HUMPHREYS, HUTCHESON AND

HUMPHREYS, HUTCHESON AND MOSELEY, Plaintiff-Appellant. I Raymond J. DONOVAN, Secretary of Labor, Defendant-Appellee. No. 83-5564. United States Court of Appeals, Sixth Circuit. Argued Aug. 1, 1984. Decided February 20, 1985. Law firm sought declaratory judgment and injunctive relief against Secretary of Labor from Labor persuader reporting and disclosure requirements of Labor-Manage ment Reporting and Disclosure Act, in ac- tion arising from speech given to client's employees by law firm partner in connec- tion with union recognition election. The United States District Court for the Middle District of Tennessee, John T. Nixon, J., 568 F.Supp. 161, denied the law firm's sum- mary judgment motion, but granted the Secretary's. On appeal by the law firm, the Court of Appeals, Bailey Brown, Senior Circuit Judge, held that (1) the LMRDA provision exempting, from requirement that "persuaders" file reports, persons ad- vising employer or representing employer before court, agency or administrative tri- bunal and persons engaging in negotiations or arbitration on behalf of employer means that as long as attorney confines himself to activities set forth in such exempting provi- sion, he need not report, but if he crosses boundary between practice of labor law and persuasion, he is subject to the exten- sive reporting requirements; (2) none of the information required to be reported runs counter to common-law attorney-client privilege; and (3) the reporting require- ments, being carefully tailored to the government's compelling interest, are not overly broad. Affirmed. HUMPHREYS, HUTCHESON AND MOSELEY I. DONOVAN cat Is 755 F2d 1211 (19212) 1. Labor Relations 6=23 Congressional concern underlying La- bor-Management Reporting and Disclosure Act provision requiring filing of reports by "persuaders" so as to subject them to pres- sure of publicity was that, quite without regard to motives or methods of particular individuals engaging in persuading, the persuader business is detrimental to good labor relations and continued public inter- est Labor-Management Reporting and Disclosure Act of 1959, 44 203, 203(b), 29 U.S.C.A. 44 433, 433(b). 1211 2. Labor Relations 4=13 That attorneys exhorting workers, on behalf of employer, to reject union repre- sentation identified themselves to the em- ployees did not remove them from ambit of Labor-Management Reporting and Disclo- sure Act provision requiring filing of re ports by "persuaders." Labor-Manage- ment Reporting and Disclosure Act of 1958, § 203(b), 29 U.S.C.A. § 433(b). 3. Labor Relations 4=>23 Labor-Management Reporting and Dis- closure Act provision exempting, from re- porting requirements imposed upon "per- suaders," persons advising employer or representing an employer before court, agency or administrative tribunal and per engaging in negotiations or arbitra- tion on behalf of employer was intended to clarify that attorneys engaged in usual practice of labor law are not obligated to report. Labor-Management Reporting and Disclosure Act of 1959, § 203(b, c), 29 U.S. C.A. § 433(b, c). 4. Labor Relations tam:IS Congress in enacting Labor-Manage ment Reporting and Disclosure Act provi- sions concerning filing of reports by "per- suaders" recognized that ordinary practice of labor law does not encompass persuasive activities, and the disclosure requirement is primarily directed to labor consultants. Labor-Management Reporting and Disclo- sure Act of 1958, § 203(b, c), 29 U.S.C.A. 433(b, c). EFTA00222925 1212 755 FEDERAL REPORTER, 2d SERIES 5. Labor Relations 4=23 Labor-Management Reporting and Dis- closure Act provision exempting, from re- quirement that "persuaders" file reports, persons advising employer or representing employer before court., agency or adminis- trative tribunal and persons engaging in negotiations or arbitration on behalf of em- ployer means that as long as attorney con- fines himself to activities set forth in such exempting provision, he need not report, but if he crosses boundary between prac- tice of labor law and persuasion, he is subject to the extensive reporting require- ments. Labor-Management Reporting and Disclosure Act of 1959, § 203(b), 29 U.S. C.A. § 433(b). 6. Labor Relations 4=23 Labor-Management Reporting and Dis- closure Act provision that nothing in Act was to be construed to require attorney who is member in good standing of bar of any state to include in any required report any information which has been lawfully communicated to such attorney by any of his clients in course of legitimate attorney- client relationship was not intended to broaden traditional attorney-client privi- lege, but, to contrary, was intended to ac- cord same privilege as that provided by common-law attorney-client privilege. La- bor-Management Reporting and Disclosure Act of 1959, § 204, 29 U.S.C.A. § 434. 7. Federal Courts 41=416 On assertion of privilege, against dis- closure, by attorney for employer, district court erroneously applied Tennessee law of attorney-client privilege, and, although Federal Rule of Evidence did not apply, federal common law of attorney-client priv- ilege governed. Fed.Rules Evid.Rule 501, 28 U.S.C.A. 8. Witnesses o=198(2) Under federal common law of attor- ney-client privilege, privilege only pre- cludes disclosure of communications be- tween attorney and client and does not protect against disclosure of facts underly- ing the communication, and, in general, fact of legal consultation or employment, clients' identities, attorney's fees, and scope and nature of employment are not deemed privileged. 9. Labor Relations 4=23 None of information required to be reported, by Labor-Management Reporting and Disclosure Act provision requiring fil- ing of reports by "persuaders," runs coun- ter to common-law attorney-client privilege. Labor-Management Reporting and Disclo- sure Act of 1959, 66 203(b), 204, 29 U.S. C.A. 66 433(b), 434. 10. Constitutional Law e=90.1(7), 91 In determining whether disclosure re- quirements of Labor-Management Report- ing and Disclosure Act violated First Amendment rights of speech and associa- tion, court's analysis would focus on four factors, i.e., degree of infringement on First Amendment rights, importance of governmental interest protected by the Act, whether "substantial relationship" ex- isted between governmental interest and information required to be disclosed, and closeness of the "fit" between Act and governmental interest it purported to fur- ther. Labor-Management Reporting and Disclosure Act of 1959, § 203(b), 29 U.S. C.A. § 433(b); U.S.C.A. ConsiAmend. 