author: McWILLIAMS, Circuit Judge. BREITENSTEIN, Circuit Judge

text:
    LEE WAY MOTOR FREIGHT, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.
    No. 74-1236.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 15, 1974.
    Decided Feb. 19, 1975.

      Ben L. Burdick, Oklahoma City, Okl. (Charles W. Mooney, Jr., and Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., with him on the brief), for petitioner.
    Anthony J. Steinmeyer, Atty., Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., Dept, of Justice, and William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associated Sol. for Occupational Safety and Health, Michael H. Levin, Stephen C. Yohay, and Judith Burghardt, Attys., Dept, of Labor, of counsel, with him on the brief), for respondent.
    Before BREITEN STEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   McWILLIAMS, Circuit Judge.

This case arises under the Occupational Safety and Health Act of 1970, hereinafter referred to as the Act. 29 U.S.C. § 651 et seq. Lee Way Motor Freight filed in this court a petition to review an order of the Occupational Safety and Health Review Commission, which order held that Lee Way committed a nonserious violation of 29 U.S.C. § 654(a)(2) by violating the standard of 29 C.F.R. § 1910.22(c) (1972). Jurisdiction is based on 29 U.S.C. § 660. That statute provides, among other things, that the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. Or, as was said in Brennan v. Occupational Safety & Health Comm’n, 501 F.2d 1196 (7th Cir. 1974), “The Occupational Safety and Health Review Commission is presumed to have technical expertise and experience in the field of job safety [and] a court must, therefore, defer to the findings and analysis of the Commission unless such findings are without substantial basis in fact.”

The standard here involved states that “covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.” 29 C.F.R. § 1910.22(c) (1972). Our study of the instant record leads us to conclude that the finding of the Commission that Lee Way violated the aforesaid standard is supported by substantial evidence. And as a corollary of that finding, we also agree with the Commission that the standard in question does apply to Lee Way. Let us first examine the particular phase of Lee Way’s operation to which the Commission applied the standard.

Lee Way is a large interstate motor carrier and employs about 150 persons at its freight and terminal facility in Oklahoma City, Oklahoma. The terminal consists of a trailer shop, a wash rack building, and an inbound service department where tractor-trailer maintenance work is performed. We are here concerned with this vehicle maintenance area.

The service building contains four parallel traffic lanes which are separated by building supports, heating and ventilation ducts, trash barrels, and circular parts-storage trays. Within each lane is a vehicle maintenance pit which is 31 inches wide, 4 feet deep, and 100 feet long and is sufficiently long to accommodate two tractor-trailer rigs simultaneously. The distance between the maintenance pits is 19 feet, 5 inches.

Lee Way’s practice is for its drivers to park their incoming trucks about 100 feet from this service area, and for tractor mechanics to then, drive the trucks into position over the maintenance pits. Men then enter the pits by stairways on either end. Service on each truck takes approximately 20 minutes and is performed by teams of three men who work both in the pit and alongside it. The service work consists primarily of visual inspection underneath the truck, brake adjustments, oil and grease work, and minor repairs.

The service area is in operation 24 hours a day and has been closed only one day in the two years since it opened. The number of trucks serviced averages between 100 to 120 per day. The maximum capacity of the four service pits is eight trucks but rarely are there as many as seven trucks in the area at one time. Occasionally one or more of the service pits has not been in use, and therefore has been completely uncovered, for as long as two hours.

The concrete floor of the service area is painted with a nonskid paint. Occasionally, however, grease and oil are spilled on the floor near the edge of the pits. And in bad weather, snow, ice, or rain frequently drop from the trucks after they have been driven over the pits. In addition, a few tools may also be lying on the floor near the pits. In the course of their work, Lee Way employees routinely step over the 31-inch pits rather than walk around them.

A compliance officer from the Department of Labor inspected Lee Way’s terminal facility and as a result of such inspection cited Lee Way for 28 nonserious violations of the Act. One such citation was for not having covers or guardrails for the maintenance pits. The proposed penalty for this particular violation was $30. It should be noted that the Act provides for three grades of violations, depending upon the “level of gravity” of the particular violation. Those gradations are de minimis violations, on the one hand, then nonserious violations, and finally serious violations. 29 U.S.C. § 666.

Lee Way did not contest 24 of these citations, claiming that it remedied these particular situations after receiving the citations therefor. However, Lee Way did contest the remaining four citations, including the one relating to the installation of covers or guardrails for the maintenance pits. In this proceeding we are concerned only with this one citation.

A hearing was held before an administrative law judge, who vacated the citation here in question on the ground that the Secretary of Labor had failed to show that Lee Way’s open maintenance pits presented any safety hazard. On review, the Commission reversed the administrative law judge and reinstated the citation.

The Review Commission found that the standard in question did apply to Lee Way’s vehicle maintenance area, and that Lee Way was in violation thereof. The Review Commission also held that the Secretary was not required to show that a hazard existed in order to show noncompliance with the standard, since “the standard by its plain terms assumes the existence of a hazard with regard to open pits and does not require that a hazard be proven before noncompliance with its terms is established.” The Review Commission did find, however, that the violation in question had a direct and immediate relationship to occupational safety and health, since the lack of covers or guardrails exposed Lee Way’s employees to the “hazard” of tripping, slipping or falling into the open service pits. It was on this basis that the Review Commission determined that the violation was nonserious rather than de minimis. The vote of the Review Commission reversing the administrative law judge was two-to-one. The dissenting Commissioner, however, dissented on a ground that is not urged in this court.

As stated above, our study of the matter convinces us that the Review Commission was correct in its determination that the standard here involved did apply to Lee Way’s vehicle maintenance pits, and that there was a nonserious violation of such standard. Before looking at the standard here sought to be invoked against Lee Way, let us examine briefly the overall purpose of the Act.

The declared purpose and policy of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). See also Brennan v. Occupational Safety & Health Review Comm’n, 505 F.2d 869 (10th Cir. 1974). Accordingly, each employer shall comply with the occupational safety and health standards promulgated under the Act to the end that employees shall be furnished employment and a place of employment free from recognized hazards that cause or are likely to cause death or serious harm to such employees. 29 U.S.C. § 654(a). To carry out the Act’s purpose, the Secretary was required to promulgate as an occupational safety or health standard “any national consensus standard and any established Federal standard.” 29 U.S.C. § 655(a). Pursuant to this authority, the Secretary promulgated 29 C.F.R. § 1910.22(c) (1972), the regulation here involved. Let us now examine that standard in context.

This standard appears in the regulations under Subpart D, captioned “Walking-Working Surfaces,” and reads as follows:

“§ 1910.22 General requirements. This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. * * *
“(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.”

We shall first consider whether the aforesaid standard has application to Lee Way’s vehicle maintenance pits. Lee Way argues that a “pit is a pit” approach is too simplistic, and that the legislative history of this standard indicates the standard was not meant to be applied to vehicle maintenance pits. Thus, inquiry into such history is in order. A standard promulgated under the Walsh-Healey Act, namely, 41 C.F.R. § 50-204.3 (1970), would appear to be the forerunner of the standard with which we are here concerned, and that standard reads as follows:

“Material handling and storage “(g) Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.”

The Walsh-Healey Act of 1936 imposed safety and health standards on those holding government contracts for materials, supplies, articles or equipment in excess of $10,000. The Act seeks to impose safety and health standards on those engaged in interstate commerce, and hence has a much broader coverage than the Walsh-Healey Act. The Act itself refers to the Walsh-Healey Act and declares that standards promulgated under the Walsh-Healey Act shall be deemed to be occupational safety and health standards. 29 U.S.C. § 653(b)(2). Additionally, the Secretary of Labor was empowered to promulgate by rule as an occupational safety or health standard any national consensus standard, and any established federal standard. ' 29 U.S.C. § 655(a). Pursuant to this authority, the Secretary of Labor, acting on the premise that 41 C.F.R. § 50 — 204.3 (1970) was an established federal standard, promulgated the standard with which we are here concerned, namely, 29 C.F.R. § 1910.22(c) (1972).

The Act further provides that any interested party may file objections to a proposed standard, and provision is made for a temporary variance from a standard. 29 U.S.C. § 655(b). The record does not indicate that Lee Way objected to the standard when proposed, nor has it requested a variance. Rather, it is Lee Way’s basic position that the standard simply has no applicability to its vehicle maintenance pits. In this regard Lee Way points out that 41 C.F.R. § 50 — 204.3 (1970) was an established federal standard only insofar as it related to the handling and storage of materials, and that accordingly 29 C.F.R. § 1910.-22(c) (1972) is also subject to such limitation, notwithstanding the fact that such standard appears under a heading entitled “Subpart D-Walking-Working Surfaces.” In other words, as we understand it, Lee Way does not contend that it is totally immune from the standard of 29 C.F.R. § 1910.22(c) (1972), but rather that this standard applies only to such part of its operation as involves the handling and storage of material, and this does not include its inbound service department. We do not agree with this line of reasoning.

