the rule-making  authority of the district

court.  In addition, plaintiffs contend that the Rule is invalid,

                               -14-

both as applied  to grand  jury and trial  subpoenas, because  it

conflicts  with Rules 17 and 57 of  the Federal Rules of Criminal

Procedure.   We  begin  by addressing  Local  Rule 3.8(f)  as  it

applies to grand jury subpoenas.

          Other  than  our two  opinions  in  Klubock, the  Third                                                               

Circuit  is the only federal  appeals court to  address whether a

federal district court  has the  power to adopt  a local  ethical

rule providing  for pre-service, judicial screening  of attorney-

subpoenas.  In Baylson v. Disciplinary Board of the Supreme Court                                                                           

of Pennsylvania, 975 F.2d  102 (3d Cir. 1992), cert.  denied, 113                                                                      

S. Ct. 1578  (1993), the Third Circuit  struck down a local  rule

similar to the one in this case on the grounds that it conflicted

with  both  Rules 17  and 57  of  the Federal  Rules  of Criminal

Procedure.  The court  did not address the question,  however, of

whether the  local rule  regulates a  subject  matter beyond  the

district court's rule-making authority.   It is upon  this latter

ground that the  district court  in this case  struck down  Local

Rule 3.8(f)  as applied to grand jury subpoenas.  We address this

issue first.  

II.  Power of District Court to Regulate Grand Jury Subpoenas          II.  Power of District Court to Regulate Grand Jury Subpoenas                                                                       

          A  federal court  has  the "inherent  power  . .  .  to

control  admission to  its bar  and to  discipline  attorneys who

appear  before it."   Chambers, 501 U.S.  at 43 (citing  Ex parte                                                                           

Burr, 9 Wheat. 529,  531 (1824)).  See also  Culebras Enterprises                                                                           

Corp. v. Rivera-R os, 846 F.2d  94, 97 (1st Cir. 1988) ("[i]t  is                              

well settled in this circuit that the district court has the duty

                               -15-

and  responsibility to  supervise  the conduct  of attorneys  who

appear before it") (citations  omitted); United States v. Claros,                                                                          

17 F.3d 1041, 1046-47  (7th Cir. 1994); Eash v.  Riggins Trucking                                                                           

Inc., 757  F.2d 557, 569 (3d  Cir. 1985).  The  Supreme Court has              

implied that  the  power to  regulate  the conduct  of  attorneys

derives  also from statutory authority.  See Frazier, 482 U.S. at                                                              

645 (district court has "discretion to adopt local rules that are

necessary  to carry  out the  conduct of  its business  [and this

authority] includes the regulation of admissions to its own bar")

(citing 28 U.S.C.    1654, 2071;  Fed. R. Civ. P. 83).  See  also                                                                           

Greer's Refuse  Serv., Inc.  v. Browning-Ferris Indus.,  843 F.2d                                                                

443,  446 (11th Cir. 1988) ("federal  courts have clear statutory

authority to promulgate rules governing the admission and conduct

of the attorneys who practice before them").

          Whether considered statutory or inherent in derivation,

we have little  difficulty concluding that  the greater power  of

disbarring attorneys for unethical behavior  necessarily includes

the  lesser power  of erecting  reasonable prophylactic  rules to

regulate  perceived  abuses  by  attorneys  appearing  before the

court.  Cf.  Chambers, 501 U.S.  at 45 (power to  dismiss lawsuit                               

for conduct  abusing judicial  process includes the  "less severe

sanction" of  imposing attorney's  fees).  The  question remains,

however, whether, considering the special role assigned the grand

jury in our justice system, Local Rule 3.8(f) regulates a subject

matter beyond the district court's rule-making authority. 

          A.  The Special Role of the Grand Jury                    A.  The Special Role of the Grand Jury                                                          

                               -16-

          The grand  jury occupies a unique place  in our justice

system.   It is  not assigned by  the Constitution to  any of the

three branches of government, and therefore acts independently of

each.   The Supreme Court  has explained: "[T]he  whole theory of

the [grand  jury's] function is that  it belongs to no  branch of

the institutional  government, serving  as a  kind  of buffer  or

referee between the Government and the people."  United States v.                                                                        

Williams,     U.S.   , 112 S.  Ct. 1735, 1742 (1992).   The grand                  

jury's "specialness" is manifested in five ways pertinent to this

case: 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; and 5)

its  general freedom from procedural detours and delays.  See id.                                                                          

(citations omitted);  United States  v. R. Enterprises,  498 U.S.                                                                

292, 298-301 (1991) (citations omitted).  

          Plaintiffs    maintain    that   Local    Rule   3.8(f)

impermissibly interferes with  these five  special attributes  of

the  grand jury.  They contend that Local Rule 3.8(f), therefore,

regulates  a subject  matter  beyond the  district court's  rule-

making authority  because it  "directly  contravenes the  central

principles  underlying the  essential  role and  function of  the

grand jury in the federal criminal justice system."  The district

court  agreed, holding  that "the  district court  cannot enforce

Local Rule 3.8(f) because  it assumes a power that the court does

not  have  --  the  power  to fundamentally  alter  the  historic

relationship between the grand  jury and its constituting court."

                               -17-

Almond, 852 F. Supp. at 86 (citing Williams, 112 S. Ct. at 1744).                                                     

          We disagree with the  district court for three reasons.

First, Local Rule  3.8(f) is  a prophylactic rule  aimed at,  and

principally affecting, prosecutors, not the grand jury.  As such,                                            

the Rule  regulates the conduct of attorneys appearing before the

court  -- a  power well within  the limits of  a federal district

court's rule-making authority --  and not the grand jury  per se.                                                                          

Second, we  think the  district court's  reliance on  Williams is                                                                        

misplaced.   Finally, any incidental  effect the Rule  has on the

grand jury is minimal, and  outweighed by the important interests

served by the rule.    

          B.  Effect of Local Rule on Grand Jury Functions                    B.  Effect of Local Rule on Grand Jury Functions                                                                    

          Local  Rule 3.8(f)  does  not impede  the grand  jury's

independence because it does  not affect subpoenas sought by  the

grand  jury acting independently.  The plain language of the Rule

demonstrates that it  applies to "[t]he prosecutor in  a criminal

case."   As we pointed out  in Klubock I,  concerning a virtually                                                  

identical ethical rule:

            PF 15 is not  aimed at grand jury action.                                                       
            It   deals   solely  with   prosecutorial
            conduct in the prosecutor's capacity as a
            member  of the bar.  If, in fact, a grand
            jury   acting    independently   of   any
            prosecutorial influence issues a subpoena
            against    an    attorney/witness,    the
            attorney/witness must honor  it, or  move
            to quash  the subpoena in  an appropriate
            manner.   Such  independent action  by  a
            grand jury  has  no relevance  to  PF  15
            because  none  of  the  ethical  concerns
            previously mentioned are implicated.

