EFTA00222925.pdf

HUMPHREYS, HUTCHESON AND MOSELEY I. DONOVAN 1211 cat Is 755 F2d 1211 (19212) 1. Labor Relations 6=23 HUMPHREYS, HUTCHESON AND Congressional concern underlying La- MOSELEY, Plaintiff-Appellant. bor-Management Reporting and Disclosure Act provision requiring filing of reports by I "persuaders" so as to subject them to pres- Raymond J. DONOVAN, Secretary of sure of publicity was that, quite without Labor, Defendant-Appellee. regard to motives or methods of particular No. 83-5564. individuals engaging in persuading, the persuader business is detrimental to good United States Court of Appeals, labor relations and continued public inter- Sixth Circuit. est Labor-Management Reporting and Disclosure Act of 1959, 44 203, 203(b), 29 Argued Aug. 1, 1984. U.S.C.A. 44 433, 433(b). Decided February 20, 1985. 2. Labor Relations 4=13 That attorneys exhorting workers, on Law firm sought declaratory judgment behalf of employer, to reject union repre- and injunctive relief against Secretary of sentation identified themselves to the em- Labor from Labor persuader reporting and ployees did not remove them from ambit of disclosure requirements of Labor-Manage Labor-Management Reporting and Disclo- ment Reporting and Disclosure Act, in ac- sure Act provision requiring filing of re tion arising from speech given to client's ports by "persuaders." Labor-Manage- employees by law firm partner in connec- ment Reporting and Disclosure Act of tion with union recognition election. The 1958, § 203(b), 29 U.S.C.A. § 433(b). United States District Court for the Middle 3. Labor Relations 4=>23 District of Tennessee, John T. Nixon, J., 568 F.Supp. 161, denied the law firm's sum- Labor-Management Reporting and Dis- mary judgment motion, but granted the closure Act provision exempting, from re- Secretary's. On appeal by the law firm, porting requirements imposed upon "per- suaders," persons advising employer or the Court of Appeals, Bailey Brown, Senior representing an employer before court, Circuit Judge, held that (1) the LMRDA agency or administrative tribunal and per provision exempting, from requirement engaging in negotiations or arbitra- that "persuaders" file reports, persons ad- tion on behalf of employer was intended to vising employer or representing employer clarify that attorneys engaged in usual before court, agency or administrative tri- practice of labor law are not obligated to bunal and persons engaging in negotiations report. Labor-Management Reporting and or arbitration on behalf of employer means Disclosure Act of 1959, § 203(b, c), 29 U.S. that as long as attorney confines himself to C.A. § 433(b, c). activities set forth in such exempting provi- sion, he need not report, but if he crosses 4. Labor Relations tam:IS boundary between practice of labor law Congress in enacting Labor-Manage and persuasion, he is subject to the exten- ment Reporting and Disclosure Act provi- sive reporting requirements; (2) none of sions concerning filing of reports by "per- the information required to be reported suaders" recognized that ordinary practice runs counter to common-law attorney-client of labor law does not encompass persuasive privilege; and (3) the reporting require- activities, and the disclosure requirement is ments, being carefully tailored to the primarily directed to labor consultants. government's compelling interest, are not Labor-Management Reporting and Disclo- overly broad. sure Act of 1958, § 203(b, c), 29 U.S.C.A. Affirmed. 433(b, c). EFTA00222925 1212 755 FEDERAL REPORTER, 2d SERIES 5. Labor Relations 4=23 clients' identities, attorney's fees, and Labor-Management Reporting and Dis- scope and nature of employment are not closure Act provision exempting, from re- deemed privileged. quirement that "persuaders" file reports, 9. Labor Relations 4=23 persons advising employer or representing None of information required to be employer before court., agency or adminis- trative tribunal and persons engaging in reported, by Labor-Management Reporting and Disclosure Act provision requiring fil- negotiations or arbitration on behalf of em- ployer means that as long as attorney con- ing of reports by "persuaders," runs coun- fines himself to activities set forth in such ter to common-law attorney-client privilege. Labor-Management Reporting and Disclo- exempting provision, he need not report, but if he crosses boundary between prac- sure Act of 1959, 66 203(b), 204, 29 U.S. C.A. 66 433(b), 434. tice of labor law and persuasion, he is subject to the extensive reporting require- 10. Constitutional Law e=90.1(7), 91 ments. Labor-Management Reporting and In determining whether disclosure re- Disclosure Act of 1959, § 203(b), 29 U.S. quirements of Labor-Management Report- C.A. § 433(b). ing and Disclosure Act violated First 6. Labor Relations 4=23 Amendment rights of speech and associa- Labor-Management Reporting and Dis- tion, court's analysis would focus on four closure Act provision that nothing in Act factors, i.e., degree of infringement on was to be construed to