PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: Grand Jury Subpoena

UNITED STATES OF AMERICA,
Respondent-Appellee,                                                  No. 99-2229

v.

UNDER SEAL,
Petitioner-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-99-2417-AW)

Argued: November 30, 1999

Decided: February 25, 2000

Before WIDENER and WILLIAMS, Circuit Judges, and
Samuel G. WILSON, Chief United States District Judge
for the Western District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilson wrote the opinion
in which Judge Widener and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Joshua R. Treem, SCHULMAN, TREEM, KAMIN-
KOW, GILDEN & RAVENELL, L.L.C., Baltimore, Maryland, for
Appellant. Sandra Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Rod J. Rosenstein, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

OPINION

WILSON, Chief District Judge:

The United States served a grand jury subpoena on an attorney
commanding him to testify and produce documents concerning the
identity of a client. The client intervened and moved to quash on the
ground that compliance would invade the attorney-client privilege.
The district court denied the motion, and this appeal followed. We
conclude that the compelled disclosure of the client's identity would
not violate the privilege. Accordingly, we affirm.

I.

A federal grand jury in the District of Maryland is investigating
allegations that 37 Forrester Street, S.W., Washington, D.C. ("the
property"), is an open air drug market under the control and authority
of Erskine "Pee Wee" Hartwell and his alleged confederates. The
same grand jury has returned indictments against Hartwell and
numerous alleged co-conspirators for money laundering and conspir-
acy to distribute heroin, cocaine, and marijuana in the District of
Maryland and has named the Forrester Street property in a forfeiture
count as drug trafficking proceeds. The grand jury continues to inves-
tigate the ownership of the property as it relates to other aspects of
the drug trafficking operation.

The property is titled in the name "Daniel C. Quispehuman," whom
the government believes to be a straw owner. According to Washing-
ton, D.C., land records, the property was titled in that name on June
23, 1991. For a number of years, residents living near the property
complained that drug dealers were operating in and around the build-
ing. In 1998, the D.C. Council enacted laws that permit community
groups to file civil nuisance lawsuits against owners of properties

                    2
used for drug dealing. A non-profit community organization, known
as Bellview Improvement Council, Inc. ("BIC"), retained a law firm
to help stop the drug activity at the property, and, on September 11,
1998, Mark S. Davies, counsel for BIC, sent a letter to "Daniel
Quispehuman" demanding that he stop the drug dealing at the prop-
erty. After receiving no response, Davies sent a second letter
addressed to Quispehuman on April 9, 1999, indicating that he would
file suit on April 29, 1999, absent a response to his letter.

On April 28, 1999, Mark Rochon wrote a letter to Davies, stating:

          I will be undertaking the clarification of ownership of 37
          Forrester Street, S.W., Washington, D.C. 20032. My client
          hopes to re-title the property in his name and make efforts
          to deal with the problems described in your letters to Mr.
          Daniel C. Quispehuman, dated September 11, 1998 and
          April 19, 1999.

          I will need about two weeks to put these efforts into place.
          Please forego any other actions until that time, as I am sure
          that needless and fruitless litigation is not your goal.

          I look forward to working with you to remedy the problems
          at 37 Forrester Street. I will be able to be more forthcoming
          in the near future, once title is clear.

On May 3, 1999, Davies replied to Rochon, agreeing to postpone
filing suit for two weeks. On May 17, 1999, Davies wrote Rochon to
summarize a phone conversation of that day, stating that Rochon had
informed him that the property was "now `boarded up'" and "its `ten-
ants have been evicted.'" Davies further noted that Rochon "declined
to disclose the name of [his] client, but stated that [he did] not repre-
sent Mr. Quispehuman, the recorded owner of 37 Forrester Street."