1. IL Constitutional Law 4=82(3) Finding of substantial "chill" on pro- tected First Amendment rights requires showing that the statutory scheme will re- sult in threats, harassment or reprisals to specific individuals. U.S.C.A. Const. Amend. 1. It Constitutional Law 0=82(6) Labor Relations 4=18 Labor-Management Reporting and Dis- closure Act requirements for the filing of reports by "persuaders" did not produce "deterrent effect" sufficient to warrant finding that such requirements, if applied to attorneys who on behalf of employer exhorted employees to reject union repre- sentation, would result in substantial bur- dening, as opposed to not inconsequential chilling, of such lawyers' First Amendment rights. Labor-Management Reporting and EFTA00222926 13. Constitutional Law a=47 Where although it was found that alle- gations of chill upon First Amendment rights were not substantial, but chill was not inconsequential, court in determining validity of statute under First Amendment would look further to determine whether disclosure legislation was narrowly tailored to serve compelling governmental interest. Labor-Management Reporting and Disclo- sure Act of 1959, § 203(b), 29 U.S.C.A. § 433(b). 14. Constitutional Law (0442(6) labor Relations a=8 Government's compelling interest in maintaining harmonious labor relations outweighed chill placed upon law firm's exercise of its First Amendment rights by Labor-Management Reporting and Disclo- sure Act provision requiring filing of re ports by "persuaders." Labor-Manage- ment Reporting and Disclosure Act of 1959, § 203(b), 29 U.S.C.A. § 433(b). 15. Constitutional Law e=82(6) labor Relations 4=8 Labor-Management Reporting and Dis- closure Act requirements for the filing of reports by "persuaders" were substantially related to government's interest in deter- ring corruption in labor relations field, and such requirements were carefully tailored to avoid needless curtailment of First 1. 29 US.C. § 433. 2. 29 U.S.C. § 434. 3. 29 U.S.C. § 401 a seq. Section 203 provides in pertinent part: (b) Every person who pursuant to any agree- ment or arrangement with an employer un- dertakes activities where an object thereof is, directly or indirectly— (1) to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representa- tives of their own choosing ... shall file within thirty days after entering into such agreement or arrangement a report with the Secretary, signed by its president and treasur- er or corresponding principal officers, con- taining the name under which such person is 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- bor-Management Reporting and Disclosure Act of 1959, § 203(b), 29 U.S.C.A. § 433(b); U.S.C.A. Const.Amend. 1. James I. Doramus, James F. Neal, Neal & Harwell, Nashville, Tenn., Frank P. Pine- hak (argued), Chattanooga, Tenn., for plaintiff-appellant. R. John Seibert, June R. Carbone, Dept of Justice, Washington, D.C., Joe B. Brown, U.S. Atty., Margaret Huff, Asst. U.S. Atty., Nashville, Tenn., for defendant- appellee. Before KEITH and CONTIE, Circuit Judges, BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. This appeal involves sections 203' and 204 1 of Title II of the Labor Management Reporting and Disclosure Act of 1959 (hereinafter referred to as "Act" or "LMRDA").3 The issue on appeal is whether plaintiff attorneys who made speeches urging their client's employees to vote against union representation (and who were, therefore, "persuaders") were re- quired by section 203(b) of the LMRDA to make the reports described by that provi- sion. When the Secretary called upon plaintiff attorneys to make the reports con- templated by section 203(b), they filed an action for declaratory relief and an injunc- engaged in doing business and the address of its principal office, and a detailed statement of the terms and conditions of such agree- ment or arrangement. Every such person shall file annually, with respect to each fiscal year during which payments were made as a result of such an agreement or arrangement. a report with the Secretary, signed by its pres- ident and treasurer or corresponding princi- pal officers, containing a statement (A) of its receipts of any kind from employers on ac- count of labor relations advice or services, designating the sources thereof, and (B) of its disbursements of any kind, in connection with such services and the purposes thereof. In each such case such information shall be set forth in such categories as the Secretary may prescribe. EFTA00222927 1214 755 FEDERAL REPORTER, 2d SERIES tion, and the Secretary filed a counterclaim for an order requiring the attorneys to make the reports. In an extensive and careful ornion, Humphreys, Hutcheson & Moseley Donovan, 568 F.Supp. 161(14.D. Tenn-1983), the district court held that the plaintiff attorneys must comply with all of the disclosure requirements of section 203 and granted summary judgment for the Secretary. 1. The facts in this case are undisputed. Humphreys, Hutcheson and Moseley ("HH & M") is a law firm that practices labor law in Chattanooga, Tennessee. In 1977, HH & M was retained by Southern Silk Mills, Inc. to represent it during an election con- ducted by the NLRB. Before the election, two of the firm's partners, William P. Hutcheson and Ray H. Moseley, made speeches to Southern Silk's employees urg- ing them to reject representation by the Amalgamated Clothing and Textile Work- ers Union ("Union" or "ACTIWU").1 Be- fore he began his speech, Moseley was identified as an attorney in the law firm representing Southern Silk. In his speech to the workers, Moseley rendered an ac- count of an unlawful strike against Kayser- Roth Corporation involving the same Un- ion.* After describing the violence that accompanied the KayserRoth strike, Mose- ley urged the assembled employees to vote against the Union.* Hutcheson also de- scribed the Kayser-Roth strike violence and exhorted the employees to reject union rep- resentation. On September 7, 1978, the Department of Labor ("Department"), through its Nashville, Tennessee office, contacted HH 4. The speeches were made pursuant to an agree- ment with Southern Silk Mills. S. See Kayser-Roth Corp. Textile Waders Un- ion of America, AFL.C701 347 FSupp. 