                               -18-

Klubock I, 832 F.2d at 658.  The distinction is critical because,                   

although the potential damage to the attorney-client relationship

exists  regardless of  who seeks  the subpoena,  the attorney-to-

attorney ethical concerns  that the Rule was designed to mitigate                          

are  not implicated  when the  grand jury,  acting independently,

seeks to subpoena  counsel.11   The Rule, as  written, acts  only

as a prophylactic  aimed at perceived  deleterious action by  one

litigating attorney against opposing counsel.           

          Nor  does  the  Rule  affect  the  grand  jury's  broad

investigative  powers  -- often  described  as  the grand  jury's

"right  to every man's evidence."   Branzburg v.  Hayes, 408 U.S.                                                                 

665, 688 (1972).  First and foremost, the Rule makes no change in

substantive law.   It merely authorizes district courts to reject

a prosecutor's attorney-subpoena application for  the traditional

reasons justifying the  quashing of  a subpoena --  that is,  the

subpoena  request  would  be denied  if  the  evidence sought  is

protected  by   a   constitutional,  common-law,   or   statutory

privilege,  or, the  court  determines that  compliance with  the

subpoena  would  be  "unreasonable   or  oppressive."    See  id.                                                                          

(citations  omitted); In re Grand Jury Matters, 751 F.2d at 17-18                                                        

                                                  

11   We  have noted  that,  although they  are  issued under  the
district court's name and for the grand jury, "[t]hese  subpoenas
are 'in  fact almost universally instrumentalities  of the United
States  Attorney's  office  or   some  other  department  of  the
executive  branch.'"  In  re Grand Jury  Matters, 751  F.2d at 16                                                          
(quoting  In re Grand Jury Proceedings  (Schofield), 486 F.2d 85,                                                             
90 (3d Cir. 1973)).  See also In re Grand Jury Subpoena: Subpoena                                                                           
Duces Tecum, 829 F.2d 1291, 1296-97 (4th Cir. 1987).                     

                               -19-

(Fed. R.  Crim. P.  17(c)).12  Local  Rule 3.8(f)  does not  keep

any  evidence  from  reaching  the grand  jury  which  would  not

potentially  have been kept from  it anyway.   Therefore, it does

not disturb the grand jury's broad investigative powers.13

          In effect, Local Rule  3.8(f) merely changes the timing

with respect to motions to quash in recognition of  the fact that

service itself of an attorney-subpoena seeking to compel evidence

concerning a client may cause irreparable damage to the attorney-

client  relationship.   See  Klubock I,  832  F.2d at  653  ("The                                                

serving of  a subpoena under such  circumstances will immediately

drive  a  chilling wedge  between  the  attorney/witness and  his

client.").   From  the  moment that  the  subpoena is  served  on

counsel,  until the issue of its validity is resolved, the client

resides  in a state  of suspended animation,  not knowing whether

his  attorney will testify against him and perhaps be required to

withdraw his  representation.   The uncertainty is  heightened by
                                                  

12   To  the extent that  the Comment  to Local  Rule 3.8(f), see
Appendix A,  suggests a  broader basis  for rejecting  a subpoena
application, we  point out that the  Comment cannot substantively
change  the text of the Rule.   Indeed, the Rhode Island Rules of
Professional  Conduct  provide  that  the "Comments  do  not  add
obligations to the  Rules but provide guidance  for practicing in
compliance with the Rules."  The Rhode Island Supreme Court Rules
also provide that "the  Comments are intended for interpretation,
but  the text  of  each Rule  is  authoritative."   Rhode  Island
Supreme Court Rule  47.  Moreover, federal district courts cannot
effect substantive  changes in the law  through local rulemaking.
We presume  that  district court  judges  will apply  Local  Rule
3.8(f)  consistently  with  both  its text  and  applicable  law.
Plaintiffs' speculative arguments with respect  to how particular
judges might  apply the Comment to  the Rule are, at  this point,
irrelevant.

13   For similar reasons,  Local Rule 3.8(f)  does not affect the
presumed validity of grand jury subpoenas.

                               -20-

the fact  that the  common  law of  attorney-client privilege  is

still evolving to address the  concerns implicated by new federal

laws  relating to client identity and  fee arrangements.  Compare                                                                           

United States v.  Gertner, 1995  WL 32020 (D.Mass.)  (in case  of                                   

first impression in this  circuit, holding that identification of

attorney's client, as required by 26 U.S.C.   6050I, is protected

from disclosure  by attorney-client privilege) with United States                                                                           

v. Goldberger  &amp; Dubin, P.C.,  935 F.2d  501, 505 (2d  Cir. 1991)                                      

(holding that the information is not protected by attorney-client

privilege).   In addition, service  of a subpoena  opens a second

front which counsel must defend with her time and resources, thus

diverting  both from  the  client.   That  the defense  counsel's

adversary  can  bring about  these  consequences raises  manifest                   

ethical  concerns,  properly  addressed  by a  rule  directed  at

regulating the attorney-to-attorney relationship.

          We  also reject  plaintiffs' argument  that Local  Rule

3.8(f)  contravenes  the   historic  "secrecy"   of  grand   jury

investigations.   Nothing in the  text of the  Rule prohibits the

filing of attorney-subpoena applications  to the court under seal

or in  camera.  Nor does the Rule prohibit the court from holding                       

an ex parte, in camera hearing.  District courts routinely use in                                                                           

camera  procedures to maintain grand  jury secrecy in the context                

of  post-service motions to quash.  See R. Enterprises, Inc., 498                                                                      

U.S. at 302.  Moreover, because the grounds upon which a district

court  may reject an  attorney-subpoena application  mirror those

for quashing  a  subpoena, the  prosecutor  will be  required  to

                               -21-

divulge no  more information  with  respect to  the grand  jury's

investigation than it would in responding to a motion to quash.14

          Finally, there  is nothing in  the text  of Local  Rule

3.8(f)  which would subject the  grand jury to unusual procedural

delays or detours.   As  noted, the Rule  only affects  subpoenas

sought  by prosecutors for use at  the grand jury proceeding.  It

is  not applicable  to subpoenas  sought by  a grand  jury acting

independently.  It  therefore will not usually have  any delaying

effect  on  the grand  jury's  investigation.   Furthermore,  any

procedural  delay or detour which does result would be minimal --

presumably no greater than that caused by a traditional motion to

quash a subpoena issued  at the grand  jury stage.  As  explained

below, we think any  minimal delay is outweighed by  the benefits

of the Rule.

