
USCA1 Opinion

	




                            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 & 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 & 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 & 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 &  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. & 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  & 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  & 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.                                         -46-                                                        -47-
