## Facts

- A federal grand jury in the Northern District of Oklahoma investigated James Coltharp and an alleged drug organization.
- Four defendants, alleged to be connected to that organization, were charged with drug-related crimes in the Eastern District of Oklahoma and were represented by criminal defense attorneys Scott M. Anderson, James G. Walker, John Echols, Tex McConathy, and Stanley Moore.
- The grand jury suspected Coltharp or the organization paid the defendants’ legal fees and issued subpoenas to the attorneys seeking information and documents concerning the source of payment of the attorneys’ fees (and related fee records).
- The attorneys moved to quash the subpoenas, asserting attorney–client privilege and constitutional objections; the district court denied the motions.
- The district court ordered the attorneys to appear before the grand jury and testify and produce the subpoenaed materials.
- The attorneys appeared but refused to testify or produce the requested documents, relying primarily on attorney–client privilege and Sixth Amendment concerns.
- The district court held each attorney in civil contempt and ordered immediate incarceration.
- The attorneys sought emergency relief; the Tenth Circuit stayed the contempt sanctions and released the attorneys on their own recognizance pending appeal.

## Issues

1. Whether attorney–client privilege protects information and documents about the source (and related details) of clients’ payment of legal fees sought by a grand jury.
2. Whether any recognized exception to the general rule that fee and client-identity information is not privileged (including the “last-link” theory) applied on these facts.
3. Whether compelling defense counsel to disclose fee-source information in a grand jury investigation violates the clients’ Sixth Amendment right to counsel, including for clients already convicted and pursuing appeals.
4. Whether the government was required to make a heightened showing of “need” or lack of alternative sources before enforcing grand jury subpoenas directed to defense counsel for fee-source information.
5. Whether the district court properly held the attorneys in civil contempt for refusing to comply with the subpoenas.

## Decision

- The court affirmed enforcement of the grand jury subpoenas and affirmed the civil contempt orders.
- It held that attorney–client privilege generally does not cover client identity, fee arrangements, fee amounts, or the source of fee payments, and the attorneys did not carry their burden to show the subpoenaed fee-source information was a confidential attorney–client communication.
- It rejected application of claimed exceptions (including the “last-link” theory) because the subpoenas sought factual payment information to assist an ongoing investigation and the record did not show that disclosure would necessarily reveal confidential legal communications.
- It found no Sixth Amendment violation: to the extent the subpoenas related to pre-indictment investigative matters, the Sixth Amendment had not attached; and as to any post-conviction representation (including pending appeals), the attorneys showed no actual conflict or concrete interference with representation from disclosure of fee-source information.
- It declined to impose a special “need” requirement for the subpoenas, concluding the grand jury could seek relevant, non-privileged information without proving necessity or exhaustion of other sources.
- It concluded the district court acted within its discretion in using civil contempt to coerce compliance after the attorneys refused to testify and produce documents.

## Legal Principles

- Attorney–client privilege protects confidential communications made for the purpose of obtaining or providing legal advice; it does not generally protect the fact of representation, client identity, fee arrangements, fee amounts, or the source of payment.
- The party asserting attorney–client privilege bears the burden to show that the specific information sought is both a communication and confidential, and that it falls within the privilege’s purpose.
- Exceptions that may protect otherwise non-privileged identity or fee information are narrow and apply only when disclosure would, in substance, reveal a confidential legal communication or function as the final, revealing link to such a communication on an established record.
- The Sixth Amendment right to counsel attaches only after initiation of adversary criminal proceedings; subpoenas issued during a grand jury investigation do not violate that right absent attachment and a concrete showing of interference with representation.
- Grand juries have broad authority to subpoena relevant information; enforcement is not conditioned on a government showing of special need or unavailability of alternative sources when the material sought is non-privileged.
- Civil contempt is a proper coercive sanction for refusal to comply with valid grand jury subpoenas and court orders enforcing them.

## Conclusion

The Tenth Circuit upheld grand jury subpoenas requiring defense attorneys to disclose fee-source information connected to clients charged in drug cases allegedly tied to a larger drug organization, holding the material was not privileged, no narrow exception applied, the Sixth Amendment was not violated on this record, no heightened government showing of need was required, and contempt sanctions were properly imposed for noncompliance.


In re Grand Jury Subpoenas (Andersen), 906 F.2d 1485 (1990)