          We made many of these points in Klubock I.  In striking                                                             

down the ethical rule  in this case, however, the  district court

reasoned that  the Supreme  Court's recent decision  in Williams,                                                                          

112 S. Ct. 1735,  negates any persuasive authority Klubock  I has                                                                       

with respect to grand jury subpoenas.

          C.  United States v. Williams                    C.  United States v. Williams                                                 
                                                  

14  Plaintiffs argue  that the secrecy of grand  jury proceedings
will be  compromised because  the Comment  to Rule 3.8(f)  states
that  judicial approval  should  be granted  or  denied after  an
"adversarial hearing."  As we have noted, the Comment to the Rule
is merely a non-binding  guideline.  Supra n.12.   District court                                                    
judges will determine, based on their experience and professional
judgment, the best way to comply with the Rule and maintain grand
jury secrecy.   In some  cases an in  camera adversarial  hearing                                                      
might  be  appropriate and  in  others it  might  not.   This, of
course, is the  kind of decision district court  judges routinely
make in the exercise of their discretion.

                               -22-

          Williams held  that a district court does  not have the                            

power  to  dismiss  an  otherwise valid  indictment  because  the

government failed to disclose substantial exculpatory evidence to

the grand jury.   In doing so, the Court  announced the following

principles, upon which the district court relied in striking down

Local Rule 3.8(f) as applied to grand jury subpoenas.

               These  authorities  suggest  that  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.   It                                                               
            certainly   would  not   permit  judicial                                                               
            reshaping of the grand  jury institution,                                                               
            substantially  altering  the  traditional                                                               
            relationships between the prosecutor, the                                                               
            constituting  court,  and the  grand jury                                                               
            itself.                            

Williams,  112  S.  Ct.  at 1744  (citations  omitted)  (emphasis                  

added).  Citing  the history of  the grand jury, both  in England

and  the United  States, the  Williams Court  explained that  the                                                

grand jury sits  in order to asses  whether there is an  adequate

basis for bringing  a criminal charge,  rather than to  determine

guilt  or innocence.    Therefore, "requiring  the prosecutor  to

present  exculpatory evidence  as  well  as inculpatory  evidence

would  alter the  grand jury's  historical role,  transforming it                                                                           

from an  accusatory  to an  adjudicatory  body."   Id.  (emphasis                                                               

added).

          It can  hardly be  said  that Local  Rule 3.8(f)  would

"alter  the grand  jury's historic  role" in  such a  fundamental

fashion.  It certainly does not transform the grand jury  from an

accusatory to an  adjudicatory body.   Indeed, it  has no  effect

                               -23-

whatsoever  on the  grand jury's  accusatory role.   Nor  does it

alter  the traditional  relationships between  prosecutor, court,

and grand jury.  As we have noted, regulation of attorney conduct

is a  traditional role  for  the court  -- one  for  which it  is

particularly well positioned and suited, and one  which has never

been  considered within the purview of the grand jury.  Moreover,

the  Rule has no effect  on the evidence  ultimately presented by

the  government.  It merely allows the court to determine, before

an attorney-subpoena is  served, and the damage  to the attorney-

client  relationship  caused, whether  grounds exist  which would

render the subpoena  subject to an  order to  quash.  Unlike  the

situation  in Williams,  Local  Rule 3.8(f)  does not  affect the                                

traditional  equation upon  which the  grand jury  deliberates to

assess whether there is an  adequate basis for bringing  criminal

charges.

          We  think Williams  is clearly  distinguishable on  the                                      

above grounds alone.  We note in addition, however, that Williams                                                                           

involved  the use  of a  federal court's  "supervisory power"  to

dismiss  an  indictment,  while  this case  involves  a  district                 

court's  power  merely  to  regulate  the  conduct  of  attorneys

appearing before it.  The supervisory power derives from the need

for courts  "to implement  a remedy  for violation of  recognized

rights,  to  preserve  judicial  integrity  by  ensuring  that  a

conviction rests on appropriate considerations validly before the

jury,  and .  . . to  deter illegal  conduct."   United States v.                                                                        

Hastings, 461  U.S.  499, 505  (1982)  (citations omitted).    In                  

                               -24-

contrast,  the  power  of a  court  to  regulate  the conduct  of

attorneys appearing before it  derives not from a need  to remedy

or  deter   violations  of  defendants'  rights,   but  from  the

professional  relationship  between   the  court  and   attorneys

appearing before it.  See Theard  v. United States, 354 U.S. 278,                                                            

281  (1957) ("The  court's control  over a  lawyer's professional

life  derives  from his  relation  to the  responsibilities  of a

court."); Goldfarb  v.  Virginia State  Bar,  421 U.S.  773,  792                                                     

(1975) ("The  interests of  the States  in regulating  lawyers is

especially  great  since lawyers  are  essential  to the  primary

governmental   function  of   administering  justice,   and  have

historically been 'officers of the courts.'").  Thus,  the source

and purpose of the two powers distinguishes them.

          The  nature  and extent  of  the  power exercised  also

differ.    When a  federal court  uses  its supervisory  power to

dismiss an indictment it directly encroaches upon the fundamental

role  of the grand jury.   That power  is appropriately reserved,

therefore, for extremely limited circumstances.  See Bank of Nova                                                                           

Scotia v. U.S., 487 U.S. 250,  263 (1988) ("District Court had no                        

authority to dismiss the indictment on the basis of prosecutorial

misconduct absent  a finding that petitioners  were prejudiced by

such misconduct").  In contrast, the power of a court to regulate

the  conduct of  attorneys appearing  before it  is traditionally

invoked  only to impose a sanction, monetary or otherwise, on the

offending party, or to  recommend disciplinary proceedings.  See,                                                                          

e.g.,  United States v. Claros,  17 F.3d 1041,  1046-47 (7th Cir.                                        

                               -25-

1994); Harlan v. Lewis,  982 F.2d 1255, 1259-60 (8th  Cir. 1993);                                

Zambrano  v. City  of Tustin,  885 F.2d  1473, 1477-80  (9th Cir.                                      

1989).   It stands  to reason that the  more severe the sanction,

the more extensive the  source of power needed to  impose it, and

the  more closely that power  must be circumscribed.   It follows

that the converse is also true.  See Chambers, 501 U.S. at 45.                                                       

          For  these reasons,  we conclude  that Williams  is not                                                                   

dispositive of the distinct issues in this case.  Nor do we think

                               -26-

that  it vitiates  the persuasive authority  of our  reasoning in

Klubock I.                   