801 (ED. Tenn.1972), 41•4 479 F2d 524 (6th Cir.), cart denied 414 US. 976, 94 &Ct. 292, 38 LEd2d 219 (1973). S He stated, "Which one of you in your hearts would like to be number (sic) in a company of infidels like that?" Appendix at 86. Moseley & M by mail, stating that it had received an inquiry regarding the firm's persuader ac- tivities during the Southern Silk Mills elec- tion. The Department informed HH & M that because Mr. Moseley and Mr. Hutche- son had attempted to persuade the employ- ees to reject the Union, the firm must disclose its agreement with Southern Silk pursuant to section 203 of the LMRDA. The Department also instructed HH & M that it must file an annual financial report, Form LM-21, reporting inter alio "re- ceipts and disbursements of any kind in connection with labor relations advice and services." II. HH & M contends that the statute prop- erly interpreted does not require it to file the reports contemplated by section 203(b) and that if it does, the statute is unconsti- tutional. The Secretary, of course, con- tends the contrary. We approach the is- sues as did the parties. A. Under LMRDA section 203, a person who agrees to engage or who engages in per activities must file a thirty day re- port and an annual report. The Secretary has authorized the use of Form LM-20 for the thirty day report, 29 C.F.R. § 406.2 (1984), and Form LM-21 for the annual report, 29 C.F.R. § 406.3(a) (1984). The annual report is more comprehensive than the thirty day report. The annual report requires the persuader to disclose all re- ceipts from all employers on account of labor relations advice or services and the persuader must designate the source of these receipts. In addition, the persuader described the Union leaders as "nightriders," "great marvelors, courageous cowards from New York," and wicked breed of cat." Mose- ley also attacked the motives of the Union lead- ership as follows: "the head leadership of the Textile Workers Union are New Yorkers, and their home office is in New York and their assets are in New York ... they don't have any vested interest down here except as a source of taking money out of peoples paychecks" Ap- pendix at 77. EFTA00222928 HH & M has stipulated that it has acted as a persuader, yet it contends that the firm should be excused from filing the re- ports, especially the annual report. HH & M first argues that section 203(b) of the statute is inapplicable to the firm because it did not act as a covert middleman. It is undisputed that the HH & M partners iden- tified themselves as attorneys representing Southern Silk management before speaking to its employees. HH & M contends that the LMRDA is aimed at covert manage- ment middlemen who engage in activities such as spying, bribery and influence ped- dling rather than at persuaders who openly engage in "legitimate" persuasive activities such as the speeches given by the partners of the firm who were disclosed persuaders. (1,21 When enacting the LMRDA, Con- gress did not distinguish between disclosed and undisclosed persuaders or between le- gitimate and nefarious persuasive activi- ties. Rather, Congress determined that persuasion itself was a suspect activity and concluded that the possible evil could best be remedied through disclosure. It was hoped that persuasive activity would be curbed by subjecting persuaders to glaring publicity. We agree with the summation of congressional intent set forth by the Fifth Circuit in Price' Wirtz, 412 F.2d 647 (5th Cir.1969) (en bane): The legislative judgment that one who engages in the persuader business must be subjected to the pressure of revealing publicity is amply justified by the diffi- culty in distinguishing between those ac- tivities that are persuader activities and those that are not, and by the opportuni- 7. Section 203(c) Provides: Nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer or representing or agreeing to represent such employer before any court, administrative agency. or tribunal of arbitra. lion or engaging or agreeing to engage in collective bargaining on behalf of such em- 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- ing, industry-wide labor controversies. Behind this judgment, of course, was the congressional conviction that quite with- out regard to the motives or methods of particular individuals engaging in it, the persuader business was detrimental to good labor relations and the continued public interest Since a principal object of LMRDA was neutralizing the evils of persuaders, it was quite legitimate and consistent with the Act's main sanction of goldfishbowl publicity to turn the spotlight on the lawyer who wanted not only to serve clients in labor relations matters encompassed within § 203(c) but who wanted also to wander into the legis- latively suspect field of a persuader. It at 650 (footnotes omitted). We find the fact that the attorneys identified them- selves to the Southern Silk employees did not remove them from the ambit of LMRDA section 203(b). B. (3, 4] Appellant contends that even if it is required to file the reports contemplated by section 203(b), that section 203(c) re- lieves its persuader-attorneys from the ne- cessity of reporting information regarding the clients for whom it performs no per- suader services. Section 203(c)' exempts persons advising an employer or represent- ing an employer before a court, agency or administrative tribunal and persons engag- ing in negotiations or arbitration on behalf of an employer from the reporting require- ments of section 203(b). This court agrees with the majority of courts 6 that find the purpose of section 203(c) is to clarify what ployer with respect to wages, hours, or other terms or conditions of employment or the negotiation of an agreement or any question arising thereunder. 