On July 12, 1999, the government served a grand jury subpoena on
Rochon seeking Rochon's testimony, as well as any: (1) written
retainer agreements with the unidentified client referenced in
Rochon's April 28 letter; (2) nonprivileged documents reflecting any
efforts to re-title 37 Forrester Street in the name of the client refer-

                     3
enced in the April 28 letter; (3) correspondence with Daniel C.
Quispehuman; and (4) nonprivileged documents relating to the own-
ership of 37 Forrester Street. Following issuance of the subpoena, an
Assistant United States Attorney involved in the investigation
informed Rochon that she would question him before the grand jury
concerning the identity of his client.

Rochon moved to quash the subpoena, contending that requiring
him to disclose the identity of his client would reveal the client's pur-
poses and motives for retaining him and, therefore, would result in the
disclosure of confidential attorney-client communications. In support
of his motion, Rochon submitted a declaration stating that the client
retained him in connection with certain issues relating to the property,
that the client requested that his identity not be disclosed without his
consent, and that Rochon had not disclosed his client's identity to any
third party.

Adopting Rochon's arguments, the client moved to intervene and
quash the grand jury subpoena. The district court granted the motion
to intervene but, on September 1, 1999, denied Rochon and his cli-
ent's motions to quash. The client filed a timely notice of appeal, and
the district court stayed enforcement of the subpoena pending the
appeal.

II.

The client argues that his identity, something normally not pro-
tected by the attorney-client privilege, is protected because its disclo-
sure would reveal a confidential communication -- his motive or
purpose for seeking legal advice. Despite his authorization of
Rochon's letter to Davies, the client claims that he never intended for
Rochon to reveal his identity. It follows, he argues, that since
Rochon's letter reveals his motives or purposes in seeking legal
advice, matters that are ordinarily privileged, the court must extend
that privilege to his identity, which is not ordinarily privileged. We
conclude that the client cannot create a privilege that protects his
identity by voluntarily disclosing a confidential communication. If we
extended the privilege to the client's identity in this case, we would
be allowing him to do just that. Therefore, the client's identity is not
protected.

                     4
"The attorney-client privilege is the oldest of the privileges for con-
fidential communications known to the common law." Upjohn v.
United States, 449 U.S. 383, 389 (1981). "[W]hen the privilege
applies, it affords confidential communications between lawyer and
client complete protection from disclosure." Hawkins v. Stables, 148
F.3d 379, 383 (4th Cir. 1998). However, since it impedes the full and
free discovery of the truth, the attorney-client privilege "is to be nar-
rowly construed" and "recognized `only to the very limited extent that
. . . excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means for
ascertaining truth.'" Id. (quoting Trammel v. United States, 445 U.S.
40, 50 (1980)). As such, it applies only to "[c]onfidential disclosures
by a client to an attorney made in order to obtain legal assistance,"
Fisher v. United States, 425 U.S. 391, 403 (1976), and "`[t]he burden
is on the proponent of the attorney-client privilege to demonstrate its
applicability.'" Hawkins, 148 F.3d at 383 (quoting United States v.
Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). 1

"`[T]he identity of the client, the amount of the fee, the identifica-
tion of payment by case file name, and the general purpose of the
work performed are usually not protected from disclosure by the
attorney-client privilege,'" Chaudhry v. Gallerizzo, 174 F.3d 394, 402
(4th Cir. 1999) (quoting Clarke v. American Commerce Nat'l Bank,
974 F.2d 127, 129 (9th Cir. 1992)), because "such information ordi-
narily reveals no confidential professional communications between
_________________________________________________________________
1 This Circuit has adopted the classic test for determining the existence
of the attorney-client privilege:

          "The privilege applies only if (1) the asserted holder of the privi-
          lege 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 is 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) assis-
          tance 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."

Hawkins, 148 F.3d at 383 (quoting Jones, 696 F.2d at 1072).