The established federal standard related to the necessity for either covering or providing guardrails for open pits. There is little doubt but that it was the legislative intent that the Secretary of Labor could promulgate by rule the standard now embodied in 29 C.F.R. § 1910.22(c) (1972). Congress itself adopted the Walsh-Healey standards as occupational safety and health standards of general application. 29 U.S.C. § 653(b)(2). And in our view the standard in question is not limited in its application to areas where there is a handling and storage of material, but it has applicability, as the standard itself provides, to “Walking-Working Surfaces.” Indeed the principal purpose to be served by adopting standards established under previous federal statutes as standards of the Act was to extend protection to many workers who had not been covered by previous standards.

Lee Way also contends that the standard does not apply to its vehicle maintenance pits for a variety of other reasons, none of which in our view has merit. For example, Lee Way suggests that we are not really concerned with a' “pit,” and hence the standard is inapplicable. In connection with this argument Lee Way states that actually the bottom of the vehicle maintenance pit is itself the only working surface, and that the rest of the service area constitutes a “platform.” Hence, says Lee Way, the standard on “platforms,” and not “pits,” is the proper one. This line of reasoning is to us most tenuous and unrealistic. In any event, it is sufficient to state that there is substantial evidence in the record to support the Review Commission’s finding that we are here dealing with a “pit,” and not a “platform.”

Lee Way then contends that if the service maintenance pit be a “pit,” it is not an “open pit,” as is mentioned in 29 C.F.R. § 1910.22(c) (1972). This argument is based on the fact that only vehicle maintenance personnel are allowed in the service maintenance area, and outsiders are kept out of this particular building. We believe this argument is also without merit. The purpose of the standard is of course to protect the employees who are working in the area, not those who are barred from the area. They need no protection. And the standard itself suggests that a “pit” is an “open pit” unless there be appropriate cover or guardrails. Without further consideration of the wide variety of reasons here advanced by Lee Way as to why the standard should not be applied to its vehicle maintenance pits, we would simply state that none of them has merit, and that we agree with the conclusion of the Review Commission that the standard applies.

Lee Way next argues that there can be no violation of the standard unless a hazard has been proved by the Secretary, and that none was proved. In fact, asserts Lee Way, its evidence that there had been no accidents since the pits were installed some two years ago showed that there was no hazard.

The Secretary contends, and the Review Commission so held, that a hazard, as such, need not be shown in order to show noncompliance with this particular standard. The standard presupposes the obvious, namely, that an open unguarded pit necessarily presents the hazard that someone may fall into it. We agree. However, it is conceded that a mere noncompliance which has no direct or immediate relationship to safety or health is only a de minimis violation, which permits the Secretary to issue a notice, but not a citation. 29 U.S.C. § 658(a). So, in order to warrant the issuance of a citation based on a nonserious violation, as in the present case, there must be a showing that the noncompliance with the standard had a direct and immediate relationship to the employees’ safety and health. In this connection, as mentioned above, the Review Commission did find such relationship and determined that the hazard of someone tripping, slipping, or falling into the open service pit had a direct connection to employees’ safety. In our view the record permits the drawing of such an inference, even though no one has yet fallen. One purpose of the Act is to prevent the first accident. In this regard, see Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, at 233 (5th Cir. 1974), where the following pertinent language appears:

“The legislative history of the statute reveals that its declared purpose is ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.’ 29 U.S.C. § 651(b). It is noteworthy that the Act does not establish as a sine qua non any specific number of accidents or any injury rate. Hence, Ryder’s reliance on ‘only 10 injuries in five years’ is misplaced. Moreover, the Act specifically encompasses non-serious violations, i. e., violations which do not create a substantial probability of serious physical harm. 29 U.S.C. § 666(g)(j). Avoidance of minor injuries, as well as of major ones, was intended to be within the purview of this liberal Act.”

The fact that Lee Way had a favorable accident record may properly be considered, as it was, in determining the gravity of the violation and the appropriate sanction therefor. In the instant case, Lee Way’s good record was reflected in the fact that it was cited for only a nonserious violation, as opposed to a serious violation, and with a recommended penalty of only $30.

In determining that the cover or guardrail standard applies to Lee Way’s vehicle maintenance pits, it is not our function to specify what type of cover or guardrail is most appropriate. That is where the Commission’s expertise comes into play. We need only find, as we do, that such protective device is sufficient to eliminate the existing hazard and is, therefore, required.

The Commission’s order is affirmed.

BREITENSTEIN, Circuit Judge

(dissenting).

I dissent. The regulation, 29 CFR 1910.22(c), says that “covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.” We are concerned with a maintenance pit for servicing a fleet of tractors-trailers. Nothing in the regulation, or in the history behind the regulation, equates “maintenance pit” with “open pit.” Maintenance pits are included in the regulation, if at all, by the “etc.”, a symbol of doubtful significance. I suggest that if the regulation is to apply to maintenance pits, it should specifically mention them.

The Law Judge found:

“4. The Respondent in its specially constructed inbound inspection area operated four unguarded lubrication, inspection and safety pits, which presented low level of gravity type hazards and where no personal injuries attributed to the unguarded pits were reported during its two years of existence.
5. There was no showing by the evidence of a general condition, industry-wide, of lost time accidents directly related to this specific type of operation.”

The Law Judge concluded:

“4. The complainant has failed to sustain the burden of proof that failure to provide covers or guardrails around the four lubrication, inspection and safety pits in the inbound inspection area by the Respondent was a violation of standard 29 CFR 1910.-22(c) item 4 of the amended citation issued June 16, 1972.”

Review of the Law Judge’s decision was heard by a panel of three Commissioners, one of whom, the Chairman of the Commission, said in dissent:

“Considering the overall conditions existing in the respondent’s workplace, the area director who issued the citation concluded that the only feasible way for the respondent to comply with the standard was to use nylon cable. Since the standard does not require nylon cable and the use of the protective measures enumerated in the standard would have severely disrupted the respondent’s work, it is improper to affirm the violation.” Citations omitted.

To this I would add that expert evidence theorized that the use of nylon cable would create hazards not presently existing.

The dissenting Commission Chairman also said:

“What a standard assumes is irrelevant because the mere fact that the provisions of a standard have not been followed is not enough to establish a violation of the Act. There is no violation unless the evidence establishes that the respondent’s employees were actually exposed to an unsafe working condition by the failure to comply with the standard.” Citations omitted.

I agree with the Law Judge and with the dissenting Chairman of the Commission.


source: Caselaw Access Project

author: ALDRICH, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ralston Douglas George NUNES, Defendant-Appellant.
    No. 74-1013.
    United States Court of Appeals, First Circuit.
    Argued Feb. 4, 1975.
    Decided Feb. 21, 1975.

      Daniel R. Dominguez, by appointment of the court, with whom Laffitte & Dominguez, Hato Rey, P. R., was on brief, for appellant.
    Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief, for appellee.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

Defendant Nunes, a Jamaican, was indicted and charged with “knowingly and intentionally importing” into Puerto Rico from the Republic of Jamaica 375 pounds of marihuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(2). A second count, charging possession with intent to dispose, 21 U.S.C. §§ 841(a)(1) and 841(b) (1)(B), was dismissed while the jury was deliberating because of a defect in draftsmanship. He was found guilty of importing, and now appeals.

Our initial concern is with the court’s denial of a motion to suppress evidence, viz., the marihuana taken by Customs agents from a plane in which defendant was sitting as co-pilot at the San Juan International Airport. Defendant, who was the principal witness at thé hearing on the motion, testified that he accepted an offer from his friend Benjamin to accompany him as co-pilot in a small plane on a flight from Jamaica to Beef Island, British Virgin Islands; that he accepted because he wished the flying experience; that after the flight had started he asked Benjamin what was in four large suitcases; that Benjamin told him it was marihuana; that they stopped in the Dominican Republic for gasoline; that the plane was equipped only for visual flight; that thereafter they ran into heavy rain and got lost because of lack of visibility; that they found themselves passing San Juan International Airport, where they received radio instructions for Beef Island, but then discovered that because of having been off course they were almost out of fuel; that they asked and received permission to make an emergency landing; that on landing they were asked if they “were needing Customs services,” to which they replied that they were en route to Beef Island; that they paid a landing fee and moved to a fuel area; that when the plane was about to be refuelled and both parties were still aboard, a Customs agent arrived and stated, “All planes, according to regulations, landing in Puerto Rico, are subject to search,” and then, after they had fueled, proceeded to do so, finding the marihuana.

In denying the motion to suppress the district court stated that it was not resolving any contradictions in the evidence because on no theory could the motion be allowed. Actually, we are not clear what contradictions there were. So far as there were any airport records, they confirmed the fact that there was a heavy rain, and that the plane had requested to land for fuel, and was in substantial need of it. And at the subsequent trial the Customs agent himself testified that he was told the landing was only for fuel, and that he replied “that every plane coming from a foreign country . . . must go to Customs and make a declaration.” It is clear, in other words, that Benjamin and defendant were not told that because they were landing in distress they were entitled to special treatment.