8. See Price!. Wirtz 412 F.2d 647, 649 (5th Cir.1969) (en bane); Douglas. Wirtz 353 F.2d 30, 32 (4th Cir.1965), cert. denied 383 US 909, 86 S.Ct. 893, 15 LE4.2d 665 (1966). EFTA00222929 1216 755 FEDERAL REPORTER, 2d SERIES is implicit in section 203(b)—that attorneys engaged in the usual practice of labor law are not obligated to report under section 203(b).1 (5) We determine that section 203(c) means that as long as an attorney confines himself to the activities set forth in section 203(c), he need not report, but if he cross- es the boundary between the practice of labor law and persuasion, he is subject to the extensive reporting requirements. As the Fifth Circuit stated in Price Wirtz, 412 F.2d 647, 651 (5th Cir.1969) (en bane): It boils down to this. As long as the attorney limits himself to the activities set forth in § 203(c) [rendering advice and representing a client in proceedings or in bargaining), he need not report. Engaging in such advice or collective bargaining does not give rise to a duty to report. No report is set in motion "by reason of his doing those things. What sets the reporting in motion is perform- ing persuader activities. Once that duty arises, § 203(c) does not insulate from reporting the matters in § 203(b) for non- persuader clients. 9. Congress recognized that the ordinary practice of labor law does not encompass persuasive activities. As the Fourth Circuit stated in Doug- las I. MIrtz, 353 F.2d 30, 33 (4th Cir.1965), cat dented 383 US. 909, 86 S.G. 893. 15 665 (1966): Primarily, as the legislative history records, the (disclosure] requirement is directed to la- bor consultants. Their work is not necessari- ly a lawyer's. Indeed. for a legal adviser it would be extracurricular. True, a client may desire such extra-professional services, but, if so, the attorney must balance the benefits with the obligations incident to the undertak- ing. 10. Section 204 provides: Nothing contained in this chapter shall be construed to require an attorney who is a member in good standing of the bar of any State, to include in any report required to be filed pursuant to the provisions of this chap- ter any information which was lawfully com- municated to such attorney by any of his clients in the course of a legitimate attorney- client relationship. 11. Neither Douglas Wirtz, 353 F.2d 30 (4th Cir.1965), cent. denied'. 383 U.S. 909, j6 S.Ct. 893. IS LEd.2d 665 (1966). nor Price Pang Once HH & M's partners engaged in per- suasion and the duty to report arose, sec- tion 203(c) ceased to shield the persuader attorneys' law firm from reporting the mat- ters described in section 203(b) regarding their non-persuader clients. C. (61 The appellant contends that even if it is subject to the reporting requirements of section 203, the requested information is protected by the attorney-client privilege recognized in section 204.1e This is an is- sue of fast impression." Appellant con- tends that the attorney-client privilege codi- fied in LMRDA section 204 is broader than the traditional attorney-client privilege. We fmd to the contrary, that in section 204 Congress intended to accord the same privi- lege as that provided by the common-law attorney-client privilege. 1. On March 22, 1958, Senator John F. Ken- nedy introduced S. 1555. As introduced by Senator Kennedy, S. 1555 contained no pro- vision codifying the attorney-client privi- lege. Senator Kennedy believed that attor- neys were adequately protected under the 412 F.2d 647 (5th Cir.1969) (en banc), reached the issue whether LMRDA § 204 exempts attor- neys from disclosing certain categories of infor- mation required by LMRDA § 203(b). In Wirtz Fowler, 372 12d 315 (5th Cir.1966), overrukd in part, Prke Wirtz, 412 F2d 647 (5th Cir. 1969) (en bane), the court stated that it was not required to determine the scope of § 204. yet it proceeded to do just that. 372 F.2d at 332. The Fowler court found that § 204 did not prevent the disclosure of any information required un- der § 203. The court opined that in order to be meaningful, a report required under § 203 must include the name of the client, the terms of the persuader arrangement, and the fees involved. The court concluded that § 204 was "roughly parallel (to) the common-law attorney.client privilege" and found that the common law privi- lege would not prevent the disclosure of the required information by an attorney-persuader. hi The court remarked that the privilege, which belongs to the client rather than to the attorney, only protects confidential information. The court recognized that a client's identity or the amount of fees paid ordinarily does not constitute confidential information. EFTA00222930 HUMPHREYS, HUTCHESON AND MOSELEY t DONOVAN 1217 Ott ait75511.2411211 (1925) provision in his bill that eventually became LMRDA section 203. Senator Goldwater, however, vigorously advocated an amend- ment to S. 1555 that would codify the attor- ney-client privilege. Senator Kennedy, who referred to the Goldwater amendment as "the amendment which takes care of the lawyers," 105 Cong.Rec. 1161 (1959), origi- nally opposed the amendment. Senator Kennedy accepted the amendment only af- ter satisfying himself that the scope of the amendment, now codified at LMRDA sec- tion 204, did not exceed that of the tradi- tional attorney-client privilege. The follow- ing exchange took place on the floor of the Senate. Mr. Goldwater. The amendment specifi- cally exempts from the reporting require- ments of the bill any communications between an attorney and his client. I do not know how I can explain the amend- ment any more completely than that.. I think every attorney and every Member of this body understands the historic re- lationship and sanctity of such communi- cations. I hope the Senator from Massa- chusetts will accept the amendment Mr. Kennedy. Mr. President, I am pre- pared to accept the amendment As I understand, it is the amendment which takes care of the lawyers. Mr. Goldwater. That is correct. Mr. Kennedy. It goes against my grain to accept the amendment, because no bar association in the United States, as of tonight, has moved against one lawyer who has come before the McClellan com- mittee and who has participated, in one way or another, in the improper practices which have been found.... Mr. Goldwater. I am not any happier than is the Senator from Massachusetts about the activities of some of the attor- neys who appeared before the committee. But as a layman I recognize that there must be lawyers to represent these peo- ple, whether we like the people or not. As a layman, I believe that there should be a perpetuation of the sanctity