In a decision out of the Southern District of New York, the heartland of wiretaps, Judge Robert Patterson refused to suppress the recording of defendant Michael Lamond.  So what, you say?  Lamond was a lawyer, and the recordings were of his communications with his client, now co-defendant, Aron Chervin.

Without necessarily holding that the communications were privileged, Judge Patterson held that the burden was on the government to show that the crime-fraud exception applied:

The Second Circuit has held that the party seeking to invoke the crime-fraud exception must prove there is a “factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.”

Nothing particularly controversial about crime-fraud exception, since lawyers are no more entitled to engage in crime with their clients than anyone else.  Nor in placing of the burden on the government, rejecting the government’s argument that it was the defendant’s burden to prove that his communications weren’t made for the purpose of committing a crime.  But what follows raises some concerns:

Defendant Lamond argues that he is “clearly providing legitimate legal services to his client by consulting with him concerning financing, no-fault collections, and arbitrations.” However, the attorney-client privilege will not attach to any communications in furtherance of a crime or fraud regardless of the attorney’s lack of knowledge that he is being consulted in furtherance of that crime or fraud.

Therefore, Lamond’s knowledge of whether a fraudulent scheme was afoot is not relevant to the application of the crime-fraud exception to Lamond’s interactions with Aron Chervin.

In other words, Lamond may have had no clue whatsoever that he was engaged in communications that served any criminal or fraudulent purpose under the sun and, well, who cares.  If the client, Chervin, had a criminal purpose behind his questions, and even if the questions were otherwise completely neutral, Lamond is out of luck.

Judge Patterson spells it out in greater detail at the end of his decision:

Lamond claims that the conversations he is seeking to suppress took place in his capacity as legal counsel to Mr. Chervin and involved consultations regarding financing, no-fault insurance collections and arbitration matters. Specifically, Mr. Lamond states that the conversations are “on their face conversations between a lawyer and his client regarding legal advice in connection with their routine ongoing business transactions relating to no-fault insurance claims.” There is nothing in the seized conversations, according to Mr. Lamond, that gives any “indication that they are related to the commission of a fraudulent act or any other offense.” Id. The conversations do show, however, that the Government has probable cause to believe that Aron Chervin intentionally and knowingly utilized the services of Michael Lamond to further Chervin’s illegal scheme to obtain funds by submitting fraudulent medical bills, traveling in interstate commerce, to no-fault insurance carriers.

V. Conclusion

There is probable cause to believe that Aron Chervin was knowingly involved in a complex mail or wire fraud scheme to defraud no-fault insurance providers. This suppression motion need not decide whether Defendant Lamond had actual knowledge of the fraudulent activity during his conversations with Defendant Aron Chervin. The crime-fraud exception to the attorney-client privilege applies to this set of facts.

This decision suggests that lawyers have a problem and, given the nature of our clientele, criminal defense lawyers have a bigger problem than others.  That we may neither know, nor have reason to know, what motives are behind a question from someone seeking our advice and counsel, our performance of our function in a facially lawful and proper manner could land us square in the middle of our clients Title III investigation, and perhaps sitting next to him at trial as co-defendant rather than lawyer.

This makes perfect sense legally, as the decision is limited to suppression of the wiretapped conversations, and Lamond’s indictment, assuming that his advice and counsel were indeed as legitimate as claimed and provided neither knowledge, nor reason to believe, that he was aiding in the commission of a crime.

Where it becomes a problem is that the conversations, lawfully wiretapped per the crime-fraud exception, are now subject to scrutiny through the eyes of the government.  You know, that would be the same government whose understanding of the recorded conversation between target husband and wife reads:

Target:  Do you want me to stop on the way home and get some milk?
Spouse: That would be great. Could get a quart of whole milk and a quart of skim?
Target:  Will do.

Agent:  Based upon my training and experience, this was a conversation about the sale of large quantities of cocaine.

Certainly, clients have questions from time to time that would appear to relate to how to run their business more efficiently and effectively, including the elimination of unseemly disruptions in the supply line.  Yeah, these were never conversations that you were allowed to have, and it’s critical that lawyers not get sucked into an involvement in matters that clients might very much appreciate but are flagrantly criminal.  We are criminal defense lawyers, not criminals. We cannot do this.

But when the issue isn’t clear, or worse still, when the conversation is completely appropriate, yet for reasons wholly outside our knowledge and control, relate to a criminal transaction, we can very easily find ourselves in the middle of a firefight without the slightest clue what we did wrong.

And this is fine, since we need not have any clue about wrongdoing to become a proper target of a Title III wire.  I figured you would want to know.