Attorney-Client Privilege, Taint Teams, and Crime

[Sage_Rat]

A prosecutor has successfully received a warrant against an attorney and his client. The police raid the attorney’s office, pick up all of his possessions, and have them to a taint team for review.

As the taint team reviews these materials, what restrictions are they under?

In general, as I understand it, if further crimes are discovered as part of an investigation, despite those crimes not being part of the warrant that brought them to light, they are still actionable.

Is this true, as well, with the taint team? As they go through documents, do they have to refrain from reading a document any further past the point where they realize that it is not between the attorney and the target client? Or, can they read it through all of the way and it says, “Hey, Mr. Attorney, what’s the best way to commit fraud so that I’m legally covered?”, then they can open a new case?

If they find a document between the attorney and the target client that isn’t related to the warrant’s requested data but still seems to be related to criminal activity, can they pass that on anyways?

If they are aware, for example, that the attorney and client were separately being investigated for working with Mexican cartels, but none of those activities had been part of the warrant and none of the documents viewed were clearly discussing illegal activities, but were clearly communications between the attorney and the Mexican cartels, would they be able to pass those materials to the team that was investigating that subject or otherwise be able to do anything to help that team on that front?

[RealityChuck]

I believe that the warrant spells out exactly what the taint team looks for. It might be something like “Documents between the lawyer and his client, during this time period, referring to X.”

If they accidentally find something criminal outside the scope of the warrant, they have to put it back and not show it to the prosecuting attorney. They probably go by the subjects instead of reading them from start to finish, from a logistical standpoint alone.

[Tired_and_Cranky]

It’s complicated. The first question is: Is the lawyer a suspect, subject, or target of the search? The Department of Justice guidelines treat searches of “subject” attorneys different than those of “disinterested” third-party attorneys.

If the attorney is a subject of the search, Section 9-13.410 of the U.S Attorneys’ Manual applies. See, here: 9-13.000 - Obtaining Evidence | JM | Department of Justice

In such cases, the procedures generally call for a “privilege team” (seemingly also referred to as a “taint team” by the press) of lawyers who are not otherwise involved in the underlying investigation to help protect attorney-client privilege. The privilege team must have “procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team.”

Under the US Attorneys’ Manual, the affidavit filed with the court to obtain the search warrant being executed “may attach any written instructions or, at a minimum, should generally state the government’s intention to employ procedures designed to ensure that attorney-client privileges are not violated.” This affidavit can be viewed as a promise to the court that the people executing the search warrant will protect privilege in the way described in the affidavit. By swearing that the affidavit (and their promises) are true, it imposes real limits on the scope of the search and how the materials seized can be reviewed.

The procedures described in the warrant affidavit are supposed to consider things like:

[ul]
[li]Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.[/li][li]Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.[/li][li]Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm’s operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.[/li][li]Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).[/li][/ul]

So, the privilege team may review the documents itself. Alternatively, the documents may be reviewed by a judicial officer or a special master (essentially, a court-appointed independent person), who will then give only those documents that are not privileged back to the Department of Justice. I understand that the most common case is for the privilege team to review the documents itself.

Embedded in these procedures is the idea that only documents that are not privileged may be admitted into evidence against the subject attorney or his client. Furthermore, documents outside the scope of the warrant (i.e., documents that pertain to “innocent clients”) can’t be used against them.

One of the important exceptions to attorney-client privilege in such cases is the “crime-fraud exception.” Communications between an attorney and a client that are designed to either commit a crime or to cover one up are not privileged.

[jasg]

@Sage_Rat

Or, can they read it through all of the way and it says, “Hey, Mr. Attorney, what’s the best way to commit fraud so that I’m legally covered?”, then they can open a new case?

If they find a document between the attorney and the target client that isn’t related to the warrant’s requested data but still seems to be related to criminal activity, can they pass that on anyways?

IANAL but I have read that if the taint team encounters any evidence of other crimes, that evidence can trigger another investigation.

@New York Times

And the law is clear: If investigators executing a lawful warrant seize evidence of additional crimes, they may use that evidence. Thus Mr. Trump and Mr. Cohen, with their catastrophically clumsy handling of the Daniels affair, may have handed Mr. Mueller devastating evidence.

[Sage_Rat]

@Tired_and_Cranky

It’s complicated. The first question is: Is the lawyer a suspect, subject, or target of the search? The Department of Justice guidelines treat searches of “subject” attorneys different than those of “disinterested” third-party attorneys.

If the attorney is a subject of the search, Section 9-13.410 of the U.S Attorneys’ Manual applies. See, here: Justice Manual | 9-13.000 - Obtaining Evidence | United States Department of Justice

In such cases, the procedures generally call for a “privilege team” (seemingly also referred to as a “taint team” by the press) of lawyers who are not otherwise involved in the underlying investigation to help protect attorney-client privilege. The privilege team must have “procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team.”

Under the US Attorneys’ Manual, the affidavit filed with the court to obtain the search warrant being executed “may attach any written instructions or, at a minimum, should generally state the government’s intention to employ procedures designed to ensure that attorney-client privileges are not violated.” This affidavit can be viewed as a promise to the court that the people executing the search warrant will protect privilege in the way described in the affidavit. By swearing that the affidavit (and their promises) are true, it imposes real limits on the scope of the search and how the materials seized can be reviewed.

The procedures described in the warrant affidavit are supposed to consider things like:

[ul]
[li]Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.[/li][li]Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.[/li][li]Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm’s operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.[/li][li]Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).[/li][/ul]

So, the privilege team may review the documents itself. Alternatively, the documents may be reviewed by a judicial officer or a special master (essentially, a court-appointed independent person), who will then give only those documents that are not privileged back to the Department of Justice. I understand that the most common case is for the privilege team to review the documents itself.

Embedded in these procedures is the idea that only documents that are not privileged may be admitted into evidence against the subject attorney or his client. Furthermore, documents outside the scope of the warrant (i.e., documents that pertain to “innocent clients”) can’t be used against them.

One of the important exceptions to attorney-client privilege in such cases is the “crime-fraud exception.” Communications between an attorney and a client that are designed to either commit a crime or to cover one up are not privileged.

You’ve basically written the same thing as everyone in the media has written, and which does not answer any of the questions I asked.

[md2000]

IANAL, but thanks to this site and Law & Order (and maybe a real lawyer can clarify)

-ACPriv does not cover conspiracy between the lawyer and the client, nor does it cover situations where the lawyer commits a crime.
-Privilege is to allow the client to tell the lawyer whatever is necessary to mount a defence in present or future case (i.e. case already past but not yet charged, brought to trial).
Not sure how this impacts, for example, a lawyer’s PI going on directions given by the client to the lawyer.
However, it definitely should not cover situations where the lawyer’s papers indicate he (the lawyer) hired someone who then tried to intimidate someone else.
-A lawyer cannot discuss forthcoming crimes; IIRC, he is obliged to report those?
At the very least, keeping quiet would lose him his license.
I assume what a lawyer says or emails a third party is fair game? Any correspondence to third parties (i.e. “here is a copy of your NDA, please sign”) is not privileged.