When Lawyers Get Too Close to Clients

Cherry Hill, New Jersey, isn’t exactly the inner city, a hotbed of crime.  But the feds think that there’s one spot in lovely suburban Cherry Hill that may be crime-central for Little Nicky Scarfo and his Philly crew.  The problem is that spot happens to be the law office of Donald Manno.  According to this law.com post from the NJLJ,

A federal judge has given prosecutors the go-ahead to review computer records seized from the office of a criminal defense lawyer, even if it means looking at files of clients who were not targets of the search.

U.S. District Judge Robert Kugler says the procedure proposed by prosecutors for the review of the records provided adequate safeguards to protect other client files and privileged materials.

Kugler’s ruling stems from a May 8 search of Donald Manno’s Cherry Hill, N.J., law office by FBI agents executing a warrant that authorized the seizure of documents from Aug. 1, 2006, to date that pertained to 43 individuals and entities, including alleged organized crime figure Nicodemo Scarfo.

Whenever the office of a criminal defense lawyer is the subject of a search warrant, alarms go off.  The implications are always the same, with the obvious violation of privilege and the impact on other, uninvolved clients.  Silly people respond that others can just move to suppress for any evils that might accrue, but realistic people know that there’s no way to figure out who sees what or how they use it.  There’s no way to prove harm, and everything boils down to rhetorical, and losing, arguments.

My ilk will go on auto-pilot and pound the keyboard exclaiming how these searches, where the government comes in, seizes everything in sight and sorts it all out later when they can examine every file at its leisure.  This blunderbuss approach has been condemned by North Caccalacca criminal defense lawyer Bobby Frederick and West Virginia criminal defense lawyer John Bryan, and their concerns are well-founded.

The problem remains, however, when a lawyer gets too close to his clients, such that he becomes a party to their enterprise.  I am not saying this is the case with Donald Manno, as I know nothing whatsoever about him.  But I do know that this is true of others I’ve known over the years.  It happens.

The law office, by virtue of privilege, is turned into a “safe-house” of sorts, where information and evidence can be placed beyond the reach of law enforcement.  Lawyers should never allow themselves to become embroiled in such measures, but it can happen slowly, and as part of the lawyer’s good-will gesture toward good clients.  Only afterward can one see how deeply involved the lawyer has become in the criminal enterprise.  The lawyer never meant for it to happen that way.

So what is a court to do?  In the Manno case, the court approved the following:

The process involves use of a so-called “taint team” or “filter team,” which comprises an FBI agent and lawyer who are not part of the prosecution team, to screen the seized files. First, an FBI agent will conduct a responsiveness review to determine whether the files are within the scope of the warrant.

Those deemed responsive will then go through a privilege review by Assistant U.S. Attorney Matt Smith, who will turn over nonprivileged items to the prosecution team. For possibly privileged documents, Smith is to decide whether the privilege has been waived or the crime-fraud exception applies. If he believes there is a waiver or exception, Smith is to “meet and confer” with Manno to try to resolve the issue.

If they cannot agree, Smith can ask the court to rule before turning the material over to the prosecution team.

This strikes me as a disaster at every turn.  It places privilege decision-making into the hands of an FBI agents and prosecutor, even if not the prosecutor who has sought the evidence.  Of course, that means the agent and prosecutor still get to see everything they want, privileged or otherwise.  This demonstrates a huge misapprehension of privilege; It’s not the “taint team’s” right to breach someone else’s privilege.

Then, if the prosecutor has a doubt, he’s to “meet and confer” with the defense lawyer.  Since when is it the prosecutor’s choice, and how can Manno agree to a waiver under any circumstances.  It’s not his privilege to waive, any more than it’s the prosecutors.

And finally, unresolved issues go before the judge, who then gets his hands on the privileged evidence, reads it, tries not to spill coffee on it, fondles it between thumb and forefinger, and then decides.  Too late.  He’s already seen it.  This strikes me as a kinda obvious fly in the ointment.

While the favored response to this governmental need to see stuff they shouldn’t is to just say no, reality is that judges are increasingly granting prosecutors demands for a warrant.  Given that the lawyers conduct may well justify the government’s general position that the lawyer is in possession of information or evidence that is not privileged, the likelihood of a wholesale prohibition on searching law offices is slim.  So is there a better way?

I believe there is.  Rather than put a government agent and prosecutor into place as the arbiter of privilege for the clients, the court should appoint a Special Master to conduct the first level of scrutiny.  The Special Master should be a criminal defense lawyer with whom the court has confidence, based upon the lawyer’s experience and integrity, that he will conduct his work as an honest broker. 

In the best of circumstances, the Special Master will be someone who both sides, prosecution and defense attorney, can agree upon.  If not, then the court will appoint someone subject to the arguments of both sides as to the qualifications for the performance of the duty.

It would be anticipated that the Special Master might be a former prosecutor who has come over from the dark side and racked up at least five years experience as a criminal defense lawyer, sufficient to remove the taint of being too closely aligned to the prosecution to confuse his responsibilities. 

The Special Master will serve as a buffer between the government and the lawyer.  While the privilege is lost to the Special Master, itself not something that should be taken lightly, it’s far better than having an FBI agent and federal prosecutor holding all the cards.  This procedure seems to present the best compromise of a bad situation, and hardly seems rather easy to put into place.

I realize that some of my brethren will berate me for taking a position that doesn’t protect the privilege of clients to my dying breath, but given the realities of what is happening, I would rather find a way to reduce the outrageous level of intrusiveness of having the government rifling through my desk drawers than a trusted neutral.  Yes, it’s half a loaf.  But sometimes that’s the best we can do.

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