require attorney First Amendment rights, importance of who is member in good standing of bar of governmental interest protected by the any state to include in any required report Act, whether "substantial relationship" ex- any information which has been lawfully isted between governmental interest and communicated to such attorney by any of information required to be disclosed, and his clients in course of legitimate attorney- closeness of the "fit" between Act and client relationship was not intended to governmental interest it purported to fur- broaden traditional attorney-client privi- ther. Labor-Management Reporting and lege, but, to contrary, was intended to ac- Disclosure Act of 1959, § 203(b), 29 U.S. cord same privilege as that provided by C.A. § 433(b); U.S.C.A. ConsiAmend. 1. common-law attorney-client privilege. La- IL Constitutional Law 4=82(3) bor-Management Reporting and Disclosure Finding of substantial "chill" on pro- Act of 1959, § 204, 29 U.S.C.A. § 434. tected First Amendment rights requires 7. Federal Courts 41=416 showing that the statutory scheme will re- On assertion of privilege, against dis- sult in threats, harassment or reprisals to closure, by attorney for employer, district specific individuals. U.S.C.A. Const. court erroneously applied Tennessee law of Amend. 1. attorney-client privilege, and, although It Constitutional Law 0=82(6) Federal Rule of Evidence did not apply, Labor Relations 4=18 federal common law of attorney-client priv- Labor-Management Reporting and Dis- ilege governed. Fed.Rules Evid.Rule 501, closure Act requirements for the filing of 28 U.S.C.A. reports by "persuaders" did not produce 8. Witnesses o=198(2) "deterrent effect" sufficient to warrant Under federal common law of attor- finding that such requirements, if applied ney-client privilege, privilege only pre- to attorneys who on behalf of employer cludes disclosure of communications be- exhorted employees to reject union repre- tween attorney and client and does not sentation, would result in substantial bur- protect against disclosure of facts underly- dening, as opposed to not inconsequential ing the communication, and, in general, chilling, of such lawyers' First Amendment fact of legal consultation or employment, rights. Labor-Management Reporting and EFTA00222926  HUMPHREYS, HUTCHESON MID MOSELEY DONOVAN 1213 Oran 733 Pad 1211 (1W) Disclosure Act of 1959, § 203(b), 29 U.S. Amendment freedoms, and therefore such C.A. § 433(b); U.S.C.A. Const.Amend. 1. requirements were not overly broad. La- 13. Constitutional Law a=47 bor-Management Reporting and Disclosure Where although it was found that alle- Act of 1959, § 203(b), 29 U.S.C.A. § 433(b); gations of chill upon First Amendment U.S.C.A. Const.Amend. 1. rights were not substantial, but chill was not inconsequential, court in determining James I. Doramus, James F. Neal, Neal validity of statute under First Amendment & Harwell, Nashville, Tenn., Frank P. Pine- would look further to determine whether hak (argued), Chattanooga, Tenn., for disclosure legislation was narrowly tailored plaintiff-appellant. to serve compelling governmental interest. R. John Seibert, June R. Carbone, Dept Labor-Management Reporting and Disclo- of Justice, Washington, D.C., Joe B. sure Act of 1959, § 203(b), 29 U.S.C.A. Brown, U.S. Atty., Margaret Huff, Asst. § 433(b). U.S. Atty., Nashville, Tenn., for defendant- 14. Constitutional Law (0442(6) appellee. labor Relations a=8 Before KEITH and CONTIE, Circuit Government's compelling interest in Judges, BROWN, Senior Circuit Judge. maintaining harmonious labor relations outweighed chill placed upon law firm's BAILEY BROWN, Senior Circuit Judge. exercise of its First Amendment rights by This appeal involves sections 203' and Labor-Management Reporting and Disclo- sure Act provision requiring filing of re 204 1 of Title II of the Labor Management Reporting and Disclosure Act of 1959 ports by "persuaders." Labor-Manage- (hereinafter referred to as "Act" or ment Reporting and Disclosure Act of "LMRDA").3 The issue on appeal is 1959, § 203(b), 29 U.S.C.A. § 433(b). whether plaintiff attorneys who made 15. Constitutional Law e=82(6) speeches urging their client's employees to labor Relations 4=8 vote against union representation (and who Labor-Management Reporting and Dis- were, therefore, "persuaders") were re- closure Act requirements for the filing of quired by section 203(b) of the LMRDA to reports by "persuaders" were substantially make the reports described by that provi- related to government's interest in deter- sion. When the Secretary called upon ring corruption in labor relations field, and plaintiff attorneys to make the reports con- such requirements were carefully tailored templated by section 203(b), they filed an to avoid needless curtailment of First action for declaratory relief and an injunc- 1. 29 US.C. § 433. engaged in doing business and the address of its principal office, and a detailed statement 2. 29 U.S.C. § 434. of the terms and conditions of such agree- 3. 