The attorney-client privilege, which can apply in both civil and criminal matters, is the oldest common law privilege in the American judicial system. That privilege protects confidential communications between an attorney and client and, by 1915 was “too well known and…too often recognized by textbooks and courts to need extended comment now.” Today, all attorneys communicate with clients using technological advancements that U.S. Supreme Court Justice Day could not fathom more than 100 years ago.
Despite these changes, defense attorneys continue to allow the government to use its own personnel to sift through the very material that it wants to review using a “taint team.” A taint team consists of other prosecutors and agents who are supposed to review the fruits of a search warrant, including a treasure trove of privileged data, and remove information that should be protected by the attorney-client privilege. The taint team is not supposed to share privileged materials with prosecutors and agents on the “prosecution team,” who are usually in the same agencies. Sadly, an overwhelming number of judges and lawyers trust this outdated method which offers no protection to prevent the sharing of privileged information with the prosecution team. Michael Cohen’s lawyers, rightfully, are challenging this outdated approach to trusting the government.
After government prosecutors and agents violated the trust placed in it in cases throughout the United States and in our own cases, I wrote an article suggesting the law needed to evolve to protect attorney-client privileged information. The danger is that the government can use improperly obtained information and use it to build a case in secret – using the Grand Jury. In 1988, U.S. Supreme Court Justice Marshall wrote the grand jury’s strict secrecy requirement means government misconduct, including intrusions into the attorney-client privilege, will rarely be exposed. In 2014, a federal judge in New York opined, when federal prosecutors said they wanted access to attorney-client communications but did not care about the substance of them: “That’s hogwash. You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”
Cohen’s lawyers learned the taint team process was going to be followed because “that’s how it is always done.” They immediately filed an emergency motion to stop the process and appoint a special master. A special master is a neutral third-party a judge appoints to determine what should be protected by the attorney-client privilege and what should be provided to prosecutors. As is standard in these disputes, federal prosecutors objected to the process because it would unnecessarily delay their work. Ironically, federal prosecutors work for the only Cabinet office dedicated to an ideal – Justice; not Expediency.
While this case may not shift how the Justice Department reviews attorney-client privileged data or how judges deal with special master requests, it is important to remember that attorneys aren’t the only ones who maintain attorney-client privileged materials. Clients often do too, meaning government agents often obtain privileged data without searching an attorney’s office. Without challenging the government about how it searches and uses privileged data, the government is free to use attorney-client privileged materials without fear that it would come to light.
Lawyers must understand the Constitutional and practical implication of ensuring the government does not improperly access privileged information to develop an investigation using secret grand jury proceedings. One of the first questions any lawyer should ask after a search warrant is executed is whether the seized data contained privileged materials. If so, the “we’ve always done it this way” approach the government takes should be aggressively challenged.
The government should not be permitted to breach the attorney-client privilege and should not be permitted to utilize the grand jury secrecy provisions to hide the breach of the privilege. The constitutional right to be represented by counsel is greatly diminished if the government is allowed access to the privileged communication between client and attorney.
It is imperative to retain counsel experienced in national security and criminal investigations to navigate the perils you face. If you believe you are under federal investigation, or if you are an attorney with a client under federal investigation, call us immediately at (407) 901-5852.