of rela- tions between attorney and client I know that if I were involved in a situa- tion in which an attorney was represent- 756 r 26-20 ing me, and a report had to be made, I would not want all of the intimate details of communications between the attorney and me to become public property.... Mr. Kennedy. I was not referring to the lawyers who represent criminals, how- ever obnoxious they may be. I was re ferring to lawyers who deal collusively with crooked unions, crooken union lead- ers, or crooked employers, and then, in an attempt to protect themselves, justify their actions on the basis of a confiden- tial relationship.... Mr. Dirksen. Unless I have been labor- ing under a delusion for the last 20 years as a member of the bar, it is my under- standing that the safeguard of the law- yer-client relationship was designed not to safeguard or protect the lawyer, but the client. I am not so certain that the distinguished Senator from Massachu- setts has been under a misapprehension about it. Mr. Kennedy. If the Senator from Illinois had sat on the McClellan committee, he would understand that the practice works both ways. Mr. Dirksen. But that was not the rea- son it was designed in the fast instance, when it was written into the law. The idea was that when a client came into a lawyer's office and laid out his confes- sional story, a confidential relationship was created, and the lawyer could not be brought into court to testify to the con- versations between his client and him- self. The law was not designed to de- fend the lawyer, it was designed to safe- guard the American citizen who hired the lawyer. Mr. Kennedy. There is no doubt in my mind that the bill which was originally drafted by lawyers adequately protected them. Therefore, I do not feel that the amendment offered by the Senator from Arizona is wholly necessary. But in or- der that there may be no question about it, I will accept the amendment. ... Mr. Dirksen.... [I] think it is important to anchor the fundamental reason or pur- EFTA00222931 1218 755 FEDERAL REPORTER, 2d SERIES pose for protecting this relationship. It has existed since time immemorial. It was designed to protect the client against harassment in case somebody tried to compel him, by process or other- wise, to disclose conversations, confes- sions, and statements which might have been interchanged between lawyer and client. Mr. Kennedy. Mr. President, I sin de- lighted to accept the amendment—I mean to say I accept the amendment 105 Cong.Rec. 19759-62 (1959). The American Bar Association, which was concerned about the ramifications the proposed legislation might have upon attor- neys, adopted a resolution at its 1959 mid- winter meeting which stated: Resolved, That the American Bar Associ- ation urges that in any proposed legisla- tion in the labor management field, the traditional confidential relationship be- tween attorney and client be preserved, and that no such legislation should re- quire report or disclosure, by either at- torney or client, of any matter which has traditionally been considered as confiden- tial between a client and his attorney, including but not limited to the existence of the relationship of attorney and client, the financial details thereof, and any ad- vice or activities of the attorney on be- half of his client which fall within the scope of the legitimate practice of The House version of LMRDA section 204 contained an attorney-client exclusion al- most identical to the ABA proposal. The House version provided: Attorney-Client Communications Ex- empted Sec. 204. Nothing contained in this Act shall be construed to require an attorney who is a member in good standing of the bar in any State, or any client of such an attorney, to include in any report re- quired to be filed pursuant to the provi- sions of this Act any information which is confidential between the attorney and such client in the course of a legitimate attorney-client relationship, including but not limited to the existence of the rela- tionship of attorney and client, the finan- cial details thereof, or any information obtained, advice given, or activities car- ried on by the attorney within the scope of the legitimate practice of law. H.R. 8342, 86th Cong., 2d Seas. 4 204 (1959), U.S.Code Cong. & Admin.News 1959, p. 2318. The House Report accompa- nying H.R. 8342 stated It]he purpose of this section is to protect the traditional confidential relationship between attorney and client from any infringement or en- croachment under the reporting provisions of the committee bill." H.R.Rep. No. 741, 86th Cong., 2d Sess. 37 (1959), U.S.Code Cong. & Admin.News 1959, p. 2459. The House version of the bill, and by implica- tion the ABA Resolution, was rejected by the Conference Committee. The Senate version of the bill, S. 1555, which contained a much narrower attomey-client privilege, was enacted into law as LMRDA section 204. The Conference Committee Report states: The Senate bql provides that an attorney need not include in any report required by the act any information which was lawfully communicated to such attorney by any of his clients in the course of a legitimate attorney-client relationship. The conference substitute adopts the pro- visions of the Senate bill, but in connec- tion therewith the conferees included, in section 203(c), a provision taken from the Senate bill that provides that an employ- er or other person is not required to file a report covering the services of such person by reason of his giving or agree- ing to give advice to such employer or representing or agreeing to represent such employer before any court, adminis- trative agency, or tribunal of arbitration or engaging or agreeing to engage in collective bargaining on behalf of such employer or the negotiation of an agree- ment or any question arising thereunder. H.R.Rep. No. 1147, 86th Cong., 2d Sess. 33 (1959), U.S.Code Cong. & Admin.News 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- ney-client privilege contained in section 204 exceeds the scope of the traditional attor- ney-client privilege, the appellant has mis- construed the statute. Our review of the legislative history convinces this court that in LMRDA section 204, Congress intended to accord the same protection as that pro- vided by the common-law attorney-client privilege. 