29 U.S.C. § 401 a seq. Section 203 provides ment or arrangement. Every such person in pertinent part: shall file annually, with respect to each fiscal (b) Every person who pursuant to any agree- year during which payments were made as a ment or arrangement with an employer un- result of such an agreement or arrangement. dertakes activities where an object thereof is, a report with the Secretary, signed by its pres- directly or indirectly— ident and treasurer or corresponding princi- (1) to persuade employees to exercise or not pal officers, containing a statement (A) of its to exercise, or persuade employees as to the receipts of any kind from employers on ac- manner of exercising, the right to organize count of labor relations advice or services, and bargain collectively through representa- designating the sources thereof, and (B) of its tives of their own choosing ... shall file disbursements of any kind, in connection within thirty days after entering into such with such services and the purposes thereof. agreement or arrangement a report with the In each such case such information shall be Secretary, signed by its president and treasur- set forth in such categories as the Secretary er or corresponding principal officers, con- may prescribe. taining the name under which such person is EFTA00222927 1214 755 FEDERAL REPORTER, 2d SERIES tion, and the Secretary filed a counterclaim & M by mail, stating that it had received an for an order requiring the attorneys to inquiry regarding the firm's persuader ac- make the reports. In an extensive and tivities during the Southern Silk Mills elec- careful ornion, Humphreys, Hutcheson & tion. The Department informed HH & M Moseley Donovan, 568 F.Supp. 161(14.D. that because Mr. Moseley and Mr. Hutche- Tenn-1983), the district court held that the son had attempted to persuade the employ- plaintiff attorneys must comply with all of ees to reject the Union, the firm must the disclosure requirements of section 203 disclose its agreement with Southern Silk and granted summary judgment for the pursuant to section 203 of the LMRDA. Secretary. The Department also instructed HH & M that it must file an annual financial report, 1. Form LM-21, reporting inter alio "re- The facts in this case are undisputed. ceipts and disbursements of any kind in Humphreys, Hutcheson and Moseley ("HH connection with labor relations advice and & M") is a law firm that practices labor law services." in Chattanooga, Tennessee. In 1977, HH & M was retained by Southern Silk Mills, II. Inc. to represent it during an election con- HH & M contends that the statute prop- ducted by the NLRB. Before the election, erly interpreted does not require it to file two of the firm's partners, William P. the reports contemplated by section 203(b) Hutcheson and Ray H. Moseley, made and that if it does, the statute is unconsti- speeches to Southern Silk's employees urg- tutional. The Secretary, of course, con- ing them to reject representation by the tends the contrary. We approach the is- Amalgamated Clothing and Textile Work- sues as did the parties. ers Union ("Union" or "ACTIWU").1 Be- fore he began his speech, Moseley was A. identified as an attorney in the law firm Under LMRDA section 203, a person who representing Southern Silk. In his speech agrees to engage or who engages in per to the workers, Moseley rendered an ac- activities must file a thirty day re- count of an unlawful strike against Kayser- port and an annual report. The Secretary Roth Corporation involving the same Un- has authorized the use of Form LM-20 for ion.* After describing the violence that the thirty day report, 29 C.F.R. § 406.2 accompanied the KayserRoth strike, Mose- (1984), and Form LM-21 for the annual ley urged the assembled employees to vote report, 29 C.F.R. § 406.3(a) (1984). The against the Union.* Hutcheson also de- annual report is more comprehensive than scribed the Kayser-Roth strike violence and the thirty day report. The annual report exhorted the employees to reject union rep- requires the persuader to disclose all re- resentation. ceipts from all employers on account of On September 7, 1978, the Department labor relations advice or services and the of Labor ("Department"), through its persuader must designate the source of Nashville, Tennessee office, contacted HH these receipts. In addition, the persuader 4. The speeches were made pursuant to an agree- described the Union leaders as "nightriders," ment with Southern Silk Mills. "great marvelors, courageous cowards from New York," and wicked breed of cat." Mose- S. See Kayser-Roth Corp. Textile Waders Un- ley also attacked the motives of the Union lead- ion of America, AFL.C701 347 FSupp. 