In support of his motion to suppress, defendant cited 19 U.S.C. § 1441(4) which provides as follows:

§ 1441. Vessels not required to enter
The following vessels shall not be required to make entry at the customhouse:
“(4) Vessels arriving in distress or for the purpose of taking on bunker coal, bunker oil, sea stores, or ship’s stores and which shall depart within twenty-four hours after arrival without having landed or taken on board any passengers, or any merchandise other than bunker coal, bunker oil, sea stores, or ship’s stores: Provided, That the master, owner, or agent of such vessel shall report under oath to the collector the hour and date of arrival and departure and the quantity of bunker coal, bunker oil, sea stores, or ship’s stores taken on board.”

The district court held it inapplicable because of the paramount authority of section 1581(a).

“§ 1581. Boarding vessels

(a). Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under sections 1701 and 1703 — 1711 of this title, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.”

This was wrong. Section 1441(4) would be meaningless unless it is an exception to the general provisions of section 1581(a). The court was correct when it said that this section was based upon the “broad grant of inspection and search powers . . . to be found in 19 U.S.C. § 482,” but it failed to note that section 482 is expressly limited to searching for “merchandise which is subject to duty, and shall have been introduced into the United States in any manner contrary to law.” Secondly, in citing only section 1581(a), and not noting section 1581(e), it failed to recognize that section 1581, also, is for the purpose of determining whether there has been a violation of the laws of the United States. If a vessel has qualified under section 1441(4) it has not violated the customs laws. Correspondingly, there was no requirement that it make a declaration. If, by searching, it could then be concluded as a result of the search that the cargo had been unlawfully “imported,” section 1441(4) would be written off the books.

There is, however, a further difficulty, but before reaching it we mention our case of Leiser v. United States, 1 Cir., 1956, 234 F.2d 648, cert. denied, 352 U.S. 893, 77 S.Ct. 133, 1 L.Ed.2d 87, which appears to have escaped attention. In that case we drew a distinction between search of an individual, who could be required to declare his personal baggage even though arriving as a result of distress, and the plane and its cargo. In the case at bar the government, in response to a question from the court, agreed during argument, quite properly, that the 375 pounds of marihuana was not baggage. Clearly it was cargo. Moreover, even in Leiser, the penalty for non-declaration was forfeiture, not jail.

The further matter that seems to have escaped attention is that as used in sections 1441(4) and 1581 the word “vessel” does not include aircraft, 19 U.S.C. § 1401(a), and “vehicle,” used in section 1581, does not, either. 19 U.S.C. § 1401(b). In terms, therefore, neither statute was applicable to this case. Nor does a search of the Code reveal any statutes that are directly relevant, either from defendant’s standpoint, or the government’s. In these circumstances we discover that, in reliance upon 19 U.S.C. §§ 66 and 1624, the Secretary has issued a complete set of regulations for aircraft paralleling, with appropriate changes, the statutory provisions relating to vessels and vehicles. 19 C.F.R. Ch. 1, Part 6 — Air Commerce Regulations. Section 6.3(g) thereof, entitled “Emergency or forced landing” is an extensive provision. While its terms do not track section 1441(4), for two reasons we must construe them broadly in pari materia. In the first place, the Secretary. does not have power under sections 66 and 1624 to issue regulations inconsistent with the general precepts and tenor of the enacted legislation. United States v. Sullivan, 5 Cir., 1928, 26 F.2d 606. But, more important, section 1441(4) is not an act of governmental munificence. Rather, in making a hands-off provision for emergency landings it recognizes fundamental principles of international law. See The Brig Concord, 1815, 9 Cranch 387, 3 L.Ed. 768; The Mary, CC Mass. 1812, 16 Fed.Cas. p. 932, No. 9, 183; cf. United States v. Sullivan, ante. Although the district court looked to section 1441(4) and should have looked to 19 C.F.R. § 6.3, ante, the result should have been the same. The Customs officials had no right to demand a declaration of cargo, much less to search and seize, so long as the plane was landing no cargo or passengers and was pursuing its emergency refueling and its announced intention to depart abroad.

We can only express our regret that this defendant has apparently, for want of bail, been incarcerated for 22 months. Mandate ordering acquittal directed forthwith. We may hope that if Benjamin is still in custody, or the plane and cargo were confiscated, that such correction as is now possible will be promptly effected.

      . The pilot, one Benjamin, was also indicted, but found not mentally fit to stand trial

      . The court, properly, did not rely upon Benjamin’s failure to file the formal notification contained in section 1441(4)’s proviso. Benjamin did make an oral report to the Customs officer, and the minimum duty the officer owed a very possibly ignorant alien in the circumstances was to tell him it was required to be made more formally, rather than simply to proceed in disregard of his substantive rights.

      . We are talking only in terms of a border search for violation of the Customs laws, either as to duty, or unlawful importation. If, supported by a showing of probable cause, and not by the mere “suspicion” test that Customs officers are accustomed to, there were grounds to believe that some other law was being violated, a search may be warranted, subject to the usual conditions. See also section 1581(b). What the Customs officers did here was precisely wrong. They demanded a declaration, which they had no right to do, and then used the occupants’ “nervousness” as a reason for a search. This is reminiscent of Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

      . It is not clear that even Leiser would have applied to this defendant, who had not yet disembarked.

      . “§ 66. Rules and forms prescribed by Secretary

      The Secretary of the Treasury shall prescribe forms of entries, oaths, bonds, and other papers, and rules and regulations not inconsistent with law, to be used in carrying out the provisions of law relating to raising revenue from imports, or to duties on imports, or to warehousing, and shall give such directions to customs officers and prescribe such rules and forms to be observed by them as may be necessary for the proper execution of the law.”
      “§ 1624. General regulations

      In addition to the specific powers conferred by this chapter the Secretary of the Treasury is authorized to make such rules and regulations as may be necessary to carry out the provisions of this chapter.”


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Paul Wm. POLIN and Marsha Polin, Plaintiffs-Appellants, v. DUN & BRADSTREET, INC., a Delaware Corporation, Defendant-Appellee.
    No. 74-1375.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 22, 1975.
    Decided Feb. 20, 1975.
    Rehearing Denied March 19, 1975.

      Robert Lee Blackwood, Tulsa, Okl. (Don E. Gasaway, R. James Unruh and Charles A. Whitebook, Tulsa, Okl., on the brief), for plaintiffs-appellants.
    John Kinslow of Hastie, Kirschner & Kinslow, Oklahoma City, Okl., and Arthur E. Rubin of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendant-appellee.
    Before BREITEN STEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

The judgment in this case was entered pursuant to the granting of the defendant’s motion for summary judgment based on the trial court’s conclusion that the entire action was barred by the applicable statute of limitations. A corollary ruling was that plaintiff was not entitled to amend the complaint to add a later transaction. The court reasoned that this latter claim was also barred by the statute of limitations. Thus, we must review, first, the ruling that plaintiff was not entitled to amend and, secondly, whether the statute of limitations had run on one or all of the transactions described in the original and amended complaints.

The injury complained of is invasion of right of privacy. The allegation is that the defendant credit information agency communicated misleading information concerning plaintiffs’ morals and character in violation of plaintiffs’ rights under the common law and the Oklahoma statutes — also the Constitution of the United States.

The complaint was by leave of court amended twice. First, on December 7, 1970 and again on November 29, 1971. The original complaint and the amended ones were concerned with alleged misleading credit reports dated November 25, 1966 and January. 16, 1968. However, the second amended complaint which was filed December 7, 1970 described a third publication substantially similar to the first two which was disseminated on February 12, 1969. The court on motion of defendant struck all reference to the February 12, 1969 publication saying that it was barred by the applicable Oklahoma statute of limitations.

In its order entered February 26, 1974, the trial court granted summary judgment which applied the Oklahoma two-year statute of limitations which apparently pertained to tort actions. There is reason to believe that the trial court applied a less than two-year statute when it struck the February 12, 1969 transaction.

I.

We are of the opinion that the ruling of the court denying leave to amend was erroneous and clearly so on the basis given which was that the statute of limitations had then run. Plainly, this incident was within the two-year statute of limitations. This count of the complaint was first filed on December 7, 1970 which was well within the two-year statute. Thus, the reason given that it was barred by the statute is not a valid one.

We recognize fully that the trial court has discretion in the granting or the denial of leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure. The law is equally clear, however, that leave to amend is to be freely granted.

Based, then, on the fact that the court acted under a mistaken impression that the statute had run, we must rule that the amendment to show the February 12, 1969 publication ought to have been allowed,

II.

As our comments above would indicate, we are of the opinion that the court was correct in its holding that the Oklahoma two-year statute which pertains to tort actions was applicable, but the two-year statute would necessarily apply to all of the transactions since they are not distinguishable. There could be no basis for applying one statute to two of the publications and one which provided for a lesser period of limitation to the third.

