4th Circuit Says Fed Taint Team Stinks

Before the raid on Trump lawyer turned defendant turned snitch turned inmate, Michael Cohen, the idea of the feds raiding a law office to rifle through the files would offend the sensibilities of most rational people. But since Cohen was Trump’s lawyer, rational people were hard to find, and since Cohen turned out to be less than the poster boy for legal integrity and copped a plea, cries of impropriety rang hollow.

So now raiding law offices, particularly the law offices of real, actual, criminal defense lawyers is no big thing?

A prominent Baltimore defense lawyer has been accused of helping drug dealers commit and cover up crimes, and a second has been accused of obstructing justice on behalf of the first, who is a client, according to documents filed in a federal appeals court.

Neither Ken Ravenell, the first attorney, nor Joshua Treem, the second, has been charged with a crime.

There is a fine line between defending people accused of crime and enabling defendants to commit crime. One is the job. The other is a crime. But from the outside, the line can be very hard to see. After all, doing too good a job at the former can easily be confused with engaging in the latter, particularly in the eyes of the feds who refuse to believe that effective lawyers aren’t doing something improper.

The prosecutors accused Ravenell of “assisting drug dealers [to] sell drugs, laundering the proceeds of drug dealers and then attempting to cover up their crimes by obstructing investigations of the drug dealers,” and said their investigation of Ravenell was “frustrated by the obstructive conduct” of Treem.

Obstructing the feds from prosecuting and convicting clients is pretty much the job description of a criminal defense lawyer. Were we supposed to make it easier, maybe facilitate our clients’ prosecution?

So the feds did what the feds do, raided the law offices, seized computers, seized files, went on a fishing expedition to find evidence to prove that they were totally right to hate the lawyers. Except when you grab it all, what you end up with is every client’s information. This wasn’t Michael Cohen playing faux lawyer, but real lawyers with lots of real clients with tons of confidential communications and information, and the feds grabbed it all because, well, who knows what they will find?

“If clients and their lawyers believe that prosecutors may one day sift through their communications in searches involving unrelated matters, clients are less likely to be candid with their lawyers, and lawyers will hesitate before writing down what they need to write down,” the firm argued in its appeal. “This is unfair to clients, and harms the attorney-client relationship. This case involves a gross violation of these principles.”

But the feds’ view is that it’s all fair, it’s all safe, because they put up the politically incorrect “Chinese Wall.

The government had been using a so-called “taint team,” federal lawyers and agents tasked with sorting through documents to make privilege decisions, until the Fourth Circuit issued a stay on the process in June.

The AUSAs doing the direct investigation against the lawyers aren’t allowed to see files until the “taint team,” other AUSA and federal agents, read through them and decide that they aren’t privileged. To the feds, this is what fairness looks like. To any other sentient person, there are some flaws in their approach.

First, while the AUSAs running the investigation might not see the files of unrelated clients, which are absolutely entitled to privilege, they get seen by a different group of prosecutors and agents, as if the clients whose confidences are lost give a damn which group of AUSAs and agents read through their confidential communications.

Second, the decision as to what’s privileged and what isn’t resides in the hands of prosecutors and agents, as if they are the folks who should be trusted to make such decisions. It might be a bit cynical to say, but perhaps a Fibber isn’t the person most inclined to protect the privileged communications of a criminal defendant.

James P. Ulwick, an attorney with the Baltimore-based Kramon & Graham, argued Tuesday before a Fourth Circuit panel on behalf of the unnamed firm. He claimed the taint team is an overreach and the judges should take steps to assign a third party arbiter instead.

“Almost all of the emails have no connection to client A,” Ulwick said, using the pseudonym for one of the subjects of the search. “This is a multi-lawyer law firm. Not only do emails reference client A and lawyer A, they also reference other lawyers and their clients.”

Even a third party arbiter presents a problem, as clients tend not to really appreciate outsiders knowing their deepest secrets. It’s pretty much a foundational thing for criminal defendants that their private information remain in the hands of their lawyers. But at least a third party arbiter is better than Agent Smith and AUSA White. The government, of course, disagreed.

“After the search, did they ask for [the firm’s] client list?” the judge asked moments after the government’s opening statement.

“The taint team was going to talk to the clients individually,” replied Assistant U.S. Attorney Derek Hines from the Baltimore U.S. Attorney’s office.

“The government can’t come in and say, ‘Tell me who your clients are,” bellowed [Circuit Judge Robert] King. “The taint team is authorized to contact clients and ask for [privilege] waivers, is that right?”

“This is standard DOJ protocol,” Hines replied, abbreviating the U.S. Department of Justice.

If you hate the idea of the feds reading through your defense file, you’re probably not entirely comfortable with the feds knocking on your door for a nice chat about your lawyer, particularly since your lawyer won’t be there to prevent the feds from doing their voodoo.

So what did the Fourth Circuit make of this “standard DOJ protocol”? They summarily called bullshit.

[T]he Court reverses the district court’s denial of the Law Firm’s request that review of the seized materials be made by the magistrate judge, rather than by the Filter Team. Accordingly, the duties and functions previously assigned to the Filter Team are hereby reassigned to the magistrate judge.

No client of a criminal defense lawyer is going to be thrilled by the prospect of a Magistrate Judge reading about his most unsavory moments, and whether there is any justification for the raid, the seizure, the compromise of undeniably unrelated clients to whatever it is the feds believe is going on, at least the eyeballs will belong to a mag rather than a fed. It may not be enough, but it’s far better than the “standard DOJ protocol.”

9 thoughts on “4th Circuit Says Fed Taint Team Stinks

  1. B. McLeod

    Based on the court’s ruling, it appears the Taint Team has already been displaced by the Filter Team, which is probably the group in charge of keeping investigators safe if they have to travel to Flint, Michigan (or smoke Camels).

    Reply
  2. Richard Kopf

    SHG,

    I will be very interested in reading the Fourth Circuit’s full opinion when it comes out. In particular, I will be interested in knowing whether the use of DOJ taint teams are categorically prohibited in the Fourth Circuit in favor of Magistrate Judges (or Special Masters). I will also be fascinated to see whether the activities of the DOJ folks, taint team and separate investigators, in this particular case did something (unusually?) untoward. Anyway, for reasons of my own, I appreciate the heads up and hope you will continue to follow the story on SJ.

    All the best.

    RGK

    Reply
    1. SHG Post author

      Based on the oral argument, it would appear that Judge King was a bit incensed. Whether it was the specifics of this case or the general protocol isn’t clear, but I have my druthers.

      Reply
  3. MonitorsMost

    On one hand, I’m very happy that the court called out something that was bat-poop crazy as what it was and put a stop to it. But I do not like that I was pleasantly surprised that the court did the right thing.

    Reply
  4. Fubar

    “The government can’t come in and say, ‘Tell me who your clients are,” bellowed [Circuit Judge Robert] King. “The taint team is authorized to contact clients and ask for [privilege] waivers, is that right?”

    “This is standard DOJ protocol,” Hines replied, abbreviating the U.S. Department of Justice.

    Standard protocol: Our Taint Team roadies
    Will filter seized files. They aren’t toadies.
    Circuit Four: So the devil
    Keeps things on the level?
    Quis custodiet ipsos custodes?

    Reply

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