                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 13-1957


In Re:    Grand Jury Subpoena

---------------------------

UNDER SEAL 1; UNDER SEAL 2,

                 Intervenors - Appellants,

            v.

UNITED STATES OF AMERICA,

                 Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:12-MS-00256-1)


Argued:    September 16, 2013                 Decided:   October 16, 2013


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed in part and vacated in part by unpublished per curiam
opinion.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Appellants 1      challenge         the     district        court’s        order

granting     the     government’s    Motion          to    Compel      Documents       and

Testimony Pursuant to Grand Jury Subpoena (the “Motion”).                                In

its   order,   the    district    court        concluded     that:       (1)     certain

emails sent by a government-employed lawyer were not protected

by the attorney-client privilege, and (2) the attorney-client

privilege does not exist between a government official and a

government-employed       lawyer     in        the     context      of    a    criminal

investigation.

             We affirm the order of the district court only as to

the emails in question.          We vacate the remainder of the court’s

order.

                                          I.

           During the course of a grand jury investigation, the

government     issued    a   subpoena          duces      tecum   to     one     of    the

Appellants requiring, inter alia, the production of “all emails”

between    that      Appellant      and        a     government-employed          lawyer

referencing certain topics.          App. 35. 2           The Appellant listed two

      1
        Because this appeal concerns an ongoing grand jury
investigation, “we use generic terms to refer” to the parties
involved.   In re: Grand Jury Subpoena, 341 F.3d 331, 333 n.1
(4th Cir. 2003).
      2
       Citations to “App.” refer to the Appendix filed by the
parties in this appeal. The Appendix has been filed under seal.


                                          2
such    emails       on    its    privilege       log    as    being      protected     by    the

attorney-client           privilege.            See    id.    at    30.      The     government

subsequently filed the Motion, which requested not only a ruling

that the Appellant “failed to meet its burden of demonstrating

that     the    documents             withheld    are     privileged,”        but     also    “a

judicial determination that no . . . attorney-client privilege

exists between” the Appellant and a government-employed lawyer.

Id. at 1.

               The    district          court    held     a    hearing,       permitted      the

second     Appellant             to     intervene,       and       granted     the      Motion,

explaining,          “the    evidence          produced       in    this     case    does    not

establish that the privilege applies in this case,” and more

broadly, “the attorney-client privilege may not be asserted in

criminal       investigations            to    protect       communications         between    a

government official and a government-employed lawyer.”                                App. 88.

Appellants filed a timely notice of appeal.

                                                 II.

                                                 A.

               This       court       reviews    a     district      court’s        evidentiary

rulings -- including privilege determinations -- for abuse of

discretion, “factual findings as to whether a privilege applies

for    clear    error,       and       the    application      of    legal    principles      de

novo.”     United States v. Hamilton, 701 F.3d 404, 407 (4th Cir.

2012).

                                                 3
             It   is     well-settled       that    “confidential    conversations

between a defendant and his counsel generally are protected by

the attorney-client privilege, which affords the communications

complete protection from disclosure.”                   United States v. Lentz,

524   F.3d   501,      523    (4th   Cir.   2008)    (internal     quotation       marks

omitted).         This       court   has    held,   “[t]he      burden   is   on    the

proponent of the attorney-client privilege to demonstrate its

applicability.         The proponent must establish not only that an

attorney-client          relationship        existed,     but     also    that      the

particular communications at issue are privileged and that the

privilege was not waived.”             In re: Grand Jury Subpoena, 341 F.3d

331, 335 (4th Cir. 2003).            The proponent must prove,

      (1) the asserted holder of the privilege is or sought
      to become a client;

      (2) the person to whom the communication was made (a)
      is a member of the bar of a court, or his subordinate
      and (b) in connection with this communication is
      acting as a lawyer;

      (3) the communication relates to a fact of which the
      attorney was informed (a) by his client (b) without
      the presence of strangers (c) for the purpose of
      securing primarily either (i) an opinion on law or
      (ii) legal services or (iii) assistance in some legal
      proceeding, and not (d) for the purpose of committing
      a crime or tort; and

      (4) the privilege has been (a) claimed and (b) not
      waived by the client.

Lentz, 524 F.3d at 523 (internal quotation marks omitted).

             We agree with the district court that Appellants have

not met their burden of establishing the emails are protected by

                                            4
the attorney-client privilege.               Specifically, they do not meet

elements two and three above.                At the district court hearing,

the government-employed lawyer could not (or at least did not)

testify that he was acting as a lawyer or providing an opinion

of   law   or   legal    services   to   Appellants    with   respect   to   the

emails.     See App. 118.       The lawyer’s own declaration fails to

state the same.         See id. at 83-84.       Appellants provided no other

affidavits, statements, or witnesses on this point.