Our ruling here is not to be construed as a direction to the trial court to consider the publication of February 12, 1969 only and not to take into account the earlier publications, for it is arguable • that the defendant’s conduct (if it constitutes an invasion of the plaintiffs’ right) was continuing in its nature and character. Hence, the damages flowing from the defendant’s conduct would under such a theory not fully accrue until the final publication.

Defendant has argued other issues including whether the Oklahoma statute pertaining to the furnishing of financial ratings to merchants creates an independent right of action. Since the trial court has not come to grips with this, we withhold comment on it.

The judgment of the district court is reversed and the cause is remanded for further proceedings.

      . The Oklahoma statutes which are invoked are as follows:
      24 Okl.Stat.Ann. § 81 (1961): Any person, firm or corporation engaged in or purporting to furnish retail merchants the financial or credit rating of any person who is the actual or prospective customer of such retail merchant shall, before furnishing such rating, submit, either in person or by mailing to his last known postoffice address to the person whose rating is about to be reported, a request asking for a statement of the assets and liabilities of such person. 24 Okl.Stat.Ann. § 82 (1961): Whenever an opinion in writing upon the financial or credit standing of any person is about to be submitted for the purpose of establishing a financial or credit rating of customers, to be used by the retail business concerns, the person, firm or corporation submitting such opinion shall first mail a copy of such opinion to the person about whom the opinion is given, at his proper postoffice address.

      . Third. Within two (2) years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. (Emphasis added.)
      12 Okl.Stat.Ann. § 95 (Supp.1974).

      . Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Reid v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 479 F.2d 517 (10th Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 572, 38 L.Ed.2d 483 (1973); Cox v. Fremont County Public Building Authority, 415 F.2d 882 (10th Cir. 1969); Travelers Indemnity Co. v. United States, 382 F.2d 103 (10th Cir. 1967); Landon v. Northern Natural Gas Co., 338 F.2d 17 (10th Cir. 1964); Wyoming Constr. Co. v. Western Cas. & Surety Co., 275 F.2d 97 (10th Cir.), cert. denied, 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011 (1960); Ziegler v. Akin, 261 F.2d 88 (10th Cir. 1958); Arp v. United States, 244 F.2d 571 (10th Cir.), cert. denied, 355 U.S. 826, 78 S.Ct. 34, 2 L.Ed.2d 40 (1957).

      . Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Aalco Construction Co. v. F. H. Linneman Construction Co., 399 F.2d 516 (10th Cir. 1968); Food Basket, Inc. v. Albertsons, Inc., 383 F.2d 785 (10th Cir. 1967); Travelers Indemnity Co. v. United States, 382 F.2d 103 (10th Cir. 1967); Ziegler v. Akin, 261 F.2d 88 (10th Cir. 1958).
      In Foman v. Davis, supra, the Supreme Court said:
      In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
      371 U.S. at 182, 83 S.Ct. at 230.

      . See Town of Braggs v. Slape, 207 Okl. 420, 250 P.2d 214 (1952); Big Four Foundry Co. v. Hagens, 197 Okl. 409, 172 P.2d 322 (1946); Commercial Drilling Co. v. Kennedy, 172 Okl. 475, 45 P.2d 534 (1935); New England Oil & Pipe Co. v. Rogers, 154 Okl. 285, 7 P.2d 638 (1932). See also Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973); Hotelling v. Walther, 169 Or. 559, 130 P.2d 944 (1942); Sadowski v. Long Island R. Co., 292 N.Y. 448, 55 N.E.2d 497 (1944); Steiner v. Spencer, 24 Tenn.App. 389, 145 S.W.2d 547 (1940); Hughes v. Eureka Flint & Spar Co., 20 N.J. Misc. 314, 26 A.2d 567 (1939).

      . Cf. Hazlitt v. Fawcett Publications, Inc., 116 F.Supp. 538 (D.Conn.1953); Lyles v. State, 330 P.2d 734 (Okl.Cr.1958).


author: MARIS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Richard Eugene LONG, Defendant-Appellee.
    No. 74-1172.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 8, 1974.
    Decided Feb. 26, 1975.
    Rehearing Denied June 6, 1975.

      Henry A. Schwarz, U. S. Atty., William C. Evers, III, Asst. U. S. Atty., E. St. Louis, 111., for plaintiff-appellant.
    Jerome J. Sehlichter, E. St. Louis, 111., for defendant-appellee.
    Before MARIS, HASTINGS and TONE, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   MARIS, Circuit Judge.

The Government has taken this appeal from an order of the district court dismissing an indictment charging the defendant, Richard Eugene Long, with knowing possession of a sawed-off shotgun not registered in the National Firearm Registration and Transfer Record and not identified by a serial number, in violation of section 5861(d) and (i) of the Internal Revenue Code of 1954, as amended by the Gun Control Act of 1968. 26 U.S.C.A. § 5861(d) and (i).

The facts disclosed by the record are that on January 26, 1973 the defendant was arrested for alleged narcotics and firearms violations by agents of the Illinois Bureau of Investigation, herein referred to as IBI, who then filed charges against him for the state narcotics violations only. The defendant was held in state custody in the St. Clair County jail in Belleville, Illinois. Several days thereafter, the defendant’s father, Herbert E. Long, presently and for the past 17 years a patrolman employed by the Herrin, Illinois Police Department, and the defendant’s brother, Danny Ray Long, met with Ronald Grimming, a special agent of the IBI at the IBI office in Belleville to request permission to see the defendant and to inquire into the charges against him. At this meeting Herbert and Danny Long and Grimming arrived at an agreement, subject to the defendant’s acquiescence, which the Longs then communicated to the defendant in the county jail. Later, in the presence of his brother and father, Grimming, another IBI agent, and Lieutenant Robert Vergess, Chief Investigator of the St. Clair County Sheriff’s Office, the defendant assented to the deal, the terms of which were, however, not stated at that time. There immediately followed an interview of approximately two hours in which the defendant answered all questions put to him. In the next few weeks the defendant supplied information by telephone to the sheriff’s office at the county jail or to Grimming in the IBI office. Subsequently, the defendant was indicted on the state drug offense and the trial is presently pending in the state court.

On August 21, 1973 a federal grand jury handed down an indictment against the defendant for the firearms violations. The defendant filed a motion in the district court to dismiss the indictment as contrary to a grant of immunity and requested a hearing to determine whether a promise had been made and, if so, its scope. The district court granted the defendant’s request for a hearing at which it received conflicting testimony concerning the substance of Grimming’s promise, the kind of cooperation required of Long and the extent of Long’s cooperation following the agreement. The defendant testified that he cooperated fully, telling all he knew. Herbert and Danny Long testified that Grimming, after stating to them that he was in a position to file state and federal charges against the defendant for firearms violations, would instead keep the defendant’s sawed-off shotgun, which he then held, locked up in his safe, that no gun charge would ever be made and that the defendant would receive probation for any conviction on the drug charge if he would tell all he knew. Grimming admitted on cross examination that, in fact, he did keep the sawed-off shotgun in his safe until he turned it over to the federal authorities in the spring of 1973; however, Grimming insisted that he agreed only to make a recommendation to and advise the state and United States attorneys of the defendant’s cooperation and that, in any event, the answers given by the defendant were evasive or untrue, that mere oral conversation is not “full cooperation”, and that, in fact, the defendant did not cooperate and Grimming did not make the recommendations. Grimming further stated that he did not gain any essential information from Long related to his possession of the shotgun following the agreement made with Long at the county jail. The district court made the finding on the basis of the evidentiary hearing that “there did exist an agreement between the Defendant and IBI agent Grimming that the Defendant would not be prosecuted for any firearms violation if he cooperated and told what he knew regarding narcotics violations . . . ”, which cooperation, the court found, the defendant had given. The court concluded that it could properly dismiss the federal indictment which resulted from the breach of the state agent’s promise on the grounds of fundamental fairness to the defendant and because, as the court expressed it, “IBI agents who investigate, arrest, and charge a Defendant with a federal violation are in a functional sense, and in the eyes of the accused, agents of the United States.” The district court accordingly dismissed the indictment and this appeal by the Government followed. The issue primarily presented by the appeal is whether such an agency relationship existed or may be deemed to have existed between IBI agent Grimming and the United States Government as to give state agent Grimming the power to bind the federal government to keep the promise allegedly made by Grimming to the defendant while he was being held in state custody. In our consideration of this issue we are not indifferent to the fundamentally fair treatment which is the defendant’s due; however, unless an agency relationship may be deemed under the facts of the case and the established law to have existed, the federal government cannot be held bound by the bargain alleged to have been made by the state agent, regardless of whether or not such a bargain was in fact made by the state officer.

At the outset we note that the district court offered no jurisprudential support for its conclusion that, absent an actual or apparent agency authorization, legal responsibility as principal may be imposed on the federal government for the actions of the state IBI agent.

Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, on which the district court relied, is not applicable to this issue nor to the case generally. Santobello involved an intrastate controversy which the Supreme Court remanded to the state court either to re-sentence before a different judge or to allow the defendant to withdraw his guilty plea. The facts were that the prosecuting attorney failed to carry out a promise made by his predecessor to the defendant not to make a recommendation as to sentence to the judge. The basis of the Court’s decision was threefold. First, that plea bargaining which is a desirable and essential component of the prompt and efficient administration of justice should be encouraged. Second, that the process must be attended by safeguards in recognition of the duties of the prosecution and to ensure to the defendant what is reasonably due him under the circumstances, and that where a promise is a significant part of an inducement to plead guilty the promise must be fulfilled. Third, that there is an adjudicative element inherent in the acceptance or rejection of a plea of guilty.

The district court also relied on United States v. Carter, 4 Cir. 1972, 454 F.2d 426, cert. den. 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 and United States v. Paiva, D.D.C.1969, 294 F.Supp. 742, in which cases the courts enforced unauthorized promises by dismissing federal indictments brought against the persons to whom the promises were made. The promises, in both cases, were part of the plea bargaining process resulting from which both defendants entered guilty pleas. More importantly, the cases involved only federal government agents. In United States v. Carter, supra, 454 F.2d at 428, the court, which enforced the promise made by an Assistant United States Attorney in one district not to bring certain charges by dismissing those charges when they were brought by the United States Attorney in another district, expressly relied on the fact that the principal of each agent was the same United States Government.

United States v. McDaniel, 8 Cir. 1971, 449 F.2d 832, cert. den. 405 U.S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460, cited by the defendant, does not support the district court’s decision here. In that case the federal court authorized dismissal of federal charges brought against the defendant if it could be established that the United States Attorney bringing the federal charges had requested and received a copy of the transcript of state grand jury proceedings wherein the defendant had testified under a state grant of immunity. The court stated that the rule of Murphy v. Waterfront Commission of New York Harbor, 1964, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, controlled the disposition of the case. Ordinarily, therefore, under the rule of that case, the federal government would not be permitted to use the testimony compelled under the state grant of immunity as to matters relating to the federal prosecution. See as to such use immunity Kastigar v. United States, 1972, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. In the McDaniel case the court held that under the defendant’s allegations, if proved, there would be a prima facie “use” by the United States Attorney of the state compelled testimony and that this would be misconduct on his part which would call for the dismissal of the federal indictment. Such misconduct by the federal prosecutor would seem clearly to run afoul of the rules for the administration of criminal justice in the federal courts laid down by the Supreme Court in the exercise of its supervisory powers. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. It will be observed that in the McDaniel case no agency relationship, such as is alleged here, was involved in the case but merely misconduct on the part of the federal prosecution. Here there is no evidence that the federal authorities authorized or even knew of the agreement between the defendant and agent Grimming and the district court made no such finding.

As we have indicated, the district court cited no precedent, and we have not found any, justifying the imposition upon the federal government of an agency relationship with the state agent in this case. The failure of the United States Attorney to carry out the agreement between the state agent and the defendant accordingly did not justify the dismissal on that ground of the federal indictment. For, as we have said, the existence of an agency relationship was essential to support the action of the district court here. In Newman v. United States, 9 Cir. 1928, 28 F.2d 681, 682, cert. den. sub nom. Boyd v. United States, 279 U.S. 839, 49 S.Ct. 253, 73 L.Ed. 986, the court said: “The government is not bound by acts of persons who never have been, or in fact have ceased to be, its agents.” This remains horn book law. Here, as we have indicated, the defendant wholly failed to show an agency relationship between IBI agent Grimming, who is employed and paid by the State of Illinois, and the federal government, or even that the federal government was aware of the defendant’s alleged agreement with Grimming. We, therefore, need not consider whether the evidence supports the finding that the agreement described by the district court was in fact made by agent Grimming. We need only point out that responsibility on the part of the federal government for the agreement, if it was made, was not established by the fact, of which the district court took judicial notice, that “state IBI agents frequently are called upon to testify for the United States in federal criminal prosecutions” or by the fact that state agent Grimming arrested the defendant for offenses which could be prosecuted under either state or federal law. While, as the district court said, an IBI agent who investigates, arrests and charges a defendant with an offense which may be prosecuted federally may well be regarded by, the accused as an agent of the United States, the federal government may not be held responsible for his agreement when no agency relationship in fact exists and the Government has no actual knowledge of the agreement.

Reversed and remanded with directions to reinstate the indictment.


author: BARNES, Circuit Judge:

text:
    In re Grand Jury Appearance of Alvin S. MICHAELSON, Esquire.
    No. 74-3409.
    United States Court of Appeals, Ninth Circuit.
    Jan. 22, 1975.
    Certiorari Denied May 19, 1975.
    See 95 S.Ct. 1979.

      Barry Tarlow (argued), Los Angeles, Cal., for appellant.
    James T. Duff, Sp. Atty., Dept, of Justice (argued), Reno, Nev., for appellee.
    Before BARNES, MERRILL and DUNIWAY, Circuit Judges.
   OPINION

BARNES, Circuit Judge:

I. Prior Proceedings

This is an appeal from an order of the district court dated December 5, 1974, adjudging appellant, an attorney, in civil contempt and ordering him confined due to his refusal to answer questions before a grand jury after immunity had been granted to him and to his client under § 201(a) of the Organized Crime Control Act of 1970, 18 U.S.C. § 6002 et seq. Appellant is presently at liberty on bail.

The contempt order was entered pursuant to § 301(a) of the aforementioned Act, 28 U.S.C. § 1826.

In that 28 U.S.C. § 1826 requires that an appeal taken from such a contempt order be disposed of by this Court not later than 30 days from its filing (in the instant case, by Monday, January 6th, 1975 (January 4th being a Saturday), see Rule 6(a) Federal Rules of Civil Procedure), this panel on January 6th, 1975 filed an unpublished per curiam memorandum affirming the order of the district court. Judges Barnes and Duniway joined in that memorandum and Judge Merrill reserved the right to file a dissent when the full opinion is published.

In addition to our affirmance of the district court’s order, our memorandum of January 6th held:

“Due to the time limitations imposed upon us by § 1826, this Court cannot consider any petitions for rehearing or consideration en banc, and no such petitions will be entertained. See Charleston v. United States, 444 F.2d 504 (9th Cir. 1971); Bacon v. United States, 446 F.2d 667 (9th Cir. 1971).
“This case will be remanded forthwith to the district court to revoke bail and order Mr. Michaelson into confinement.
“However, as counsel for appellant has suggested to us, that in the event of affirmance they may apply for a writ of certiorari, issuance of the mandate is stayed thirty days to enable appellant to apply for a writ of certiorari. If a timely application for such a writ is filed, the stay shall remain in effect until the application has been denied, or, if granted, until the cause has been determined by the Supreme Court. Weg v. United States, 450 F.2d 340 (9th Cir. 1971); Bacon, supra [446 F.2d] at 669; Charleston, supra [444 F.2d] at 506.”

Our memorandum also bore a notation that an opinion setting forth in greater detail our reasons for affirmance would be issued in due course as has been the practice of this Circuit. See Stewart v. United States, 440 F.2d 954 (9th Cir. 1971), aff’d sub nom., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

This now is that opinion.

II. Statement of Facts

Alvin S. Michaelson, Esq., an attorney at law, appeals from an order made by the Honorable Bruce R. Thompson, a district judge of the District of Nevada, dated December 5th, 1974, holding said Michaelson in civil contempt of court for his wilful disobedience of a previous order of the same court, dated October 17, 1974, which denied Michaelson’s motion to quash his subpoena, and ordered said Michaelson to give testimony before a United States Grand Jury “respecting unprivileged communications with his client, Brenda Marie Sibson.”

This was after Miss Sibson had been granted use immunity under 18 U.S.C. § 6002 et seq., when she refused to answer certain questions before the same grand jury.

Michaelson appeared before the grand jury on December 4th, 1974, and refused to answer certain questions propounded by government counsel.

Later on that same day, Michaelson was taken before Judge Thompson who ordered that the secrecy of the grand jury proceedings be lifted, insofar as the testimony of Mr. Michaelson was concerned. Such testimony, read by the grand jury short-hand reporter, disclosed the following questions had been asked of Mr. Michaelson after he had been advised of the nature of the grand jury inquiry, and had known he had been ordered “to give testimony concerning certain fee arrangements between [himself] and Miss Brenda Sibson, and [was] to testify to those matters and any matters, which [were] not subject to the attorney-client privilege.” (R.T. Vol. IV, p. 11, line 14 to p. 12, line 7).

The questions which Mr. Michaelson refused to answer and which he was ordered to answer, were these (R.T. Vol. Ill, pp. 8-9):

l. Q. Did anyone refer Miss Sibson to you?

2. Q. Did you discuss a fee arrangement with Miss Sibson?

3. Q. Did any other individual besides Miss Sibson ever discuss with you a fee arrangement for your representation of Miss Sibson?

4. Q. What is your fee arrangement with Miss Sibson?

5. Q. How much money have you received from Miss Sibson?

6. Q. Have you received any money from any other person besides Miss Sibson to represent. Miss Sibson?

7. Q. Have you received any funds from Miss Sibson?

8. Q. Have you made arrangements with Miss Sibson to pay your expenses?

9. Q. Have you made an arrangement with any other person besides Miss Sibson for the payment of your expenses to represent her?