          D.  The Benefits of Local Rule 3.8(f)                    D.  The Benefits of Local Rule 3.8(f)                                                         

          In  many ways, the  attorney-client relationship is the

heart of our adversarial system of justice.  This is particularly

true  in  criminal  cases.   See  generally  Monroe  H. Freedman,                                                     

Understanding  Lawyers' Ethics  16 ("the  lawyer is  the client's                                        

'champion  against  a  hostile  world' --  the  client's  zealous

advocate  against   the  government   itself").     Clients  rely

extensively   on   their   attorneys'   judgment,   advice,   and

professional  competence.      Moreover,  as   legal  rules   and

obligations  become  more complex,  clients  are  forced to  rely

increasingly on their attorneys, thus elevating the importance of

the attorney-client relationship.

          The relationship  between attorney and client  is often

an  ongoing  one, built  upon  years of  professional  and social

interaction.   On  other  occasions it  arises  out of  a  single

incident.   Sometimes  the  client and  attorney  have never  met

before.  Although the dynamics of these relationships differ, the

fundamental responsibilities of attorney  to client are the same.

Attorneys  must   diligently  and  competently   represent  their

clients'  interests, keep  their  clients'  confidences, and  not

place  themselves in  situations where  their interests  conflict

with   those   of   their    clients.15      To   fulfill   their
                                                  

15   See, e.g., Model Rules of  Professional Conduct Rule 1.1 ("A                        
lawyer  shall provide competent  representation[, which] requires
the  legal  knowledge,  skill,   thoroughness    and  preparation

                               -27-

responsibilities,  attorneys need information from their clients.

It  is necessary to the very foundation of our adversarial system

of  justice  that  clients  feel  secure  in  divulging to  their

attorneys  the facts  in their  possession, including  those that

clients think might be incriminating.  See  generally 1 McCormack                                                                           

on  Evidence    87,  at 316-17  (4th  ed. 1992)  (describing  the                      

importance of attorney loyalty  to the client); Stern  &amp; Hoffman,

supra,  at 1826-27  (stressing  the need  for open  communication               

between attorney and client).

          A body of substantive law and ethical rules has evolved

over  the years  with the  purpose of  creating an  atmosphere in

which  free and  unfettered  communication between  attorney  and

client is, to the  greatest extent, encouraged.  See  supra n.15.                                                                     

We are concerned with the systemic nature  of the attorney-client

relationship because of the dynamic inherent in that relationship

--  the client generally knows the facts and the lawyer generally

knows  the law.  While the  law cannot "legislate" a trusting and

open attorney-client  relationship, it  can encourage it,  or, at

least, seek  to mitigate those situations  which might discourage

                                                  

reasonably  necessary  for  the representation.");  Rule  1.3 ("A
lawyer  shall act  with  reasonable diligence  and promptness  in
representing a  client."); Rule  1.4(a) (duty  to "keep a  client
reasonably  informed about  the status  of a  matter"); Rule  1.6
(general  rule  of  confidentiality);   Rule  1.7  (general  rule
regarding conflicts  of interest);  Rule 1.8(b) ("A  lawyer shall
not use  confidences to the client's  disadvantage"); Rule 1.9(b)
(same for former  client).   Many of these  ethical rules  codify
similar requirements contained in  contract and agency law.   See                                                                           
Stephen Gillers,  What  We  Talked  About When  We  Talked  About                                                                           
Ethics: A Critical View of the Model Rules, 46 Ohio St. L.J. 243,                                                    
247-48 (1985) (collecting cases). 

                               -28-

it.

          This was precisely the rationale underlying the Supreme

Court's  decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947),                                                

in which the Court held that attorney work product is privileged.

The   Court  emphasized   the   need  for   the   attorney-client

relationship to  be "free from unnecessary  intrusion by opposing

parties and  their counsel"  and noted that  introducing attorney

work  product  into  evidence   would  lead  to  "[i]nefficiency,

unfairness and  sharp practices  .  . .  in the  giving of  legal

advice and  in the  preparation of cases  for trial."   The Court

concluded:  "The   effect  on  the  legal   profession  would  be

demoralizing.  And the  interests of the causes of  justice would

be poorly served."  Id.                                

          Local  Rule  3.8(f)  effectively  enables  the district

court  judge to  resolve  issues with  respect  to the  attorney-

subpoena  prior to  service, in  a manner  similar to  that in  a

motion  to  quash  hearing,  therefore avoiding,  in  appropriate

cases,   the   detrimental   effects   to   the   attorney-client

relationship caused  by service of a  prosecutorial subpoena upon

the attorney.   We think  that Local Rule  3.8(f) serves  similar

interests   as   those  noted   in   Hickman,16   and  that   its                                                      

prophylactic  nature  is  consistent  with  the  Supreme  Court's

recognition that the district  court's supervision over the grand

                                                  

16  In contrast to Hickman, of course, the Rule in this case does                                    
not  create new  substantive  law with  respect to  the attorney-
client privilege.   Rather, it merely seeks to  avoid unnecessary
harm to the attorney-client relationship.

                               -29-

jury's subpoena power may be "properly exercised . . . to prevent                                                                           

the wrong before it occurs."  United States v. Calandra, 414 U.S.                                                                 

338 (1974) (emphasis added).

          We  also think the district  court is in  a much better

position than this court to evaluate the need for an ethical rule

regulating the practice of  its officers, at both the  grand jury                                                  

and  trial  stages.17     As  Justice  Frankfurter  explained  in

upholding  the power of district courts to promulgate and enforce

rules concerning disbarment of attorneys:

            [T]he state judicatures  and the  federal
            judiciary,  have autonomous  control over
            the conduct of their officers, among whom
            . . . lawyers  are included.  The court's                                                               
            control over a lawyer's professional life                                                               
            derives   from   his   relation  to   the                                                               
            responsibilities   of  a  court.  .  .  .                                                     
            'Membership  in the  bar  is a  privilege
            burdened with conditions.   The appellant
            was received into that ancient fellowship
            for something more than private gain.  He
            became an officer of the court, and, like
            the court itself, an instrument or agency
            to advance the ends of justice.'

Theard,  354 U.S. at 281 (emphasis added) (quoting People ex rel.                                                                           

Karlin  v. Cilkin, 162 N.E.  487, 489 (N.Y.  1928) (Cardozo, J.))                           

(other citations  omitted).  The  judges of the  federal district

court in Rhode Island  are in a position to  observe the subpoena

practices  of attorneys appearing before them.  Those judges with

more  than a few years on  the bench have witnessed the increased
                                                  

17   We  note that  the  parties are  "before the  court" once  a
subpoena is issued under the court's seal.  See Matter of Certain                                                                           
Complaints under  Investigation, 783  F.2d 1488, 1495  (11th Cir.                                         
1986)  (noting that when a  subpoena bearing the  court's seal is
issued by its  clerk, it  becomes "an instrument  of the  court's
process"), cert. denied, 477 U.S. 904 (1986).                                 