801 (ED. ership as follows: "the head leadership of the Tenn.1972), 41•4 479 F2d 524 (6th Cir.), cart Textile Workers Union are New Yorkers, and denied 414 US. 976, 94 &Ct. 292, 38 LEd2d their home office is in New York and their 219 (1973). assets are in New York ... they don't have any S He stated, "Which one of you in your hearts vested interest down here except as a source of would like to be number (sic) in a company of taking money out of peoples paychecks" Ap- infidels like that?" Appendix at 86. Moseley pendix at 77. EFTA00222928  HUMPHREYS. HUTCHESON AND MOSELEY I. DONOVAN 1215 Cite s 755 F.24 lilt (19U) must reveal all of his disbursements made ty for misleading concealment of the true in connection with his labor relations advice nature of such Attorney's work in situa- and services, and the persuader must sped- lions involving intricate corporate con- fy the purpose for these disbursements. glomerate associates or, equally press- HH & M has stipulated that it has acted ing, industry-wide labor controversies. as a persuader, yet it contends that the Behind this judgment, of course, was the firm should be excused from filing the re- congressional conviction that quite with- ports, especially the annual report. HH & out regard to the motives or methods of M first argues that section 203(b) of the particular individuals engaging in it, the statute is inapplicable to the firm because persuader business was detrimental to it did not act as a covert middleman. It is good labor relations and the continued undisputed that the HH & M partners iden- public interest Since a principal object tified themselves as attorneys representing of LMRDA was neutralizing the evils of Southern Silk management before speaking persuaders, it was quite legitimate and to its employees. HH & M contends that consistent with the Act's main sanction the LMRDA is aimed at covert manage- of goldfishbowl publicity to turn the ment middlemen who engage in activities spotlight on the lawyer who wanted not such as spying, bribery and influence ped- only to serve clients in labor relations dling rather than at persuaders who openly matters encompassed within § 203(c) but engage in "legitimate" persuasive activities who wanted also to wander into the legis- such as the speeches given by the partners latively suspect field of a persuader. of the firm who were disclosed persuaders. It at 650 (footnotes omitted). We find the (1,21 When enacting the LMRDA, Con- fact that the attorneys identified them- gress did not distinguish between disclosed selves to the Southern Silk employees did and undisclosed persuaders or between le- not remove them from the ambit of LMRDA gitimate and nefarious persuasive activi- section 203(b). ties. Rather, Congress determined that persuasion itself was a suspect activity and B. concluded that the possible evil could best (3, 4] Appellant contends that even if it be remedied through disclosure. It was is required to file the reports contemplated hoped that persuasive activity would be by section 203(b), that section 203(c) re- curbed by subjecting persuaders to glaring lieves its persuader-attorneys from the ne- publicity. We agree with the summation cessity of reporting information regarding of congressional intent set forth by the the clients for whom it performs no per- Fifth Circuit in Price' Wirtz, 412 F.2d 647 suader services. Section 203(c)' exempts (5th Cir.1969) (en bane): persons advising an employer or represent- The legislative judgment that one who ing an employer before a court, agency or engages in the persuader business must administrative tribunal and persons engag- be subjected to the pressure of revealing ing in negotiations or arbitration on behalf publicity is amply justified by the diffi- of an employer from the reporting require- culty in distinguishing between those ac- ments of section 203(b). This court agrees tivities that are persuader activities and with the majority of courts 6 that find the those that are not, and by the opportuni- purpose of section 203(c) is to clarify what 7. Section 203(c) Provides: ployer with respect to wages, hours, or other Nothing in this section shall be construed to terms or conditions of employment or the require any employer or other person to file a negotiation of an agreement or any question report covering the services of such person by arising thereunder. reason of his giving or agreeing to give advice to such employer or representing or agreeing 8. See Price!. Wirtz 412 F.2d 647, 649 (5th to represent such employer before any court, Cir.1969) (en bane); Douglas. Wirtz 353 F.2d administrative agency. or tribunal of arbitra. 