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Between a Rock and a Hard Place: Grand Jury Subpoenas

Between a Rock and a Hard Place: Grand Jury Subpoenas

What happens if the City receives a grand jury subpoena with a secrecy clause or gag order? Can a Texas District Attorney prevent you from informing your client, or the city manager or the mayor or the city council? As a city attorney, who is your client? What duty do you owe your client as an attorney?

Asking for a friend.

The attorney-client relationship requires “absolute perfect candor, openness and honesty, and the absence of any concealment or deception.” As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts and material to the client’s representation. This is some strong language.

When it comes to grand juries, “[t]he policy reasons for secrecy are compelling,” Texas case law holds. But secrecy clauses in subpoenas from federal grand juries have no force of law.

Fed. R. Crim. P. Rule 6(e)(2)(A) says “no obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).” Federal courts have been pretty stringent on this, going so far as to compel letters be sent to subpoena recipients telling them that they are under no legal duty to keep the subpoena a secret, despite whatever the subpoena they received said. One judicial memo on the issue raised some interesting First Amendment issues with telling subpoena recipients that they cannot tell others simply that they have been subpoenaed.

Texas, however, does not have this provision in its Code of Criminal Procedure. Texas law merely provides in Tex. Code Crim. Pro. art. 20.02(h) that a “subpoena or summons relating to a grand jury proceeding or investigation must be kept secret to the extent and for as long as necessary to prevent the unauthorized disclosure of a matter before the grand jury.”

This, of course, begs the question: which disclosures are authorized, and which are not? Certainly, if you are subpoenaed, you are entitled to know about it. As a city attorney, your client is the City as represented by the City Council. The group is the client, not the individuals. You owe no duty to the individual council members because they are not your client.

Here, the “custodian of records” for the City is the one being subpoenaed. The City is our client, not the individual person. So, the question becomes: does subpoenaing the custodian of record for the city mean the city is being subpoenaed as well? Perhaps. It depends on whether the custodian of records is a “representative” of the larger entity.

To determine whether a person is a “representative” for purposes of attorney-client privilege, Texas Rule of Civil Evidence 503 clearly adopts the control group test. Under “control group test,” a person must be shown to either (1) have the authority to obtain professional legal services on behalf of the organization, or (2) to act on advice rendered pursuant to a request made under such authority. If the person in question would be a part of the group that controls the entity, their communications with the entity’s attorneys would typically be privileged and therefore able to be informed of the service of the subpoena.

Practically speaking, call the DA and explain the ethical dilemma the gag order in their subpoena is posing and get permission to tell at least the mayor. If not, then off to court you go in a secret proceeding to have the court order whether the city attorney may disclose any information to the control group so long as a member of the control group is not the subject of the subpoena. Of course, you cannot tell the client about the secret proceedings. Yikes!!

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Texas native J. Grady Randle concentrates his practice in the areas of real estate and municipal law in Houston and the surrounding counties. He represents government entities and local municipalities in litigation, regulation, land development, zoning, land use, and other matters. Mr. Randle also handles a wide variety of real estate transactional and litigation matters, including oil and gas contracts, large commercial land and building purchases, and commercial landlord-tenant issues. He received his Juris Doctorate as well as a Bachelor of Business Administration from Baylor University.

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