In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-004-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11697 IN THE MATTER OF A GRAND JURY INVESTIGATION. Suffolk. September 4, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Grand Jury. Subpoena. Cellular Telephone. Constitutional Law, Grand jury, Subpoena, Self-incrimination. Practice, Criminal, Grand jury proceedings, Subpoena duces tecum, Warrant. Evidence, Grand jury proceedings. Attorney at Law, Attorney-client relationship. Search and Seizure, Warrant, Probable cause. Probable Cause. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 7, 2014. The case was reserved and reported by Botsford, J. Aaron M. Katz (Patrick Welsh with him) for the petitioner. James L. Sultan (Charles W. Rankin with him) for the amicus curiae. Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth. LENK, J. This appeal arises from a petition brought under G. L. c. 211, § 3, challenging a Superior Court judge’s order approving the issuance of a grand jury subpoena duces tecum that compels a law firm to produce a cellular telephone. The single justice reserved and reported the matter to this court, and our analysis is confined to the limited record before us. The Commonwealth contends that the telephone belonged to John Doe,[1] the target of a grand jury investigation; that it was transferred from Doe to the law firm to obtain legal advice; and that it contains in the information stored on its memory, particularly in its record of text messages, evidence of a crime under investigation by the grand jury. The Superior Court judge determined that, while a subpoena served on Doe would violate his right against self-incrimination, and a subpoena served on the law firm would violate the attorney-client privilege, a subpoena compelling the law firm to produce the telephone could be served upon an ex parte showing by the Commonwealth of probable cause sufficient for the issuance of a search warrant. We conclude that, on the record before us, the attorney-client privilege protects Doe against compelled production of the telephone by the law firm, and that the protection afforded by the attorney-client privilege may not be set aside based on a showing of probable cause. We therefore reverse the Superior Court judge’s order. 1. Background. The law firm began representing Doe in April, 2013. According to the Commonwealth, in June, 2013, Doe transferred the telephone to the law firm in connection with its provision of legal services to him.[2] In March, 2014, the Commonwealth moved […]