2. [7) This court" set forth the essential elements of the attorney-client privilege in United States Goldfarb, 328 F.2d 280 (6th Cir.), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 LEd.2d 746 (1964), as fol- lows: (1) Where legal advice of any kind is sought (2) from a professional legal ad- viser in his capacity as such, (3) the com- munications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. Id. at 281, (quoting 8 J. Wigmore, Evidence in Trials At Common Law b 2292, at 554 (McNaughton rev. 1961)). In Goldfarb, this court recognized that the attorney- client privilege "does not envelope every- thing arising from the existence of an at- torney-client relationship" and emphasized that "the attorney-client privilege is an ex- ception carved from the rule requiring full disclosure, and as an exception, should not be extended to accomplish more than its purpose." 328 F.2d at 282. See also Unit- ed States Bartone, 400 F.2d 459, 461 (6th Cir.1968) (attorney-client privilege is not all inclusive), cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21 LEd.2d 571 (1969). 18,91 The attorney-client privilege only precludes disclosure of communications between attorney and client and does not protect against disclosure of the facts un- derlying the communication. Upjohn Co. 12. The court below erroneously applied the Ten- nessee law of attorney-client privilege. Al- though Federal Rule of Evidence 501 does not apply in the instant case, we follow it by analo- I United States, 449 U.S. 383, 395, 101 S.Ct. 677, 685, 66 LEd.2d 584 (1981). In general, the fact of legal consultation or employment, clients' identities, attorney's fees, and the scope and nature of employ- ment are not deemed privileged. In In re Grand Jury Investigation No. 83-245, 723 F.2d 447 (6th Cir.1983), cert denied, — U.S. —, 104 S.Ct. 3524, 82 LEd.2d 831 (1984), this court reiterated the princi- ple that the attorney-client privilege should be narrowly construed and held that the attorney-client privilege does not protect the identity of a client except in very limit- ed circumstances. In United States 1 Haddad, 527 F.2d 537, 538-39 (6th Cir. 1975), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 LEd.2d 797 (1976), this court held that the amount of money paid or owed by a client to his attorney is not privileged except in exceptional circumstances not present in the instant case. We conclude that none of the information that LMRDA section 203(b) requires to be reported runs counter to the common-law attorney-client privilege. Any other interpretation of the privilege created by section 204 would ren- der section 203(b) nugatory as to persuader lawyers. III. HH & M contends that the disclosure requirements are unconstitutional in that they infringe upon its free speech and asso- ciational rights guaranteed by the first amendment. In essence, the contention here is that it will be deterred from exercis- ing its right of free speech by making persuader speeches for its clients if, by doing so, it will be compelled to file the reports required by section 203(b). The argument is that a law firm such as HH & M would be reluctant to place on public record its payments to its partners, associ- ates and employees and that labor relations clients would be reluctant to employ a law firm that, because of its persuader status gy and find that the federal common-law of attorney-client privilege governs the instant dis- pute. EFTA00222933 1220 755 FEDERAL REPORTER, 2d SERIES with respect to some clients, is compelled to place their payments to the firm on public record. Thus, argues HH & M, its free speech and associational rights are unconstitutionally chilled by the require- ment that it comply with section 203(b). The Secretary concedes that HH & M's right to make otherwise legal persuader speeches for its clients is protected by the first amendment but content that the re- quirement that the information be filed with the Secretary does not unconstitution- ally chill HH & M's exercise of its free speech and associational rights. [101 In dealing with this contention, we agree with the analytical framework em- ployed by the Fourth Circuit in Master Printers of America I. Donovan, Secre- tary of Labor, 751 F.2d 700 (4th Cir.1984), which involved a constitutional attack on section 203(b). Master Printers is a trade association to which nonunion printing firms belong. It distributed a publication to its employer members and to some of their employees which, among other things, argued against union membership by print- ing employees. The Secretary determined that this activity was persuader activity and that therefore it must file the reports required by section 203(b) as to its member- ship. Without reciting the long history of this litigation, suffice it to say that it reached the Fourth Circuit for the third time on the narrow issue of the constitu- tionality of section 203(b) as applied to Master Printers. This trade association contended that its free speech and associa- tional rights were unconstitutionally in- fringed by the report requirements because compliance with them would deter member- ship by employers. The Master Printers court recognized that the Supreme Court had declared un- constitutional compelled disclosure of mem- bership in groups involved in advocacy, such as in NAACP Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and that in doing so, the Court held that disclosure laws that significantly encroach on such associational rights must survive exacting scrutiny. The court in Master Printers then set out the analytical framework for testing Master Printers' claim that the reporting require- ments are unconstitutional: [O]ur analysis must focus on four fac- tors: the degree of infringement on rust amendment rights; the importance of the governmental interest protected by the Ace whether a "substantial relation" ex- ists between the governmental interest and the information required to be dis- closed; and the closeness of the "fit" between the Act and the governmental interest it purports to further. 