                     5
attorney and client . . . ." In re Grand Jury Matter, 926 F.2d 348, 352
(4th Cir. 1991) (quoting In re Osterhoudt, 722 F.2d 591, 593 (9th Cir.
1983)). "Absent special circumstances, disclosure of the identity of
the client and fee information stand on a footing different from com-
munications intended by the client to explain a problem to a lawyer
in order to obtain legal advice." In re Shargel, 742 F.2d 61, 63 (2nd
Cir. 1984).

In NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965), we recognized
that, under special circumstances, the attorney-client privilege may
extend to the client's identity. In Harvey, an attorney, apparently in
furtherance of his representation of a client, hired a detective. See 349
F.2d at 901-02. The district court ordered the detective to name the
attorney who hired him. See id. at 901. Once named, however, the
attorney refused to identify his client, and the district court quashed
the subpoena requiring identification. See id . at 901-02. On appeal,
we recognized an exception to the general rule that a client's identity
is not privileged:

          To the general rule is an exception, firmly bedded as the rule
          itself. The privilege may be recognized when so much of the
          actual communication has already been disclosed that iden-
          tification of the client amounts to disclosure of a confiden-
          tial communication.

Id. at 905. It appeared that the client's identity was sufficiently inter-
twined with the client's confidences such that compelled disclosure
of the former essentially disclosed the latter. See id. at 905. If so, we
concluded that the district court should not compel the attorney to
reveal the identity of his client. See id. at 907. Accordingly, we
remanded for the district court to determine whether the act of hiring
the investigator was sufficiently connected to the rendering of legal
services as to cloak it with the privilege. See id.2

Since deciding Harvey, we have consistently held that a client's
identity is privileged only if disclosure would in essence reveal a con-
fidential communication. See, e.g., Chaudhry, 174 F.3d at 403; In re
_________________________________________________________________
2 On remand, the district court found the client's identity to be privi-
leged. See NLRB v. Harvey, 264 F. Supp. 770, 772 (W.D. Va. 1966).

                     6
Grand Jury Matter, 926 F.2d at 352; United States v. Ricks, 776 F.2d
455, 465 (4th Cir. 1985). Although other circuits have, at times, indi-
cated a willingness to protect a client's identity or fee information
because disclosure would either implicate the client in the very crimi-
nal activity for which legal advice was sought, see, e.g., United States
v. Strahl, 590 F.2d 10, 12 (1st Cir. 1978), cert. denied, 440 U.S. 918
(1979), or supply the `last link' in an existing chain of incriminating
evidence likely to lead to the client's indictment, see, e.g., In re
Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.
1982), we have rejected those exceptions. See In re Grand Jury
Matter, 926 F.2d at 352. Instead, we have insisted that the client dem-
onstrate that disclosure would reveal a confidential, privileged com-
munication. Here, the client asserts that disclosure would reveal the
following confidential motives or purposes: (1) that he "was con-
cerned with the allegations raised by Mr. Davies' letters"; (2) that he
"sought Mr. Rochon's legal advice and assistance in avoiding the pos-
sibility of impending litigation concerning 37 Forrester Street"; and
(3) that he "wanted Mr. Rochon to potentially help him re-title the
property in his name and remedy the drug trafficking and other prob-
lems occurring on the property." All of these, however, are motives
or purposes that the client voluntarily disclosed and, as such, are no
longer confidential.

The attorney-client privilege protects only confidential communi-
cations. See Zeus Enter. Inc. v. Alphin Aircraft, Inc., 190 F.3d 238,
244 (4th Cir. 1999); In re Grand Jury Matter, 926 F.2d at 352. In In
re Grand Jury Proceedings, 727 F.2d 1352, 1358 (4th Cir. 1984), we
held that client communications with a lawyer relating to the prepara-
tion of a prospectus to be used in the enlistment of investors were not
confidential even though the prospectus was never published because
it "was to be published to others and was not intended to be kept in
confidence." As we explained later in United States v. Under Seal,
748 F.2d 871, 875 (4th Cir. 1984), "[t]he clients had decided to pub-
lish a prospectus before approaching their attorney-- thus, the attor-
ney had been employed to convey information to third parties rather
than to provide legal advice for the clients' own guidance." Those cir-
cumstances contrasted with the circumstances of United States v.
Under Seal, in which we found that client communications instructing
an attorney to "research the possibility of filing public papers"
remained privileged because the client had not yet demonstrated the