                               -30-

use  of the attorney subpoena  as an investigative  tool and have

been called upon to  rule on motions to quash.  Considering their

acknowledged  authority  to  regulate  the conduct  of  attorneys

appearing  before them,  and to  preserve judicial  integrity, we

think their determination that Local Rule 3.8(f) was necessary to

regulate the  increased use of  the attorney subpoena  by federal

prosecutors deserves considerable weight.18

          Based on the foregoing considerations, we conclude that

the  minimal effect  Local Rule  3.8(f) might  have on  the grand

                                                  

18  Plaintiffs argue that the Rule is unnecessary because Justice
Department   Guidelines  place   strict   controls   on   federal
prosecutors   seeking  to   subpoena   counsel  and,   therefore,
adequately protect the attorney-client relationship.  Supra.  The                                                                     
question  in this case, however,  is not whether  there are other
ways to  protect the  attorney-client privilege; the  question is
whether the  district court has the power to adopt this Rule.  We                                                                 
also note that the judges of the federal district court  in Rhode
Island  presumably did  not  take such  a  sanguine view  of  the
Justice  Department's ability  to police  its own.   If  so, they
would  not be  alone in  this view.   After  discovering that  no
disciplinary  action had been taken by  the Department of Justice
against ten prosecutors  found by federal courts to  have engaged
in misconduct,  for example,  a Congressional Committee  recently
observed:

            [R]epeated findings of no misconduct, and
            the Department's failure  to explain  its
            disagreements with findings of misconduct
            by  the  Courts raises  serious questions
            regarding  what the  Department considers
            "prosecutorial  misconduct  . .  . within
            the meaning  of either the Model  Code of                                                               
            Professional   Responsibility    or   the                                                   
            Standards of Conduct in the Department of
            Justice."

H.R.  Rep. No. 986,  101st Cong., 2d  Sess. 23 (1990).   See also                                                                           
U.S.  v.  Hastings,  461  U.S.  499,  522  (1983)  (Brennan,  J.,                            
concurring  in  part  and  dissenting in  part)  (describing  the
"futility  of  relying  on  Department  of  Justice  disciplinary
proceedings").

                               -31-

jury's  traditional functions  is  outweighed  by the  important,

systemic concerns addressed  by Local Rule 3.8(f).   We therefore

conclude that Local Rule 3.8(f) regulates a subject matter within

the district courts' rule-making  authority.  We turn now  to the

question  of whether the  Rule is  inconsistent with  the Federal

Rules of Criminal Procedure.

                               -32-

III.  Federal Rules of Criminal Procedure          III.  Federal Rules of Criminal Procedure                                                   

          In Baylson,  the Third Circuit struck  down a virtually                              

identical local rule ("Local  Rule 3:10") on the grounds  that it

was inconsistent with both  Rules 17 and 57 of  the Federal Rules

of Criminal Procedure and, therefore, beyond the district court's

rule-making authority.   The district court in this case rejected

the  Baylson court's  reasoning  and conclusion  with respect  to                      

Rules 17 and 57.  For much the same reasons, we do as well.

          A.  Rule 1719                    A.  Rule 17                               

          The Baylson court offered the following reasons for its                               

conclusion that  Local Rule  3:10 is  inconsistent with  Rule 17.

First, the court noted that neither Rule 17 nor any provision  in

the  federal rules  or an  Act of  Congress "allows  for judicial                                                             

intervention  before a subpoena  is served."   Second,  the court

stated that the local rule "impermissibly extends the ministerial

role granted the district courts in subpoena practice."  Finally,                      

while conceding  that  "there  may  not  be  a  literal  conflict

between"  the two  rules, the  court reasoned  that the  two were

inconsistent "because  nothing in Rule 17 grants  to the district

court what  Rule 3.10 purports to  by means of a  local rule: the

power to screen grand jury subpoenas  prior to service."  Id.  at                                                                      

108 (emphasis added in each quotation).

          We reject Baylson's reasoning  with respect to Rule 17.                                     

It simply does not  follow analytically or jurisprudentially that

a  local rule is "inconsistent" with a criminal rule of procedure
                                                  

19  The full text of Rule 17 is reprinted at Appendix B.

                               -33-

merely because neither the  federal rules nor an Act  of Congress

explicitly  grant district  courts  the power  to promulgate  the

specific  local rule.  As noted, district courts have the general

power to adopt local  rules pursuant to Federal Rule  of Criminal

Procedure 57, 28 U.S.C.   2071(a), and their inherent rule-making

authority.   It might be argued  that neither Rule 57,   2071(a),

nor the court's inherent  rule-making power provide the necessary

authority  for  a  district  court to  regulate  this  particular                   

subject  matter,  but  this  inquiry is  entirely  separate  from

whether  the ethical  rule  is inconsistent  with  Rule 17.    By                                                     

premising its consistency  analysis on whether a  federal rule or

statute provides the specific authority to adopt the  local rule,

Baylson turned the proper  inquiry on its head --  evaluating the                 

Rule  as  if  local  rules  are  presumptively   invalid.    This

presumption  is  wholly  unsupported.   See,  e.g.,  Colgrove  v.                                                                       

Battin, 413 U.S. 149 (1973); Link, 370 U.S. 626 (1962).20                                           
                                                  

20  The district court rejected the Baylson court's analysis with                                                     
respect to Rule 17 for similar reasons.

              By focusing on whether Rule 17 "allows"
            a  district  court  to intervene  in  the
            subpoena  process  prior to  service, the
            Third Circuit essentially held that local
            rules   cannot    authorize   pre-service
            judicial  review where  Rule 17  does not
            itself authorize this practice.  In other
            words,  the  court  held that  Rule  17's
            silence   with  respect   to  pre-service
            judicial  review   rendered  local  rules
            authorizing  this  practice  inconsistent
            with  the  federal  rule.   I  reject the
            interpretive   premise  because   it  too
            narrowly   circumscribes   the   district
            courts' rulemaking power.

                               -34-

          The proper method for  determining whether a local rule

is inconsistent with a  federal rule of procedure is  to inquire,

first,  whether the  two  rules are  textually inconsistent  and,

second, whether the  local rule subverts  the overall purpose  of

the federal rule.   See  Hawes v. Club  Ecuestre Comandante,  535                                                                     

F.2d 140, 144 (1st Cir. 1976).