30, 32 (4th Cir.1965), cert. denied 383 US 909, lion or engaging or agreeing to engage in 86 S.Ct. 893, 15 LE4.2d 665 (1966). collective bargaining on behalf of such em- EFTA00222929 1216 755 FEDERAL REPORTER, 2d SERIES is implicit in section 203(b)—that attorneys Once HH & M's partners engaged in per- engaged in the usual practice of labor law suasion and the duty to report arose, sec- are not obligated to report under section tion 203(c) ceased to shield the persuader 203(b).1 attorneys' law firm from reporting the mat- ters described in section 203(b) regarding (5) We determine that section 203(c) their non-persuader clients. means that as long as an attorney confines himself to the activities set forth in section C. 203(c), he need not report, but if he cross- (61 The appellant contends that even if es the boundary between the practice of it is subject to the reporting requirements labor law and persuasion, he is subject to of section 203, the requested information is the extensive reporting requirements. As protected by the attorney-client privilege recognized in section 204.1e This is an is- the Fifth Circuit stated in Price Wirtz, sue of fast impression." Appellant con- 412 F.2d 647, 651 (5th Cir.1969) (en bane): tends that the attorney-client privilege codi- It boils down to this. As long as the fied in LMRDA section 204 is broader than attorney limits himself to the activities the traditional attorney-client privilege. set forth in § 203(c) [rendering advice We fmd to the contrary, that in section 204 and representing a client in proceedings Congress intended to accord the same privi- or in bargaining), he need not report. lege as that provided by the common-law Engaging in such advice or collective attorney-client privilege. bargaining does not give rise to a duty to report. No report is set in motion "by 1. reason of his doing those things. What On March 22, 1958, Senator John F. Ken- sets the reporting in motion is perform- nedy introduced S. 1555. As introduced by ing persuader activities. Once that duty Senator Kennedy, S. 1555 contained no pro- arises, § 203(c) does not insulate from vision codifying the attorney-client privi- reporting the matters in § 203(b) for non- lege. Senator Kennedy believed that attor- persuader clients. neys were adequately protected under the 9. Congress recognized that the ordinary practice 412 F.2d 647 (5th Cir.1969) (en banc), reached of labor law does not encompass persuasive the issue whether LMRDA § 204 exempts attor- activities. As the Fourth Circuit stated in Doug- neys from disclosing certain categories of infor- las I. MIrtz, 353 F.2d 30, 33 (4th Cir.1965), cat mation required by LMRDA § 203(b). In Wirtz dented 383 US. 909, 86 S.G. 893. 15 Fowler, 372 12d 315 (5th Cir.1966), overrukd 665 (1966): in part, Prke Wirtz, 412 F2d 647 (5th Cir. Primarily, as the legislative history records, 1969) (en bane), the court stated that it was not the (disclosure] requirement is directed to la- required to determine the scope of § 204. yet it bor consultants. Their work is not necessari- proceeded to do just that. 372 F.2d at 332. The ly a lawyer's. Indeed. for a legal adviser it Fowler court found that § 204 did not prevent would be extracurricular. True, a client may the disclosure of any information required un- desire such extra-professional services, but, if der § 203. The court opined that in order to be so, the attorney must balance the benefits meaningful, a report required under § 203 must with the obligations incident to the undertak- ing. include the name of the client, the terms of the persuader arrangement, and the fees involved. 10. Section 204 provides: The court concluded that § 204 was "roughly Nothing contained in this chapter shall be parallel (to) the common-law attorney.client construed to require an attorney who is a privilege" and found that the common law privi- member in good standing of the bar of any lege would not prevent the disclosure of the State, to include in any report required to be required information by an attorney-persuader. filed pursuant to the provisions of this chap- hi The court remarked that the privilege, ter any information which was lawfully com- which belongs to the client rather than to the municated to such attorney by any of his attorney, only protects confidential information. clients in the course of a legitimate attorney- The court recognized that a client's identity or client relationship. the amount of fees paid ordinarily does not 11. Neither Douglas Wirtz, 353 F.2d 30 (4th constitute confidential information. Cir.1965), cent. denied'. 383 U.S. 909, j6 S.Ct. 893. IS LEd.2d 665 (1966). nor Price Pang EFTA00222930  HUMPHREYS, HUTCHESON AND MOSELEY t DONOVAN 1217 Ott ait75511.2411211 (1925) provision in his bill that eventually became ing me, and a report had to be made, I LMRDA section 203. Senator Goldwater, would not want all of the intimate details however, vigorously advocated an amend- of communications between the attorney ment to S. 1555 that would codify the attor- and me to become public property.... ney-client privilege. Senator Kennedy, Mr. Kennedy. I was not referring to the who referred to the Goldwater amendment lawyers who represent criminals, how- as "the amendment which takes care of the ever obnoxious they may be. I was re lawyers," 105 Cong.Rec. 1161 (1959), origi- ferring to lawyers who deal collusively nally opposed the amendment. Senator with crooked unions, crooken union lead- Kennedy accepted the amendment only af- ers, or crooked employers, and then, in ter satisfying himself that the scope of the an attempt to protect themselves, justify amendment, now codified at LMRDA sec- their actions on the basis of a confiden- tion 204, did not exceed that of the tradi- tial relationship.... tional