                    7
requisite intent to publish. 748 F.2d at 875 (emphasis added). And the
latter circumstances contrast markedly with those of the case before
us, in which the client authorized the public disclosure of a letter he
now claims reveals confidential motives and purposes.

The long-standing general rule does not afford protection to the cli-
ent's identity, and that rule is not subject to the client's manipulation.
A confidential communication ceases to be confidential when the cli-
ent authorizes its disclosure.3 The client cannot bootstrap a privilege
to protect his identity. He cannot protect his identity from disclosure
by anonymously disclosing communications, information, purposes or
motives that, otherwise, would remain protected. Yet, under the cli-
ent's reasoning, his disclosures strengthen his claim of privilege. As
he views it, the more revealing his disclosures, the stronger his argu-
ment that his identity must remain confidential. As we view it, if he
wants a communication to remain confidential he should not reveal
it. He must choose between confidentiality and disclosure. He cannot
have both. Simply put, we do not recognize an exception that protects
the client's identity because the client has authorized the disclosure
of information that he could have kept confidential. Rather, we recog-
nize, as we did in Harvey, a narrow exception that protects a client's
identity when the client has not authorized the disclosure of confiden-
tial information or of a confidential communication, and the com-
pelled disclosure of his identity is tantamount to revealing his
confidences.
_________________________________________________________________

3 There is a convergence of waiver and the underpinning of our deci-
sion. The disclosure of privileged information waives the privilege. See
Hawkins, 148 F.3d at 384 n.4 ("As a general rule, implied waiver occurs
when the party claiming the privilege has made any disclosure of a confi-
dential communication to any individual who is not embraced by the
privilege."); Zeus Enter. Inc., 190 F.3d at 244 ("The proponent of the
privilege must establish not only that an attorney-client relationship
existed, but also that the specific communications at issue are privileged
and that the privilege was not waived."). However, no broad-based
waiver is apparent that would permit the grand jury to question Rochon
concerning his client's motives and purposes, and we do not intimate that
our decision reaches beyond the client's identity and the documents iden-
tified in the challenged subpoena.

                    8
In Harvey, neither the client nor his attorney made public the cli-
ent's confidential interests. Instead, a third party, the detective, dis-
closed them. In this case, however, the client's attorney made an
authorized disclosure of his client's interests in the April 28 letter to
Davies. Insofar as that letter reveals certain motives or purposes,
those motives or purposes ceased to be confidential when Rochon
sent the letter. See United States v. Under Seal , 748 F.2d at 875 ("[I]f
a client communicates information to his attorney with the under-
standing that the information will be revealed to others, that informa-
tion as well as the details underlying the data which was to be
published will not enjoy the privilege." (quotations and citations
omitted)).4 When a client hires an attorney to take public actions on
the client's behalf -- in this case, sending the letter to Davies in order
to avoid a lawsuit -- the privilege does not extend to the client's iden-
tity once that public action is taken.5
_________________________________________________________________
4 The client claims that, since he never purchased the property, he took
no public action. He confuses formal legal action with public action.
Although it is true enough that he took no formal legal action to retitle
the property, he sent a letter to adverse parties disclosing the motives or
purposes he now claims are confidential. Since he disclosed them to
someone outside the attorney-client relationship they are no longer privi-
leged. See Hawkins, 148 F.3d at 384 n.4. He did even more, however,
than simply disclose them to persons outside the attorney-client relation-
ship, he disclosed them to adversaries who were threatening public
action.
5 The client cites Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), as
support for the proposition that an attorney can take public action on
behalf of an anonymous client and then protect the client's identity under
the attorney-client privilege. In Baird, individuals retained an attorney to
determine whether their tax returns were proper and to take any steps to
limit their legal exposure. See 279 F.2d at 626. Upon concluding that his
clients owed back taxes, the attorney forwarded the amount due anony-
mously to the IRS on his clients' behalf. See id . The IRS subsequently
subpoenaed the attorney, seeking disclosure of the identities of his
unnamed clients. See id. at 627. The Ninth Circuit found that the identi-
ties of the attorney's clients were protected by the attorney-client privi-
lege because "the circumstances of the case are such that the name of the
client is material only for the purpose of showing an acknowledgment of
guilt on the part of such client of the very offenses on account of which
the attorney was employed." Id. at 633. See also Tillotson v. Boughner,
350 F.2d 663 (7th Cir. 1965) (similar facts, same result).