          We agree with the district court that the two rules are

not textually inconsistent.   There is simply nothing in  Rule 17

which prohibits  pre-service involvement in the  subpoena process

by  the  district court  judge.21   Plaintiffs  do  not seriously

contest this  point but  argue, instead,  that Local  Rule 3.8(f)

contravenes the  "underlying policy of  Rule 17" to  maintain the

historic  limits on  the court's  involvement in  the  grand jury

subpoena process.  Plaintiffs  maintain that Rule 17 purposefully

confines   the  court's   role   in  the   subpoena  process   to

"administrative  functions, sanctioning  refusals to  comply with

subpoenas,   and  quashing  or   modifying  document  subpoenas."

Therefore, the argument  goes, Rule 17's failure  to address pre-

                                                  

Almond, 852 F. Supp. at 84.                

21  As the district court  noted, Local Rule 3.8(f) is  concerned
only with the service of subpoenas on attorneys, not the issuance                               
of  subpoenas.   This is  not merely  a difference  in semantics.
Local  Rule 3.8(f)  is a  prophylactic rule  designed to  address
certain perceived  ethical concerns implicated by  the increasing
practice of federal  prosecutors subpoenaing opposing  counsel to
compel  testimony  regarding  a  target client.    These  ethical
concerns  simply are not implicated by the issuance of a subpoena
because,  until  the attorney  is served  with the  subpoena, the
client  has no  reason to  distrust or  feel uncertain  about his
attorney's allegiance.  See  Klubock I, 832 F.2d 649  (noting the                                                
same with respect to PF 15).

                               -35-

service judicial  intervention in the subpoena  process indicates

an intention that there should be none.

          The  Supreme Court  has indicated  that silence  in the

federal rules should not be interpreted as a prohibition on local

rule-making authority.  In Colgrove, for example,  the Court held                                             

that a local rule  authorizing six-person juries for civil  cases

did  not conflict with former Federal Rule of Civil Procedure 48,

which provided that  "[t]the parties may stipulate that  the jury

shall  consist  of  any number  less  than  twelve."   The  Court

concluded that  the two rules were not  inconsistent because Rule

48 "'deals only with  a stipulation by "[t]he parties."   It does                                                               

not purport to prevent court rules which provide for civil juries                                            

of reduced size.'"   Colgrove, 413 U.S. at 164 (quoting Cooley v.                                                                        

Strickland  Transportation  Co.,  459  F.2d 779,  784  (5th  Cir.                                         

1972)).  See also United States  v. Spock, 416 F.2d 165, 180 (1st                                                   

Cir. 1969).22   The  mere fact  that Rule  17 sets  forth certain

ways  in which  the district  court is  involved in  the subpoena

process  does not, by  negative implication,  therefore establish

that  the  purpose  of  the  rule  is  to  circumscribe  judicial                            

intervention  in the  subpoena  process to  only those  functions

                                                  

22  Similarly, in Link, the Court held that the former version of                                
Federal Rule of  Criminal Procedure 41(b) --  which provided that
"a defendant may move for dismissal of an action" for failure  to
prosecute -- did not, by negative implication, prohibit the court
from dismissing  an action sua  sponte for failure  to prosecute.                                                
The Court reasoned that "[n]either the permissive language of the                                                           
Rule -- which merely authorizes a motion by  the defendant -- nor
its policy" indicate that the Rule was intended to "abrogate" the
inherent  power  of federal  courts  to  dismiss  sua sponte  for                                                                      
failure to prosecute.  Link, 370 U.S. at 630-32 (emphasis added).                                     

                               -36-

specified in the Rule.23

          Moreover, the  Supreme Court  has long  recognized that

rules regulating the conduct  of attorneys practicing before them

are  within  the  local  rule-making authority  of  the  district

courts. See, e.g.,  Theard, 354 U.S. at 281-83 (inherent power of                                    

district  courts  to  promulgate  and  enforce  rules  concerning

disbarment of attorneys).   Local Rule  3.8(f) is a  prophylactic

ethical rule regulating the conduct of attorneys appearing before

the court.   Therefore, as in Link, a strong indication of intent                                            

to abrogate is required.

          There is nothing in  the text of Rule 17 to  suggest it

was intended to abrogate the power of a federal court to regulate

the  conduct  of   attorneys  appearing  before  it.    Nor  have

plaintiffs  identified any  historical evidence  with  respect to

Rule 17 indicating that  it was intended to abrogate  this power.

The Supreme Court's  decision in  Miner v. Atlass,  363 U.S.  641                                                           

(1960),  is instructive in this regard.   Miner held that a local                                                         

rule authorizing discovery-deposition practice in admiralty cases

was beyond the rule-making authority of the admiralty court.  The

Court has since explained that the decision in Miner was based on                                                              

the fact that the Supreme Court itself had previously omitted the

precise discovery procedure from among the Civil Rules adopted as

part of the Admiralty  Rules.  See  Colgrove, 413 U.S. at  163-64                                                      

                                                  

23  As the district  court noted, although there is no  procedure
in Rule 17 for  quashing a testimonial subpoena, courts  have, on
their own authority, extended the Rule's procedures regarding the
quashing of document subpoenas to cover testimonial subpoenas.

                               -37-

n.23.   The Court explained: "Miner held that this omission 'must                                             

be  taken  as an  advertent  declination  of the  opportunity  to

institute the discovery-deposition procedure of  Civil Rule 26(a)

throughout  courts of admiralty.'"   Id. (quoting Miner, 363 U.S.                                                                 

at 647).   The court therefore  held that the local  rule was not

consistent  with the General Admiralty Rules.  Miner, 363 U.S. at                                                              

647.  See also Link, 370 U.S. at 631-32 (stating that "[i]t would                             

require  a much  clearer expression  of  purpose than  Rule 41(b)

provides  for us  to  assume it  was  intended to  abrogate"  the

inherent power of  a court to dismiss  sua sponte for  failure to                                                           

prosecute).