attorney-client privilege. The follow- ing exchange took place on the floor of the Mr. Dirksen. Unless I have been labor- Senate. ing under a delusion for the last 20 years Mr. Goldwater. The amendment specifi- as a member of the bar, it is my under- cally exempts from the reporting require- standing that the safeguard of the law- ments of the bill any communications yer-client relationship was designed not between an attorney and his client. I do to safeguard or protect the lawyer, but not know how I can explain the amend- the client. I am not so certain that the ment any more completely than that.. I distinguished Senator from Massachu- think every attorney and every Member setts has been under a misapprehension of this body understands the historic re- about it. lationship and sanctity of such communi- cations. I hope the Senator from Massa- Mr. Kennedy. If the Senator from Illinois chusetts will accept the amendment had sat on the McClellan committee, he Mr. Kennedy. Mr. President, I am pre- would understand that the practice pared to accept the amendment As I works both ways. understand, it is the amendment which Mr. Dirksen. But that was not the rea- takes care of the lawyers. son it was designed in the fast instance, Mr. Goldwater. That is correct. when it was written into the law. The Mr. Kennedy. It goes against my grain idea was that when a client came into a lawyer's office and laid out his confes- to accept the amendment, because no bar association in the United States, as of sional story, a confidential relationship tonight, has moved against one lawyer was created, and the lawyer could not be who has come before the McClellan com- brought into court to testify to the con- mittee and who has participated, in one versations between his client and him- way or another, in the improper practices self. The law was not designed to de- which have been found.... fend the lawyer, it was designed to safe- Mr. Goldwater. I am not any happier guard the American citizen who hired the than is the Senator from Massachusetts lawyer. about the activities of some of the attor- Mr. Kennedy. There is no doubt in my neys who appeared before the committee. mind that the bill which was originally But as a layman I recognize that there drafted by lawyers adequately protected must be lawyers to represent these peo- them. Therefore, I do not feel that the ple, whether we like the people or not. amendment offered by the Senator from As a layman, I believe that there should Arizona is wholly necessary. But in or- be a perpetuation of the sanctity of rela- der that there may be no question about tions between attorney and client I it, I will accept the amendment. . . . know that if I were involved in a situa- Mr. Dirksen.... [I] think it is important tion in which an attorney was represent- to anchor the fundamental reason or pur- 756 r 26-20 EFTA00222931 1218 755 FEDERAL REPORTER, 2d SERIES pose for protecting this relationship. It not limited to the existence of the rela- has existed since time immemorial. It tionship of attorney and client, the finan- was designed to protect the client cial details thereof, or any information against harassment in case somebody obtained, advice given, or activities car- tried to compel him, by process or other- ried on by the attorney within the scope wise, to disclose conversations, confes- of the legitimate practice of law. sions, and statements which might have H.R. 8342, 86th Cong., 2d Seas. 4 204 been interchanged between lawyer and (1959), U.S.Code Cong. & Admin.News client. 1959, p. 2318. The House Report accompa- Mr. Kennedy. Mr. President, I sin de- nying H.R. 8342 stated It]he purpose of lighted to accept the amendment—I this section is to protect the traditional mean to say I accept the amendment confidential relationship between attorney 105 Cong.Rec. 19759-62 (1959). and client from any infringement or en- The American Bar Association, which croachment under the reporting provisions was concerned about the ramifications the of the committee bill." H.R.Rep. No. 741, proposed legislation might have upon attor- 86th Cong., 2d Sess. 37 (1959), U.S.Code neys, adopted a resolution at its 1959 mid- Cong. & Admin.News 1959, p. 2459. The winter meeting which stated: House version of the bill, and by implica- Resolved, That the American Bar Associ- tion the ABA Resolution, was rejected by ation urges that in any proposed legisla- the Conference Committee. The Senate tion in the labor management field, the version of the bill, S. 1555, which contained traditional confidential relationship be- a much narrower attomey-client privilege, tween attorney and client be preserved, was enacted into law as LMRDA section and that no such legislation should re- 204. The Conference Committee Report quire report or disclosure, by either at- states: torney or client, of any matter which has traditionally been considered as confiden- The Senate bql provides that an attorney tial between a client and his attorney, need not include in any report