Attorneys fervently hope that they will never be called as witnesses in any circumstances, but the greatest nightmare is to be called as a witness against one’s own client. In a decision issued Feb. 21 rendered in the context of a grand jury proceeding, the Second Circuit provided some protection against the realization of that nightmare. In this recent decision, the Second Circuit quashed a grand jury subpoena seeking to compel a defense attorney to testify about statements made by her client in her presence during an interview by the government.
The appeals court ruled that the work product privileged barred the testimony where the lawyer would be forced to testify against her client with respect to the same matter as to which she had been representing the client at the interview. In re Grand Jury Subpoena dated Oct. 22, 2001, Nos. 01-6250, 01-6251, 01-6252 (2d Cir.).[1]� The Second Circuit founded its decision on the fundamental policy considerations that underlie the work product doctrine and on its concern to protect the relationship between attorney and client, as well as the role of attorneys in our adversary system.