          Although there is a  history of grand jury independence

from its constituting court,  see supra, plaintiffs have directed                                                 

us to  no historical evidence -- on a par with that, for example,

in  Miner -- relating to  the promulgation of  Rule 17 to suggest                   

that  it  was intended  to  codify  this  policy.   The  lack  of

historical evidence is  particularly significant because Rule  17

was adopted  in 1944,  well prior  to the line  of Supreme  Court

cases  setting the  parameters of grand  jury independence.   See                                                                           

generally  United States  v. Williams,  112 S.  Ct. 1735  (1992);                                               

United  States v. Dionisio, 410  U.S. 1 (1973);  United States v.                                                                        

Calandra, 414 U.S. 338  (1974); Branzburg v. Hayes, 408  U.S. 665                                                            

(1972).   Furthermore,  in most  instances,  there is  simply  no

reason for  judicial involvement in the subpoena process prior to

service.  Thus, the Rule's silence with respect to the issue does

not  necessarily imply anything other than silence.  We therefore

                               -38-

conclude that Local Rule 3.8(f) is not inconsistent with the text

or purpose of Rule 17.24

          B.  Rule 57                    B.  Rule 57                               

          Baylson  also held, relying on  the Comment to Rule 57,                           

that  the local  rule  is invalid  because  it "goes  beyond  the

'matters  of detail'  contemplated by  [Rule] 57."   Baylson, 975                                                                      

F.2d  at 108.   We  reject the  Baylson  court's reliance  on the                                                 

Comment  to the Rule,  rather than the  text.25  It  is true that

in ascertaining  the meaning of  the federal rules  of procedure,

"the construction given to them by the [Advisory] Committee is of

weight."   Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444-                                                       

45  (1946).    But  the  Comment  cannot  change the  unambiguous

language of a duly adopted federal rule.  Thus, we agree with the

district court that "the  commentary to Rule 57 cannot  limit the

district courts' rulemaking power  in ways not prescribed by  the

Rule's  text."    Moreover, Baylson's  conclusion  that  district                                             

                                                  

24  We also reject plaintiffs' argument that Local Rule 3.8(f) is
inconsistent with  grand jury  secrecy requirements  contained in
Federal  Rule  of Criminal  Procedure 6(e).    We agree  with the
district court that "the same secrecy issues arise in the context
of  post-service  motions  to  quash, and  district  courts  have
routinely used in camera  procedures to ensure that Rule  6(e) is                                  
not violated."   Almond, 852 F. Supp. at 83-84 n.6 (citing United                                                                           
States v. R.  Enterprises, Inc., 498 U.S. 292, 302  (1991)).  See                                                                           
supra at p. 20 (discussing the secrecy issue).               

25   The  Advisory Committee's comment  to Rule 57 provides  that
the purpose of the rule is to leave the individual courts free to
regulate some "matters of detail", either by local rule or usage.
The comment  goes on to  state that  among such matters  are "the
mode of impanelling a  jury, the manner and order  of interposing
challenges  to jurors, the manner  of selecting the  foreman of a
trial jury, the matter of sealed verdicts, the order of counsel's
arguments to the jury, and other similar details."

                               -39-

courts' rule-making  authority is limited to  "matters of detail"

is  in direct  conflict  with the  Supreme  Court's decisions  in

Colgrove, 413  U.S. at 164  (upholding local  rule providing  for                  

six-person  juries) and Theard 54  U.S. at 281-83 (upholding rule                                        

concerning disbarment  of attorneys), neither  of which  involved

"matters  of detail."   Along  this line,  we have  canvassed the

Supreme Court's decisions with  respect to district courts' local

rule-making authority and found no cases that rely on the Comment

to  Rule 57.   Finally,  we  point out  that Rule  57, which  was

adopted  in  1944, was  rewritten in  1985  and now  provides for

"appropriate public  notice and  an opportunity to  comment," and

for review of local rules by the judicial council of the circuit.

We think these additions  indicate that, at least by 1985, it was

clear that district courts' rule-making authority was not limited

to mere "matters of detail."

          For the foregoing reasons,  we conclude that Local Rule

3.8(f), as  applied  to grand  jury  subpoenas, is  a  legitimate

exercise  of  the  rule-making  authority of  the  United  States

District  Court  for Rhode  Island.    Accordingly, the  district

court's decision to the contrary is reversed.

IV.  Trial Subpoenas          IV.  Trial Subpoenas                              

          The district court held that the United States District

Court for Rhode  Island has the power to  adopt and enforce Local

Rule  3.8(f), as  applied to  trial subpoenas.   We  agree.   The

analysis supporting our  conclusion that Local  Rule 3.8(f) is  a

valid exercise of the  district court's rule-making authority, as

                               -40-

applied  to grand  jury subpoenas, applies  with even  more force

with  respect  to  trial  subpoenas.     The  Supreme  Court  has

recognized that  the power of  federal district  courts to  adopt

rules  regarding trials is broader than with respect to its power

over the  grand jury.  Williams,  112 S. Ct. at  1744.  Moreover,                                         

because we conclude that  Local Rule 3.8(f), as applied  to grand

jury subpoenas, is not  inconsistent with either Rule 17  or Rule

57 of the Federal Rules of Criminal Procedure 17, it follows that

it  is  not inconsistent  with these  Rules  as applied  to trial

subpoenas.26   Plaintiffs  have presented  us with  no persuasive

authority  to  the  contrary.    The  district  court's  decision

granting  summary   judgment  for  the   federal  defendants  is,

therefore, affirmed.

V.  Issues Involving the State Version of Rule 3.8(f)          V.  Issues Involving the State Version of Rule 3.8(f)                                                               

          Our decision that Local Rule 3.8(f) is a valid exercise

of the  federal district court's rule-making  authority moots the

issues raised by the  state defendants with respect to  the state

version of Rule 3.8(f).  We will briefly explain why.

          The  district  court  held  that,  because  the federal

version  of Rule  3.8(f)  is invalid  as  applied to  grand  jury

subpoenas,  enforcing the  state version  of Rule  3.8(f) against

federal prosecutors practicing in federal court would violate the

                                                  

26    As the  district court  noted,  because "Rule  17  does not
differentiate between grand jury and trial subpoenas, but instead
sets out the basic  mechanics governing all types  of subpoenas,"
the analysis with respect to Rule 17 "applies with equal force to
both applications of Local Rule 3.8(f)."  Almond, 852 F. Supp. at                                                          
91.

                               -41-

Supremacy Clause of the United States Constitution.  The district

court's  Supremacy Clause  analysis was  premised on  its holding

that  the federal version  of the  Rule is  invalid.   Because we

conclude here that Local  Rule 3.8(f) is a valid  exercise of the

federal district court's rule-making authority, it is the federal

version  of the  Rule  that  will  be  enforced  against  federal

prosecutors  practicing  in  Rhode  Island federal  court.    The

Supremacy  Clause is  relevant  only to  state interference  with

federal  laws.   See  Hillsborough  County  v. Automated  Medical                                                                           

Laboratories, Inc., 471 U.S. 707 (1985).  There is, therefore, no                            

conflict  with the  Supremacy  Clause, and  the  decision of  the

district court to the contrary is necessarily reversed.

          Similarly,  the state  defendants' contention  that the

district court  lacked subject matter jurisdiction  to review the

validity of  the state version  of Rule 3.8(f)  by virtue of  the

"Rooker-Feldman" doctrine is mooted by our decision upholding the                         

federal version of  Rule 3.8(f).   See Rooker  v. Fidelity  Trust                                                                           

Company, 263 U.S. 444;  District of Columbia Court of  Appeals v.                                                                        

Feldman, 460  U.S. 488 (1983).   That is, we have  no occasion to                 

address the state version of the Rule.