required including but not limited to the existence by the act any information which was of the relationship of attorney and client, lawfully communicated to such attorney the financial details thereof, and any ad- by any of his clients in the course of a vice or activities of the attorney on be- legitimate attorney-client relationship. half of his client which fall within the The conference substitute adopts the pro- scope of the legitimate practice of visions of the Senate bill, but in connec- tion therewith the conferees included, in The House version of LMRDA section 204 section 203(c), a provision taken from the contained an attorney-client exclusion al- Senate bill that provides that an employ- most identical to the ABA proposal. The er or other person is not required to file House version provided: a report covering the services of such Attorney-Client Communications Ex- person by reason of his giving or agree- empted ing to give advice to such employer or Sec. 204. Nothing contained in this Act representing or agreeing to represent shall be construed to require an attorney such employer before any court, adminis- who is a member in good standing of the trative agency, or tribunal of arbitration bar in any State, or any client of such an or engaging or agreeing to engage in attorney, to include in any report re- collective bargaining on behalf of such quired to be filed pursuant to the provi- employer or the negotiation of an agree- sions of this Act any information which ment or any question arising thereunder. is confidential between the attorney and H.R.Rep. No. 1147, 86th Cong., 2d Sess. 33 such client in the course of a legitimate (1959), U.S.Code Cong. & Admin.News attorney-client relationship, including but 1959, p. 2505. EFTA00222932  HUMPHREYS, HUTCHESON AND MOSELEY I. DONOVAN 1219 Ote as 753 Fad 1311 (1W) We fmd that in contending that the attor- I United States, 449 U.S. 383, 395, 101 ney-client privilege contained in section 204 S.Ct. 677, 685, 66 LEd.2d 584 (1981). In exceeds the scope of the traditional attor- general, the fact of legal consultation or ney-client privilege, the appellant has mis- employment, clients' identities, attorney's construed the statute. Our review of the fees, and the scope and nature of employ- legislative history convinces this court that ment are not deemed privileged. In In re in LMRDA section 204, Congress intended Grand Jury Investigation No. 83-245, to accord the same protection as that pro- 723 F.2d 447 (6th Cir.1983), cert denied, vided by the common-law attorney-client — U.S. —, 104 S.Ct. 3524, 82 LEd.2d privilege. 831 (1984), this court reiterated the princi- 2. ple that the attorney-client privilege should [7) This court" set forth the essential be narrowly construed and held that the elements of the attorney-client privilege in attorney-client privilege does not protect United States Goldfarb, 328 F.2d 280 the identity of a client except in very limit- (6th Cir.), cert. denied, 377 U.S. 976, 84 ed circumstances. In United States 1 S.Ct. 1883, 12 LEd.2d 746 (1964), as fol- Haddad, 527 F.2d 537, 538-39 (6th Cir. lows: 1975), cert. denied, 425 U.S. 974, 96 S.Ct. (1) Where legal advice of any kind is 2173, 48 LEd.2d 797 (1976), this court held sought (2) from a professional legal ad- that the amount of money paid or owed by viser in his capacity as such, (3) the com- a client to his attorney is not privileged munications relating to that purpose, (4) except in exceptional circumstances not made in confidence (5) by the client, (6) present in the instant case. We conclude are at his instance permanently protected that none of the information that LMRDA (7) from disclosure by himself or by the section 203(b) requires to be reported runs legal adviser, (8) except the protection be counter to the common-law attorney-client waived. privilege. Any other interpretation of the privilege created by section 204 would ren- Id. at 281, (quoting 8 J. Wigmore, Evidence der section 203(b) nugatory as to persuader in Trials At Common Law b 2292, at 554 lawyers. (McNaughton rev. 1961)). In Goldfarb, this court recognized that the attorney- client privilege "does not envelope every- III. thing arising from the existence of an at- HH & M contends that the disclosure torney-client relationship" and emphasized requirements are unconstitutional in that that "the attorney-client privilege is an ex- they infringe upon its free speech and asso- ception carved from the rule requiring full ciational rights guaranteed by the first disclosure, and as an exception, should not amendment. In essence, the contention be extended to accomplish more than its here is that it will be deterred from exercis- purpose." 