            Appellants argue they need not do so.             They posit that

it is sufficient that the government-employed lawyer generally

stated, “one of my primary roles is providing the [government

official] with advice” regarding certain issues.               See App. 110.

In so arguing, they rely heavily on In re Lindsey, which stated,

      We have little doubt that at least one of Lindsey’s
      conversations   subject   to  grand   jury  questioning
      “concerned the seeking of legal advice” and was
      between President Clinton and Lindsey or between
      others in the White House and Lindsey while Lindsey
      was “acting in his professional capacity” as an
      attorney.    Before the grand jury, Lindsey spoke of
      many instances when legal advice would clearly have
      been appropriate, . . . and he specifically affirmed
      that there were times when White House staff members
      came to him in his role as a member of the White House
      Counsel’s Office . . . .       Furthermore, there were
      times when Lindsey only invoked executive privilege,
      . . . at least implying that he invoked attorney-
      client privilege only when he thought it appropriate
      to do so. The issue whether the government attorney-
      client    privilege   could   be   invoked   in   these
      circumstances is therefore ripe for decision.




                                         5
158   F.3d      1263,      1271   (D.C.       Cir.          1998)        (citations        omitted)

(emphasis       in      original).            But           even        Lindsey         recognizes,

“consultation with one admitted to the bar but not in that other

person’s     role     as    lawyer     is    not       protected”            and   requires       the

proponent      of    the    privilege       to       “present          the   underlying        facts

demonstrating the existence of the privilege in order to carry

its burden.”          Id. at 1270 (internal quotation marks omitted).

Appellants      utterly      failed     to    present             any    specific        underlying

facts to establish the privilege and meet their burden.                                           The

record    contains         evidence    of     not          even    a     single     conversation

between    the       government       official         and        the     government-employed

lawyer    that       concerned    the       seeking          of    legal      advice.          Thus,

Lindsey is unavailing.

                                              B.

               Having decided that Appellants failed to meet their

burden as to the two emails, we must now address whether we can

review    the    district      court’s       broad          ruling       that      the   attorney-

client privilege does not exist between a government official

and a government-employed lawyer in the context of a criminal

investigation.          We    conclude       that          the    issue      is    moot,    and    to

review    it    at    this    juncture       would          be     to    render     an     advisory

opinion.

               Having      decided     that          the     two        emails     --    the    only

concrete evidence in this record -- do not give rise to the

                                                 6
privilege, there is no remaining justiciable dispute before us.

Indeed, review of the aforementioned broad ruling “could not

possibly have any practical effect on the outcome of the matter”

concerning the two emails, and therefore, the “dispute is moot

[because] the parties lack a legally cognizable interest in the

outcome.”     Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d

150, 161 (4th Cir. 2010); see also Reynolds v. Am. Nat’l Red

Cross, 701 F.3d 143, 156 (4th Cir. 2012).                    In such a situation,

“[t]he customary practice . . . is to vacate the moot aspects of

the lower court’s judgment.”         Norfolk S. Ry., 608 F.3d at 161.

             Furthermore, if we were to decide this moot issue, we

would be issuing an impermissible advisory opinion.                      Norfolk S.

Ry., 608 F.3d at 161 (“‘To decide a moot issue is to issue an

advisory opinion.’” (quoting Friends of Everglades v. S. Fla.

Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009))); see

also Flast v. Cohen, 392 U.S. 83, 96 (1968) (“[T]he oldest and

most consistent thread in the federal law of justiciability is

that   the    federal    courts     will       not   give    advisory    opinions.”

(internal quotation marks omitted)); Shenandoah Valley Network

v. Capka, 669 F.3d 194, 202 (4th Cir. 2012) (“[A] dispute is

lacking here — and because we cannot issue an advisory opinion —

we have no authority to adjudicate this suit.”).

             Considering     this     authority,            and   the    fact   that

Appellants     have     proffered    only       conclusory        and   hypothetical

                                           7
assertions    to    support    their    claim        that   the    attorney-client

privilege applies to the grand jury investigation as a whole, we

decline to assess their blanket assertion of the privilege.                         We

note, however, that should the record be more fully developed

through the course of the grand jury investigation such that a

concrete     dispute     arises   as      to     particular        communications,

justiciable claims may yet lie.

                                       III.

            For    the   foregoing     reasons,       we    affirm    the   district

court’s ruling that the two emails in question are not protected

by   the   attorney-client    privilege,        and    we   vacate    as    moot   the

court’s    broad    ruling    regarding        the    scope   of     the    privilege

between a government official and a government-employed lawyer

in the context of a criminal investigation.

                                                                 AFFIRMED IN PART
                                                              AND VACATED IN PART




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