Judge Thompson rejected appellant’s counsel’s arguments that the information sought to be elicited by the questions was privileged under any of the grounds which appellant asserts, granted Michaelson use immunity, and again ordered him to answer the questions.

On December 5th, 1974, Mr. Michael-son again refused to answer the same questions; and Judge Thompson thereupon held Mr. Michaelson in contempt, and pursuant to the provisions of 28 U.S.C. § 1826 ordered him confined until he answered the questions, or until the term of the grand jury had expired. (C.T. 40-41). Mr. Michaelson filed this appeal, and was thereafter released on bail.

We first note that no objection was made to the form of the questions, or to their relevance to the grand jury investigation.

The sole question then before us is whether the information sought is privileged. Judge Thompson held it was not.

Mr. Michaelson urges that the information sought is privileged under one or more of the following reasons:

1. The First Amendment right of freedom of association.

2. The Fourth Amendment right of privacy.

3. The Fifth Amendment, raised on behalf of Miss Sibson.

4. The Sixth Amendment right to effective counsel (alleging that forcing him to answer to the above questions would have a “chilling effect” on the attorney-client relationship).

5. The American Bar Association Code of Professional Responsibility.

6. The State of California Business and Professions Code, § 6068(e) and (h).

7. People v. Canfield, 12 Cal.3d 699, 117 Cal.Rptr. 81, 527 P.2d 633 (1974).

8. The attorney-client privilege.

III. Appellant’s claims of privilege lack merit

Several of Mr. Michaelson’s positions are answered adversely to him by this Court’s decision in United States v. Cromer, 483 F.2d 99 (9th Cir. 1973):

“Cromer [an attorney] next claims that he need not respond to the summons due to the attorney-client privilege. ■ The summons in question required Cromer to testify as to the amounts owed to him by Bell and Brooks [Cromer’s clients] on certain dates, the identification of payments by case file name, the general purpose of the legal work and whether it was performed for Brooks or Bell.
“[6, 7] The nature and existence of the privilege are determined by Nevada law. Baird v. Koerner, 279 F.2d 623, 632 (9th Cir. 1960). The applicable Nevada statute is of recent origin and we are left without guidance from Nevada courts. However, the term ‘confidential’ has been statutorily defined:
‘A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.’
“Nev.Rev.Stat. § 49.055. We fail to see how the specific information requested can be considered a confidential communication. See Colton v. United States, 306 F.2d 633, 637-638 (2nd Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); C. McCormick, Evidence § 90 (2d ed. 1972).
“[8] Finally, Cromer attempts to raise Fourth and Fifth Amendment claims for his clients as well as himself. Even if he could raise the rights of Bell and Brooks, neither could prevent the sought-after testimony of Cromer. See Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); DeMasters v. Arend, 313 F.2d 79, 85 (9th Cir.), appeal dismissed per stipulation, 375 U.S. 936, 84 S.Ct. 341, 11 L.Ed.2d 269 (1963).
“[9] Equally unmeritorious is his claim that enforcement of this summons would violate his own Fourth and Fifth Amendment rights. Cromer does not demonstrate, as he must, how, as a result of revealing the answers to the specific questions that he has been ordered to answer, there will be a violation of his rights. His speculation and conjecture are insufficient. ‘It is well established that the privilege protects against real dangers, not remote and speculative possibilities.’ Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972); Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).” (Id. at 101-102)

We observe that in Cromer, this Court, relying on Colton v. United States, 306 F.2d 633, 638 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963) (as well as McCormick on Evidence § 90 (2d Ed. 1972)), summarily disposed of one primary issue raised in the instant case in stating it: “fail[ed] to see how the specific information requested can be considered a confidential communication,” as that language is used in the Nevada law. Cromer is the law of this Circuit.

In Colton, the Second Circuit said that certain legal advice given by attorneys is “prima facie subject to the attorney-client privilege,” but “ . . . the authorities are clear that the [attorney-client] privilege extends essentially only to the substance of matters communicated to an attorney in professional confidence. Thus the identity of a client, or the fact that a given individual has become a client are matters which an attorney normally may not refuse to disclose, even though the fact of having retained counsel may be used as evidence against the client. United States v. Pape, 144 F.2d 778 (2nd Cir.), cert. denied, 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602 (1944); Behrens v. Hironimus, 170 F.2d 627 (4th Cir. 1958); Goddard v. United States, 131 F.2d 220 (5 Cir. 1942); People ex rel. Vogelstein v. Warden, 150 Misc. 714, 270 N.Y.S. 362 (Sup.Ct.1934), aff’d mem. 242 App. Div. 611, 271 N.Y.S. 1059 (1st Dept. 1934); 8 Wigmore, Evidence § 2313 (McNaughton rev. 1961); McCormick, Evidence § 94 (1954). To be sure, there may be circumstances under which the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already been revealed but not its source. See, e. g., In re Kaplan, 8 N.Y.2d 214, 203 N.Y.S.2d 836, 168 N.E.2d 660 (1960); Baird v. Koerner, 279 F.2d 623 (9 Cir. 1960).

“We find, however, no such special circumstances in the case at bar. Nor was the permissible inquiry in this regard ended when Colton stated that the Matters were his clients and had been for some time. The principle that permits inquiry into the existence of a professional relationship obviously also permits questioning as to the years during which the relationship has continued. Thus, under the accepted doctrine, there was no basis for Colton’s refusal to answer Questions 52 and 54.

For similar reasons there was no basis for Colton’s refusal to state, in answer to Question 55, whether he had received any remuneration from the Matters for legal services rendered during the years 1954 through 1957.”

The cases relied upon by Judge Thompson are mentioned in his order. They all establish that "In the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee and who paid it do not come within the privilege of attorney-client relationship.” In re Semel, 411 F.2d 195 at 197 (3rd Cir. 1969), cert. denied, 396 U.S. 905, 90 S.Ct. 220, 24 L.Ed.2d 181 (1969); United States v. Pape, 144 F.2d 778, 782-783 (2nd Cir. 1944); Colton v. United States, 306 F.2d 633 (2nd Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); United States v. Cromer, 483 F.2d 99 (9th Cir. 1973); Wirtz v. Fowler, 372 F.2d 315, 332-333 (5th Cir. 1966); Mauch v. CIR, 113 F.2d 555 (3rd Cir. 1940); In re Wasserman, 198 F.Supp. 564 (D.D.C. 1961).

Thus it has generally been held that information concerning the fee arrangement between an attorney and his client, or the existence of the attorney-client relationship is not privileged or protected by the attorney-client privileged An exception is made for cases where the existence of the attorney-client relationship might be incriminating to a client (as in Baird v. Koerner, supra, or, as where an attorney returns a murder weapon to the police). This is not such a case. We also note that even this exception would not apply where the proper immunities are granted.

There are strong policy reasons 'why the existence of an attorney-client relationship, including the fee arrangement, should not be privileged absent incriminating circumstances such as outlined above. The courts have inherent power to regulate the bar. The courts have the right to inquire into fee arrangements both to protect the client from excessive fees and to assist an attorney in collection of his fee, but more importantly, the court may inquire into fee arrangements to protect against suspected conflicts of interest. When an attorney is paid by someone other than his client to represent that client there is a real and present danger that the attorney may in actuality be representing not the interests of his client, but those of his compensator. Not only does the client have a right to know who is paying his attorney, but the court retains the right to satisfy itself that no conflict exists and that the attorney is fulfilling his duty of loyalty to his client]

For two reasons we find no merit in appellant’s assertion of a Fifth Amendment defense on behalf of his client.

First, the Fifth Amendment privilege is personal. Appellant’s arguments and the facts of this case do not satisfy either of the two requirements for the assertion of a Fourth or Fifth Amendment privilege which were identified by the Supreme Court in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). The fee information requested in this instance is not a privileged professional communication between lawyer and client in which the client has a legitimate expectation of privacy. Furthermore, the compulsion of this contempt order is directed not at compelling Miss Sibson to testify, but rather against Mr. Michaelson. As the court in Couch said:

“The criterion for Fifth Amendment immunity remains not the ownership of property but the ‘ “physical or moral compulsion” exerted.’ Perlman [v. United States], 247 U.S. [7] at 15, 38 S.Ct. [417] at 420 [62 L.Ed. 950], We hold today that no Fourth or Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused.
* * * * * *
"It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him] As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U.S. 457, 458 [, 33 S.Ct. 572, 57 L.Ed. 919] (1913). The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself’; it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and ‘prohibition of compelling a man ... to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,’ Holt v. United States, 218 U.S. 245, 252-253 [31 S.Ct. 2, 54 L.Ed. 1021] (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.
“In the case before us the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant. He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no ‘shadow of testimonial compulsion upon or enforced communication by the accused’ is involved. Schmerber v. California, 384 U.S. 757, 765 [86 S.Ct. 1826, 1832, 16 L.Ed.2d 908] (1966)” (Id. at 336, 328-329, 93 S.Ct. at 616, 619).