328 F.2d at 282. See also Unit- ing its right of free speech by making ed States Bartone, 400 F.2d 459, 461 persuader speeches for its clients if, by (6th Cir.1968) (attorney-client privilege is doing so, it will be compelled to file the not all inclusive), cert. denied, 393 U.S. reports required by section 203(b). The 1027, 89 S.Ct. 631, 21 LEd.2d 571 (1969). argument is that a law firm such as HH & 18,91 The attorney-client privilege only M would be reluctant to place on public precludes disclosure of communications record its payments to its partners, associ- between attorney and client and does not ates and employees and that labor relations protect against disclosure of the facts un- clients would be reluctant to employ a law derlying the communication. Upjohn Co. firm that, because of its persuader status 12. The court below erroneously applied the Ten- gy and find that the federal common-law of nessee law of attorney-client privilege. Al- attorney-client privilege governs the instant dis- though Federal Rule of Evidence 501 does not pute. apply in the instant case, we follow it by analo- EFTA00222933 1220 755 FEDERAL REPORTER, 2d SERIES with respect to some clients, is compelled court in Master Printers then set out the to place their payments to the firm on analytical framework for testing Master public record. Thus, argues HH & M, its Printers' claim that the reporting require- free speech and associational rights are ments are unconstitutional: unconstitutionally chilled by the require- [O]ur analysis must focus on four fac- ment that it comply with section 203(b). tors: the degree of infringement on rust The Secretary concedes that HH & M's amendment rights; the importance of the right to make otherwise legal persuader governmental interest protected by the speeches for its clients is protected by the Ace whether a "substantial relation" ex- first amendment but content that the re- ists between the governmental interest quirement that the information be filed and the information required to be dis- with the Secretary does not unconstitution- closed; and the closeness of the "fit" ally chill HH & M's exercise of its free between the Act and the governmental speech and associational rights. interest it purports to further. [101 In dealing with this contention, we 751 F.2d at 704. agree with the analytical framework em- This court must weigh these four factors ployed by the Fourth Circuit in Master in order to determine whether the burden Printers of America I. Donovan, Secre- imposed on HH & M's exercise of its free tary of Labor, 751 F.2d 700 (4th Cir.1984), speech and associational rights, assuming which involved a constitutional attack on such a burden exists, is justified by the section 203(b). Master Printers is a trade government's interest in maintaining anti- association to which nonunion printing septic conditions in the labor relations set- firms belong. It distributed a publication ting. to its employer members and to some of their employees which, among other things, A. argued against union membership by print- ing employees. The Secretary determined [11) As the Master Printers court stat- that this activity was persuader activity ed, "[a] finding of a substantial 'chill' on and that therefore it must file the reports protected first amendment rights requires required by section 203(b) as to its member- a showing that the statutory scheme will ship. Without reciting the long history of result in threats, harassment, or reprisals this litigation, suffice it to say that it to specific individuals?' IS at 704 (citing reached the Fourth Circuit for the third Buckley.. Valeo, 424 U.S. 1, 74, 96 S.Q. time on the narrow issue of the constitu- 612, 661, 46 L.Ed.2d 659 (1976)); NAACP, tionality of section 203(b) as applied to 357 U.S. at 462-63, 78 S.Ct. at 1171-72 Master Printers. This trade association (1958). contended that its free speech and associa- (121 In NAACP, the Court found that tional rights were unconstitutionally in- the statutorily mandated disclosures of the fringed by the report requirements because NAACP's membership lists were not war- compliance with them would deter member- ranted because the NAACP had "made an ship by employers. uncontroverted showing that on past occa- The Master Printers court recognized sions revelation of the identity of its rank- that the Supreme Court had declared un- and-file members ha[d) exposed these mem- constitutional compelled disclosure of mem- bers to economic reprisal, loss of employ- bership in groups involved in advocacy, ment, threat of physical coercion and mani- such as in NAACP Alabama ex rel. festations of public hostility." NAACP, Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 357 U.S. at 462, 78 S.Ct. at 1172. In Buck- L.Ed.2d 1488 (1958), and that in doing so, leyI Valeo, the seminal case on the consti- the Court held that disclosure laws that tutionality of compelled disclosures in the significantly encroach on such associational first amendment context, the Court upheld rights must survive exacting scrutiny. The the constitutionality of the disclosure re- EFTA00222934  HUMPHREYS, HUTCHESON AND MOSELEY DONOVAN 1221 Meagan F.2d 1211 (12.2) quirements of the Federal Election Cam- of Labor to be speculation. Like the Mas- paign Act, 2 U.S.C. § 431 et seq. (1982). In ter Printers court, "we do not believe that rejectin