                  9
The attorney-client privilege is not intended to permit "an attorney
to conduct his client's business affairs in secret." In re Grand Jury
Subpoenas (Hirsch), 803 F.2d 493, 496 (9th Cir. 1986). As the Sec-
ond Circuit, in refusing to extend the privilege beyond the protection
of confidential legal communications, stated:

          It seems evident to us that a broad privilege against the dis-
          closure of the identity of clients and of fee information
          might easily become an immunity for corrupt or criminal
          acts. [citation omitted]. Such a shield would create unneces-
          sary but considerable temptations to use lawyers as conduits
          of information or of commodities necessary to criminal
          schemes or as launderers of money. The bar and the system
          of justice will suffer little if all involved are aware that
          assured safety from disclosure does not exist.

In re Shargel, 742 F.2d at 64. "A client may not `buy' a privilege by
retaining an attorney to do something that a non-lawyer could do just
as well." 2 Saltzburg et al., Federal Rules of Evidence Manual 698
(7th Ed. 1998).

In an affidavit in the district court, Rochon asserted that he was
retained by the client "with the understanding that [the client's] iden-
tity would not be disclosed to any third party during the course of
[Rochon's] legal representation." The mere belief of either the client
_________________________________________________________________
Although in Harvey we cited Baird for the general proposition that a
client's identity may be privileged, see 349 F.2d at 905, we reject the
notion that a client can protect his identity by hiring an attorney to make
a disclosure for him. An individual cannot purchase anonymity by hiring
a lawyer to deliver his money or his messages. See Charles Alan Wright
& Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5478
(1986) ("Inasmuch as there are any great many business firms providing
messenger service, we may deduce that the client is willing to pay the
higher cost of employing a lawyer to make his deliveries because he
understands what the courts do not: namely, that he is not hiring a mes-
senger but renting the privilege. Once the issue is put this way, it is diffi-
cult to see how granting the privilege to the lawyer-messenger can be
justified.").

                    10
or Rochon, however, that the attorney-client privilege would allow
Rochon to secretly carry out legal or other business on the client's
behalf is not enough to create a privilege as to the client's identity.
In the words of the Eighth Circuit, "we know of no authority . . . hold-
ing that a client's beliefs, subjective or objective, about the law of
privilege can transform an otherwise unprivileged conversation into
a privileged one." In Re Grand Jury Subpoena Duces Tecum, 112
F.3d 910, 923 (8th Cir. 1997), cert. denied, 521 U.S. 1105, 117 S.Ct.
2482 (1997).

In summary, the client does not provide evidence of an
unauthorized disclosure of a confidential communication which,
when coupled with his identity, breaches the attorney-client privilege.
Rather, the client claims that an authorized letter discloses his
motives or purposes in seeking legal advice. If so, the disclosure is
his own, and the information is no longer confidential and is not pro-
tected. Therefore, the District Court properly denied the motions to
quash.

III.

For the reasons stated, the judgment of the district court is
affirmed.

AFFIRMED

                     11