Secondly, no Fifth Amendment privilege can be here asserted^ since both Mr. Michaelson and Miss Sibson were granted use immunity prior to Michaelson being instructed to answer the questions. Transactional immunity would afford a broader- protection than the Fifth Amendment privilege, but

“immunity from use and derivative use is co-extensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader.” Kastigar, et al. v. United States, 406 U.S. 441 at 453, 92 S.Ct. 1653, at 1661, 32 L.Ed.2d 212 (1972).

In arguing that he may assert a Fifth Amendment privilege on behalf of his client, appellant primarily relies upon United States v. Kasmir, 499 F.2d 444 (5th Cir. 1974) and United States v. Judson, 322 F.2d 460 (9th Cir. 1963). Judson is pre-Couch and pre-Kastigar, and prior to the use immunity statute enactment in 1970; and in neither Kasmir nor Judson had immunity been granted.

Judson, by its own language, is not here controlling. True, Mr. Judson, an attorney, claimed to raise the Fifth Amendment privilege on behalf of his clients, the Stachers.

It was undisputed that the negotiable instruments in commerce (checks and bank statements) delivered to the attorney Judson, “were never confidential from the time of their creation” (i. e., the attorney-client privilege did not apply to them). The Fifth Amendment was not invoked by the Stachers, but the items were noncompellable, if an attempt were made to have the Stachers produce them and they asserted their Fifth Amendment privilege. At issue in the Judson ease is the effective exercise of the [Fifth Amendment] privilege “by one who is clearly entitled to its protection,” meaning the taxpayers, Joseph and Miriam Stacher (Id. at 463).

But here, neither Michaelson nor Miss Sibson is entitled to such Fifth Amendment privilege'because of the use immunity previously granted each of them.

The court in Judson draws the distinction between cases in which the client could assert a Fifth Amendment claim on his own behalf, and those eases in which he was barred from so doing by waiver, or some other disability, whereby “the client himself could not have raised the privilege.”

Even assuming that Judson retains any viability since the Supreme Court’s decision in Couch, appellant does not come within the confines of the Judson rule. In the instant case, Miss Sibson cannot assert a Fifth Amendment claim on her own behalf because she has been granted use immunity. Applying the Judson rule then, Michaelson cannot assert the Fifth Amendment on her behalf.

The second case heavily relied upon by appellant is United States v. Kasmir, 499 F.2d 444 (5th Cir. 1974). In Kasmir, the court observed:

“Following Couch, it is clear that the taxpayer could assert no Fifth Amendment privilege in the records while they were held by his accountant. It is likewise clear from Couch that at the time the taxpayer obtained actual possession of the records, the day before the summons was served, he was in the position to assert his Fifth Amendment privilege, if the summons had then been served. Had he at that point followed Judge Gewin’s analysis and placed the materials in a safe under his control, he could have successfully invoked the privilege by relying upon his constructive possession. See Schwimmer v. United States, 8th Cir. 1956, 232 F.2d 855; United States v. Guterma, 2nd Cir. 1959, 272 F.2d 344. Instead-the taxpayer transfers the materials to his attorney for safekeeping and for the preparation of his defense.
“We are thus faced with this dilemma: If we hold that no Fifth Amendment privilege is now available, then the taxpayer’s rights have been effectively decreased by his transfer. In a sense, the taxpayer is better off without an attorney to study the records than with him.” (Id. at 451).

To solve the dilemma, the Kasmir majority chose to rely on deciding “whether the taxpayer has a sufficient legitimate expectation of privacy in the summoned records to warrant the label of constructive possession” (which had been denied in Couch, supra, 409 U.S. at 334-338, 93 S.Ct. 611, to a taxpayer who left his records with an accountant). Kasmir rejects “the idea that a taxpayer’s right to be free from self-incrimination can be decreased or defeated by the taxpayer’s transfer of records to his attorney pursuant to the attorney-client relationship.” (Id. at 452, emphasis in original); and holds that there was constructive possession in the taxpayer, and he could exercise his Fifth Amendment rights.

The above quoted language is followed by a reference to Note 5 in Kasmir. Note 5 (Id. at 452) cites 8 Wigmore, Evidence (McNaughton rev. 1961) § 2308. (But see § 2312.) Therein, the following appears:

“It follows, then, that when the client himself would be privileged from production of the document . as exempt from self-incrimination, the attorney having possession of the document is not bound to produce. ... On the other hand, if the client would be compellable to produce . . then the attorney is equally compellable.” (Emphasis in original.)

Again, we point out — the Kasmir holding rests upon the client’s having his Fifth Amendment privilege. In the instant ease, Miss Sibson did not have such a privilege because of the immunity granted her.

We also note that the Court in Kasmir cites for support the language in Judson which we have previously quoted: that the attorney’s ability to assert the Fifth Amendment on behalf of his client depends upon the client’s ability to assert the privilege on his own behalf. Hence for the same reason stated by this Court in distinguishing Judson, Kasmir is also distinguishable.

The court in Kasmir goes on to rule that while “[t]he attorney-client relationship, as distinguished from the attorney-client privilege,” cannot be asserted

“as a basis for denying enforcement of the summons . . . the . client may still have a legitimate expectation of privacy . . . because of the attorney-client relationship, an expectation of privacy which helps to give substance to a Fifth Amendment privilege contention.” (Kasmir at 453).

As to the attorney-client relationship claim, we find Kasmir distinguishable from the instant case. As Kastigar instructs, a grant of use immunity precludes any Fifth Amendment claim of privilege. Qrn the absence of immunity, as was the case in Kasmir, the attorney-client relationship may well give rise to an expectation of privacy, but if use immunity can constitutionally be used to invade a client’s privacy, to the extent of forcing him to testify to acts which may amount to legal and moral crimes, it certainly can be used to force disclosure of information concerning a client’s fee arrangement with his attorney!)

Cln striking the delicate balance between the information needs of the courts in administering justice and a party or witness’s right to privacy, it is sufficient that testimony elicited from a person not be used against him without a valid waiver of his Fifth Amendment privilege or the granting of immunity. But a party’s or witness’s residual rights of privacy; that is, the discomfort any witness has in testifying against his wishes about matters within his knowledge, cannot outweigh the court’s interest in getting the facts necessary to make a reasoned and informed decision. Were this not so, no immunity, indeed no subpoena, could stand — since both invade upon this residual right of privacy!)

Little case law is cited by appellant in his brief as to the alleged Fourth Amendment defense. We see no relevancy to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). As Justice Harlan states: “[tjhere is a two fold requirement ... an actual expectation of privacy, and . that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” (Id. at 361, 88 S.Ct. at 516 (concurring opinion)). The requirement that a citizen testify before a grand jury in response to a lawful subpoena is recognized by society, and the courts, as reasonable, particularly when the protection of immunity has been granted.

We hold that the refusal to testify following the protection from self-incrimination by the granting of use immunity is unreasonable.

As to the First Amendment defense, we see no way in which the answer to the question would interfere with the appellant’s right of association, and deem the defense without merit. Perhaps this is why the defense was not argued in the brief, or at oral argument.

Appellant argues that forcing him to answer the questions asked him before the grand jury is violative of his client’s Sixth Amendment rights. We find it difficult to see how the disclosure of fee information will impair his client’s right to effective counsel. Rather, it seems to us that, as in the situation of insurance company’s paid attorneys representing a policy holder, disclosure of payments from others to represent a client may be necessary to insure that an attorney is truly representing his client and not some other interest, and for the court to satisfy itself that a client is being effectively represented.

Any disclosure a party does not wish to make will entail some type of chilling effect. However, not all such “chills” amount to an impairment of constitutional rights. Viewed in this light we feel that any chilling effect which may be felt from having fee arrangements aired does not appear to us to be unwarranted or constitutionally infirm.

Counsel for appellant suggests “horribles” that will occur if this contempt order is affirmed — that this matter “is only the latest example of what is contended to be the widespread abuse of the intended function of the grand jury process by officials of the United States Government.” (Op. Br. at 12).

The best answer to this is the last paragraph of the Cromer decision, quoted above. To paraphrase it:

“Michaelson does not demonstrate, as he must, how, as a result of revealing the answers to the specific questions that he has been ordered to answer, there will be a violation of his rights. His speculation and conjecture are insufficient. It is well established that the privilege protects against real danger, not remote or speculative possibilities.”

We finally turn to appellant’s claim that the Code of Ethics of the American Bar Association (herein ABA), and the California Business and Professions Code 607 E (sic., 6068) entitle him to refuse to answer. In his brief, he also relies upon Nevada Statute § 49.095; Supreme Court Rules, State of Nevada, § 1, Rule 179, and the ABA Code of Professional Responsibility Dr. 4^101 — (A), (B)(1), and the case of People v. Canfield, supra.