751 F.2d at 704. This court must weigh these four factors in order to determine whether the burden imposed on HH & M's exercise of its free speech and associational rights, assuming such a burden exists, is justified by the government's interest in maintaining anti- septic conditions in the labor relations set- ting. A. [11) As the Master Printers court stat- ed, "[a] finding of a substantial 'chill' on protected first amendment rights requires a showing that the statutory scheme will result in threats, harassment, or reprisals to specific individuals?' IS at 704 (citing Buckley.. Valeo, 424 U.S. 1, 74, 96 S.Q. 612, 661, 46 L.Ed.2d 659 (1976)); NAACP, 357 U.S. at 462-63, 78 S.Ct. at 1171-72 (1958). (121 In NAACP, the Court found that the statutorily mandated disclosures of the NAACP's membership lists were not war- ranted because the NAACP had "made an uncontroverted showing that on past occa- sions revelation of the identity of its rank- and-file members ha[d) exposed these mem- bers to economic reprisal, loss of employ- ment, threat of physical coercion and mani- festations of public hostility." NAACP, 357 U.S. at 462, 78 S.Ct. at 1172. In Buck- leyI Valeo, the seminal case on the consti- tutionality of compelled disclosures in the first amendment context, the Court upheld 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- paign Act, 2 U.S.C. § 431 et seq. (1982). In rejecting the complaining parties' argu- ments that portions of the Act violated the rights of minority parties and independent candidates, the Buckley Court pointed out that "no appellant in this case has tendered record evidence of the sort proffered in NAACP I. Alabama." 424 U.S. at 71, 96 S.Ct. at 659-60. The Court found that individual exceptions from the reporting re- quirements were justified when a party proved "only a reasonable probability that the compelled disclosure of a party's con- tributors' names will subject them to threats, harassment, or reprisals from ei- ther Government officials or private par- ties." Id. at 74, 96 S.Ct. at 661. William P. Hutcheson, one of HH & M's partners, submitted an affidavit dated April 15, 1981, in which he avers that if HH & M is compelled to file Form LM--21 and include therein all the information required by section 203(b), he fears that clients of the firm who are listed on the LM-21 Form will suffer reprisals and retaliation from private parties and government officials. Mr. Hutcheson cites several bases for his fear. He maintains that the Amalgamated Clothing Textile Workers Union, angered because it lost the election at Southern Silk Mills, intends to harm HH & M. Hutche- son argues that ACTWU, which Hutcheson avers "has engaged in numerous acts of violence in and around Chattanooga, Ten- nessee," will use the information contained in a Form LM-21 report to embarrass the firm's clients, with whom ACTWU has no dispute whatsoever "solely in an effort to harm Humphreys, Hutcheson & Moseley." Hutcheson suggests that ACTWU may use the LM-21 Form to compile an "enemies list" and urge its members to boycott the firms included in the list In addition, Hutcheson avers that the Secretary of La- bor may harass the clients listed on the LM-21 Form even though they had no deal- ings whatsoever with labor unions and even though Humphreys, Hutcheson & Moseley performed no persuader services for them." We fmd these allegations regarding the actions of the ACTWU and the Secretary of Labor to be speculation. Like the Mas- ter Printers court, "we do not believe that the evidence and allegations of first amend- ment infringement here constitute the sort of threat of physical harm and loss of employment found in NAACP I. Alabama and its pro_geny." 751 F.2d at 704. See also Donovan I. Master Printers Association, 532 F.Supp. 1140, 1148 n. 11 (N.D.III.1981) (court found that members' allegations fell far below the level of reprisals articulated in NAACP'. Alabama and its progeny), aff'd and adopted 699 F.2d 370 (7th Cir. 1983), cert. denied, — U.S. —, 104 S.Ct. 703, 79 LEd.2d 169 (1984). Because HH & M has failed to establish that the report requirements contained in section 203(b) as applied to it produce a "deterrent effect" akin to that present in NAACP, we conclude that the report re- quirements do not substantially burden HH & M's first amendment rights. B. [13,14) Although we determined that HH & M's allegations of the chill upon its first amendment rights are not substantial, we find that the chill is not inconsequential. Therefore, we must look further to deter- mine whether this disclosure legislation is narrowly tailored to serve a compelling governmental interest As the Buckley Court stated, "there are governmental in- terests sufficiently important to outweigh the possibility of infringement [upon first amendment rights], particularly when the 'free functioning of our national institu- tions' is involved." 424 U.S. at 66, 96 S.Ct. at 657 (quoting Communist Party'. Sub- versive Activities Control Board, 367 U.S. 1, 97, 81 S.Ct. 1357, 1411, 6 Lai-2d 625 (1961)). Among these compelling interests, holds Master Printers, are "deterring actu- al corruption" in the labor field and "bol- stering [the government's] own ability to investigate 'in order to act and protect.'" 751 F.2d at 707 (quoting Gibson I. Florida Legislative Investigation Committee, 372 U.S. 539, 544, 83 S.Ct. 889, 892, 9 LEd.2d 929 (1963)). Like the Master Printers court, we fmd that the government's compelling interest in maintaining harmonious labor re- EFTA00222935 1222 755 FEDERAL REPORTER, 2d SERIES lations outweighs the chill placed upon HH & M's exercise of its first amendment rights. C. We agree with the Fourth Circuit's con- clusion that the disclosures required by sec- tion 203(b) of the Act are "unquestionably 'substantially related' " to the govern- ment's compelling interest in deterring cor- ruption in the labor relations field. Master Printers, 751 F.2d at 707. Our conclusions are supported by the evidence of persuad- ers' track record of illegal conduct as devel- oped by the McClellan Committee Hearings and contained in the legislative history of the LMRDA. We find that the disclosure requirements aid employees in understand- ing the source of the information they re- ceive, tend to discourage abuse, reduce the appearance of impropriety and supply infor- mation to the Secretary that will aid in de- tecting violations. D. [15) Like the Master Printers court, we find that the persuader provisions are care- fully tailored so that first amendment