                            CONCLUSION                                      CONCLUSION

          For  the reasons  stated herein,  we conclude  that the

United States District Court for Rhode Island has the rule-making

authority to adopt and  enforce Local Rule 3.8(f), as  applied to

both  grand  jury  and trial  subpoenas.    The  decision of  the

district court is affirmed in part and reversed in part.                                                                 

                               -42-

                            Appendix A                                                

Rule  3.8.    Special  Responsibilities of  a  Prosecutor.    The          Rule  3.8.    Special  Responsibilities of  a  Prosecutor.
prosecutor in a criminal case shall:

                              * * *

          (f)  not,  without  prior judicial  approval,
          subpoena   a  lawyer   for  the   purpose  of
          compelling  the  lawyer  to provide  evidence
          concerning a person who is or was represented
          by the lawyer when such evidence was obtained
          as   a   result   of    the   attorney-client
          relationship.

                             COMMENT

                              * * *

            The prohibition in  paragraph (f) was added
          because of the increasing incidence  of grand
          jury  and  trial  subpoenas  directed  toward
          attorneys.  It is the belief of the committee
          that  the  requirements  of   prior  judicial
          approval, which should  be granted or  denied
          after  the  opportunity  for  an  adversarial
          proceeding,  will  serve  as  an  appropriate
          safeguard to this practice and its  threat to
          the  confidentiality  and  integrity  of  the
          attorney-client relationship.   The committee
          believes  that  a   court  called  upon   for
          judicial   approval   should  be   guided  by
          appropriate  standards.    See  e.g.,  United                                                                 
          States  v. Klubock,  832 F.2d  664  (1st Cir.                                      
          1987) (en banc).  Accordingly, prior judicial
          approval  should be  withheld unless  (1) the
          information  sought  is  not  protected  from
          disclosure  by  an applicable  privilege, (2)
          the  evidence  sought  is  essential  to  the
          successful    completion   of    an   ongoing
          investigation  or  prosecution  and   is  not
          merely     peripheral,     cumulative,     or
          speculative,  (3)  the  subpoena   lists  the
          information  sought  with  particularity,  is
          directed at information  regarding a  limited
          subject matter in a reasonably limited period
          of  time,  and  gives reasonable  and  timely
          notice, (4)  the purpose  of the subpoena  is
          not  to harass  the  attorney or  his or  her
          client,   and   (5)   the    prosecutor   has
          unsuccessfully  made all  reasonable attempts
          to  obtain the  information sought  from non-

                               -43-

          attorney   sources  and  there  is  no  other
          feasible    alternative    to   obtain    the
          information.

See Report to the House Delegates, ABA Criminal Justice Section,                                           
February 1988.

                               -44-

                            Appendix B                                                

Rule 17.  Subpoena          Rule 17.  Subpoena

  (a) For  Attendance of Witnesses;  Form; Issuance.   A subpoena            (a) For  Attendance of Witnesses;  Form; Issuance.
shall  be issued by the  clerk under the  seal of the  court.  It
shall state the name of  the court and the title, if  any, of the
proceeding,  and shall command each person to whom it is directed
to  attend and  give testimony  at the  time and  place specified
therein.  The clerk shall issue a subpoena, signed and sealed but
otherwise in  blank to a  party requesting it, who  shall fill in
the blanks before it is served.   A subpoena shall be issued by a
United  States  magistrate  judge  in a  proceeding  before  that
magistrate judge, but it need not be under the seal of the court.

  (b)  Defendants Unable to  Pay.  The  court shall  order at any            (b)  Defendants Unable to  Pay.
time that a  subpoena be issued  for service on  a named  witness
upon an ex parte  application of a defendant upon  a satisfactory                          
showing  that the defendant is financially unable to pay the fees
of the witness and that the  presence of the witness is necessary
to an adequate defense.   If the court orders the subpoena  to be
issued the  costs incurred by  the process  and the  fees of  the
witness so subpoenaed  shall be paid in the  same manner in which
similar costs and fees are  paid in case of a  witness subpoenaed
in behalf of the government.

  (c) For Production of  Documentary Evidence and of Objects.   A            (c) For Production of  Documentary Evidence and of Objects.
subpoena may also  command the person  to whom it is  directed to
produce the books, papers,  documents or other objects designated
therein.  The court on motion  made promptly may quash or  modify
the subpoena if compliance would be unreasonable or 
oppressive.   The court may direct  that books, papers, documents
or  objects designated  in the  subpoena  be produced  before the
court at a time prior to the trial or prior to the time when they
are  to  be offered  in evidence  and  may upon  their production
permit  the  books,  papers,  documents or  objects  or  portions
thereof to be inspected by the parties and their attorneys.

  (d)  Service.  A  subpoena may be  served by the  marshal, by a            (d)  Service.
deputy marshal or by  any other person who is not a party and who
is not less than 18 years of age.  Service of a subpoena shall be
made by  delivering a  copy thereof  to the  person named  and by
tendering to that person  the fee for 1 day's attendance  and the
mileage allowed by law.  Fees and mileage need not be tendered to
the witness upon service  of a subpoena  issued in behalf of  the
United States or an officer or agency thereof.

                               -45-

  (e) Place of Service.            (e) Place of Service.

    (1) In United States.  A subpoena requiring the attendance of              (1) In United States.
a witness at a hearing or trial may be served at any place within
the United States.

    (2)  Abroad.  A subpoena  directed to a  witness in a foreign              (2)  Abroad.
country shall issue under the circumstances and in the manner and
be served as provided in Title 28, USC   1783.

  (f) For Taking Deposition; Place of Examination.            (f) For Taking Deposition; Place of Examination.

    (1) Issuance.  An  order to take a deposition  authorizes the              (1) Issuance.
issuance by the clerk of the  court for the district in which the
deposition is to  be taken of subpoenas for the  persons named or
described therein.

    (2) Place.  The  witness whose deposition is to  be taken may              (2) Place.
be required by  subpoena to attend at any place designated by the
trial court, taking into  account the convenience of the  witness
and the parties.

  (g) Contempt.  Failure by any person without adequate excuse to            (g) Contempt.
obey a  subpoena served upon that person may be deemed a contempt
of  the court from which the subpoena  issued or of the court for
the district  in which  it issued  if it was  issued by  a United
States magistrate judge.

  (h) Information  Not Subject to  Subpoena.  Statements  made by            (h) Information  Not Subject to  Subpoena.
witnesses or prospective witnesses may not be subpoenaed from the
government or the defendant under this rule, but shall be subject
to  production only  in  accordance with  the provisions  of Rule
26.2.

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