While we recognize the power to compel testimony is not absolute, we seriously doubt if any local, state, regional, or national bar association would seriously intend, or contend, that any rules or recommendations or ethical advice they encourage their members to follow, can by such mere approval, create a legal right or privilege in any attorney to disobey the laws of the United States, or the interpretation thereof by the United States Supreme Court. Can it be seriously suggested that if a lawyer is told by his client, “This information is a secret between us,” the client can by such an expression foil and render totally void and nugatory the many immunity acts passed by the Congress of the United States over the past century? The treatment by the Supreme Court in Kastigar, supra, 406 U.S. 17 at 443, 92 S.Ct. at 1655, et seq., of the history of the right to compel testimony, the immunity statutes, and the Fifth Amendment privilege would certainly indicate the contrary:

“The commentators, and this Court on several occasions, have characterized immunity statutes as essential to the effective enforcement of various criminal statutes. As Mr. Justice Frankfurter observed, speaking for the Court in Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), such statutes have ‘become part of our constitutional fabric.’ Id. at 438, 76 S.Ct. [497] at 506.” Kastigar, supra, at 447, 92 S.Ct. at 1658.

We applaud the ABA’s Code of Professional Responsibility, Ethical Consideration 4-4, which provides

“The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidence and secrets of his client. This ethical precept, 'unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.”

We do not interpret this, or any other of the Codes referred to by appellant as authorizing any lawyer to disobey the laws passed by the Congress, as interpreted by the Supreme Court. We concede this argument was urged in Kasmir, and referred to in the majority opinion. We prefer the reasoning of the dissent. Until the Supreme Court rules to the contrary, we do not propose to follow the Kasmir ruling, which of course, is not binding in this circuit.

In the case of People v. Canfield, supra, the California Supreme Court held that a financial statement filed by a defendant with his public defender was protected by the lawyer-client privilege, and should not have been entered in evidence, but that such error was harmless, and the conviction affirmed.

Appellant’s reliance on Canfield is inapposite. First, we note that it is the Nevada law relative to the attorney-client privilege which is at issue in this case, not California’s. Under Nevada law, as interpreted by this Court in Cromer, supra, information concerning fee arrangements between an attorney and his client are not privileged (except in exceptional cases not here relevant). Second, in Canfield Mr. Justice McComb specifically declined to consider whether “forcing disclosure of the statement at his trial was a violation of his rights under the Fifth and Sixth Amendments to the United States Constitution, as well as article I, section 13 of the California Constitution, and also denied him equal protection of the laws.” (Id., 12 Cal.3d at 707, 117 Cal.Rptr. at 86, 527 P.2d at 638).

We find no merit in appellant’s reliance on these matters urged as recited above.

We wish to make very clear that in holding that testimony elicited from Mr. Michaelson under a grant of immunity is not otherwise privileged, we do not reach the question of what the scope of the immunity granted to him and Miss Sibson is. We hold that Michaelson is not privileged to withhold his information from the Grand Jury. We do not reach the question of whether testimony elicited from Mr. Michaelson may be used in a subsequent prosecution against Miss Sibson; and vice versa, should Mr. Michaelson be prosecuted, we will not anticipate this issue since the situation has as yet not arisen. Indeed, it would be constitutionally improper for us to reach this question since the issue lacks the necessary facts to make it concrete. This issue is not only unripe, the case is non-existent. This Court does not intend to and cannot, issue an advisory opinion on a hypothetical fact situation.

Finding no merit in any of appellant’s allegations of privilege, we

Affirm.

^MERRILL, Circuit Judge, dissenting: \ I can conceive of no purpose for seeking the information covered by the questions in issue except to show a connection between Miss Sibson and some unknown person thought to have referred her to Michaelson and to have undertaken to pay his fee. If such connection be relevant, one may expect that some inference of guilt of Miss Sibson may rationally be drawn from the fact of the connection. Asking these questions of Michaelson can serve alternative purposes: (1) if the answers correspond to those already given by Miss Sibson, the United States may have escaped Miss Sibson’s use immunity by obtaining the information from another source; (2) if the answers differ from those given by Miss Sibson, they may serve to expose her to a charge of perjury. I dislike this reliance upon the attorney-client relationship to accomplish incrimination of the clienfl

The majority, may be correct in concluding that the attorney-client privilege does not attach to the information sought since that information was not the subject of a confidential communication strictly defined; and that under Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), Miss Sibson’s Fifth Amendment rights cannot be asserted by Michaelson. I am not prepared to accept these propositions without further study, which time simply does not permit. Assuming the majority to be correct, however, to me that is not the end of the matter.

^~Where the circumstances suggest that the client may be incriminated by the information sought from the attorney, and where that information came to the attorney’s knowledge by virtue of the attorney-client relationship, the appropriate test in my judgment should not be limited to technicalities of confidentiality or Fifth Amendment privilege. Voluntary revelation of such information by the attorney surely would be regarded as a breach of professional ethics. I cannot accept the view that the courts are duty bound in every case to coerce such breach through power of the civil contempt sanction. This would be to require the courts to act in derogation of a relationship to which they traditionally accord high respeqtj

I cannot, then, agree that the only limits upon what a court may require an attorney to divulge respecting his client are those prescribed by privilege and the Fifth Amendment. Where ethical considerations intervene, surrender of the information to the Government should no longer be regarded as a matter of unquestionable governmental right. Public need to obtain the information from this source should not be blindly accepted without giving consideration to the interests represented by the attorney-client relationship, and a court order should be the result of an exercise of judgment seeking to reconcile the competing interests. Absent some showing of weighty governmental need of this information from this source, in my judgment the order should not have issued.

      . In the United States District Court for the District of Nevada
      Misc. No. R — 74-43 BRT
      In re:
      Grand Jury Appearance of Alvin S. Michaelson, >- Esquire.
      [Received and Filed Oct. 17, 19743
      ORDER
      Alvin S. Michaelson, an attorney, has moved to quash a grand j'ury subpoena upon the ground that the anticipated questions will violate the attorney-client privilege.
      “In the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.” In re Semel, 411 F.2d 195 (3rd Cir. 1969). This is also true with respect to who paid the fee, if any. United States v. Pape, 144 F.2d 7.78 (2nd Cir. 1944). The Pape case is instructive because of the dissent by Judge Learned Hand. Unlike Pape, Michaelson’s affidavit in the instant case makes no claim that disclosure would violate a confidential communication from any client other than Brenda Sibson. In the affidavit, Michaelson alludes to conversations “between Brenda Marie Sibson, myself and/or her agents,” but obviously, if the subject matter is not privileged as to Sibson, the client, it is not privileged in communications with the client’s agents.
      The allusion to possible jeopardy because of a false affidavit under the Criminal Justice Act is a red herring. Sibson has been granted immunity from prosecution under 18 U.S.C. § 6002, et seq, and has been interrogated with respect to the subject matter of Michaelson’s proposed testimony. The Fifth Amendment privilege is personal and cannot be asserted by Michaelson for the protection of Sibson. Accordingly,
      It Hereby Is Ordered that the motion to quash the grand jury subpoena is hereby denied and Alvin S. Michaelson, Esq. is hereby ordered to appear before the United States Grand Jury at Reno, Nevada at 9:30 o’clock a.
      m. on October 24, 1974, then and there to give testimony respecting unprivileged communications with his client, Brenda Marie Sibson, as indicated in the foregoing discussion.
      Dated: October 17, 1974.
      /s/ Bruce R. Thompson United States District Judge

      . The precise answer given to question 9 was this:
      “A. I’m not going to answer that question on the grounds that I’ve indicated before. And for the record those grounds [are] the First Amendment, the Fourth Amendment, the Fifth Amendment on behalf of my client, the Sixth Amendment, the Canons of Ethics of the American Bar Association, the attorney-client privilege, and the Canons of Ethics as indicated in California Business and Professions Code 606 E relating to my duties as an attorney as a member of the Bar of the State of California.” (R.T., Vol. Ill, pp. 9-10).

      . Appellant does not assert the Fifth Amendment on his own behalf:
      “Q. Then specifically you’re invoking the First Amendment to the Constitution, the Fourth Amendment to the Constitution, your Fifth Amendment privilege—
      A. As it relates to Miss Sibson.
      Q. Her Fifth Amendment privilege?
      A. Yes, on behalf of her I’m asserting it, that’s correct.
      Q. Are you invoking your own Fifth Amendment privilege?
      A. I believe I cannot do that.
      Q. I just asked you yes or no whether you were.
      A. I can’t answer it that way.
      Q. A simple yes or no. Are you refusing to answer on the grounds it may tend to incriminate you?
      A. Oh, no, absolutely not.” (R.T. Vol. Ill, p. 7 lines 9-23).

      . (In United States v. Cromer, supra.)

      “5 Nev.Rev.Stat. § 49.095 provides:
      “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:
      “1. Between himself or his representative and his lawyer or his lawyer’s representative.
      “2. Between his lawyer and the lawyer’s representative.
      “3. Made for the purpose of facilitating the rendition of professional legal services to the client, by him or his lawyer to a lawyer representing another in a matter of common interest.”