free- doms are not needlessly curtailed. Id. at 708. We conclude, therefore, that HH & M's contentions that disclosures regarding clients for whom the firm performed no persuader activities have no relation to the government's compelling interest in pre- serving harmonious labor relations are without merit. Congress determined that only extensive financial disclosure by per- suaders would curb the abuses by these middlemen. S.Rep. No. 187, 86th Cong., 1st Seas. at 10. As the Master Printers court stated: In order to deter both actual corruption and the appearance of corruption, Con- gress concluded that it would be neces- sary to require the disclosure of a wide- ranging number of employers and activi- ties, even if it meant reporting activities that were not improper. Id. at 708. HH & M contends that the disclosure requirements do not conform closely to the government's compelling interest because the reports required by section 203(b) often are not filed until after an election takes place and thus do not serve the govern- ment's interest in maintaining laboratory conditions during labor elections. Al- though the required reports may not be filed until after an election, we find that these reports nevertheless serve the government's interest in ensuring fair la- bor elections. Requiring disclosure, even after the fact, will inhibit and expose illegal and unethical actions by persuaders that hamper employees in the exercise of their rights guaranteed by the NLRA. The re- ports also enable employees in the labor relations setting, like voters in the political arena, to understand the source of the in- formation they are given during the course of a labor election campaign. Past reports that disclose the interests of persuaders serve as a valuable source of information in current elections. In addition, the re- porting mechanism promotes industrial peace by ensuring the enforcement of the labor laws. The annual reports serve as a cross-check on the accuracy of the thirty day reports, and the annual reports notify the Secretary of the relationships between persuaders and employers which may give rise to the duties to file thirty day reports. We conclude that both the thirty day and the annual reports serve the government's compelling interest in maintaining antisep- tic conditions in the labor relations field. Therefore, we agree with the Fourth Cir- cuit's conclusion that the statute is not overly broad. Id. at 709-10. E. We have balanced the four factors set forth by the Master Printers court, at 704, and like the Fourth Circuit we hold that when the four factors of the Buckley bal- ancing test are carefully weighed, it is clear that the government's interests ad- vanced by the statute are compelling, the degree of infringement is minimal, the pur- pose of the statute is substantially related to its requirements, and the level of disclo- sure required is carefully tailored to the goals of the statute. We further point out that, in addition to Master Printers, every court that has con- sidered the issue has held that the report EFTA00222936 requirements contained in section 203(b) are constitutional. Marshall I. Stevens People and Friends for Freedom, 669 F.2d 171 (4th Cir.1981), cert dismissed sub nom. J.P. Stevens Employees Education Committee". Donovan, 455 U.S. 980, 102 SAX 1297, 71 LEd.2d 639 (1982), cert. de- nied sub nom. Ramsey I. Donovan, 455 U.S. 940, 102 S.Ct. 1432, 71 LEd.2d 651 (1982); Wirtz'. Fowler, 372 F.2d 315 (5th Cir.1966), overruled in part, Price I. Wirtz, 412 F.2d 647 (5th Cir.1969) (en Banc) ; Donovan'. Master Printers Asso- ciation, 532 F.Supp. 1140 (E.D.I11.1981), Gird and adopted, 699 F.2d 870 (7th Cir. 1988), cert denied, — U.S. -, 104 S.Ct. 703, 79 LEd.2d 168 (1984). The judgment of the district court is therefore AFFIRMED. In Re DeLOREAN MOTOR COMPANY, a Michigan corporation, Debtor. The UNSECURED CREDITORS' COM- MITTEE OF DeLOREAN MOTOR COMPANY. Plaintiff-Appellee, I John Z. DeLOREAN (83-1802); Cristina. a Nevada corporation; DeLorean Man- ufacturing Company; Logan Manufac- turing Company; Thomas W. Kimmer- ly, (83-1803), Defendants-Appellants, and DeLorean Motor Company, Inc. and Of- fice of the United States Attorney for the Central District of California, De- fendants. Nos. 83-1802, 83-1803. United States Court of Appeals, Sixth Circuit. Argued Dec. 4, 1984. Decided Feb. 27, 1985. Appeal was taken from an order of the United States District Court for the East- IN RE DeLOREAN MOTOR co. 1223 at. ea 715 F.24 1223 (1223) em District of Michigan, Philip Pratt, J., affirming a bankruptcy court order enjoin- ing the disposition of any proceeds of the sale of assets or stock of a company that had been allegedly acquired with assets that could ultimately be traced back to debtor and its subsidiaries and requiring that any such proceeds be deposited in an escrow account under the control of the bankruptcy court. The Court of Appeals, Cornelia G. Kennedy, Circuit Judge, held that (1) appeal was not rendered moot when the parties stipulated to entry of an order regarding the sale of the company; (2) Federal Rule of Civil Procedure govern- ing seizure of property did not apply to order of bankruptcy court; (3) bankruptcy court order complied with federal rules re- quiring court to set forth findings and con- clusions supporting a preliminary injunc- tion; and (4) testimony of examiner ap- pointed by bankruptcy court, in conjunction with balance of harms to the parties and public interest which weighed heavily in favor of trustee, supported issuance of bankruptcy court order. Affirmed. I. Bankruptcy 4=446(2) Appeal from order requiring any pro- ceeds from any sale of the assets or stock of company which was allegedly acquired with assets that could ultimately be traced back to debtor to be deposited in a escrow account under the control of the bankrupt- cy court was not rendered moot when par- ties stipulated to entry of a subsequent order regarding the sale of the company, since the subsequent order did not direct the proceeds of a sale of the company to be placed in escrow and, thus, Court of Ap- peals was in a position to grant effectual relief. 2. Bankruptcy a=s659(2) Order enjoining the disposition of any proceeds of the sale of the assets or stock of a company allegedly acquired with as- EFTA00222937