Lawyer’s Office Is Unusual Target for Federal Agents Typically, attorney-client communications are protected from disclosure By Jacob Gershman and Joe Palazzolo
https://www.wsj.com/articles/lawyers-office-is-unusual-target-for-federal-agents-1523325235?mod=cx_picks&cx_navSource=cx_picks&cx_tag=poptarget&cx_artPos=2#cxrecs_s
The Manhattan law office of Michael Cohen, President Donald Trump’s personal attorney, made for an unusual target for federal agents, who raided it Monday morning.
Typically, federal agents need special permission to comb the files of an attorney, whose client communications are generally protected from disclosure, legal experts said. To obtain a federal warrant, Justice Department officials need a special finding that an attorney’s office contains crucial evidence, said Christopher Slobogin, a criminal-procedure expert at Vanderbilt Law School.
It is unclear if agents targeted client files or were searching for business records falling outside the scope of attorney-client privilege, though the lines separating them aren’t always clear. Steve Ryan, a lawyer for Mr. Cohen, said Monday that the search had resulted in the “seizure of protected attorney-client communications between a lawyer and his clients.”
When searching the offices of an attorney who is a subject of an investigation, “prosecutors are expected to take the least intrusive approach,” according to the U.S. Attorneys’ Manual, which instructs prosecutors to consider a subpoena before resorting to a search warrant.
The raid carries risks for the Justice Department, as well. The attorney-client privilege generally shields interactions between lawyers and clients from being deployed as evidence against a defendant. If government lawyers use privileged communications to build their case, a court could deem their entire prosecution tainted.
To guard against that, the Justice Department uses what are known as “taint teams,” groups of government attorneys who are segregated from Federal Bureau of Investigation agents and prosecutors involved in the investigation, said Daniel Goldman, a former assistant U.S. attorney for the Southern District of New York. Taint teams are charged with sifting through seized files and determining what prosecutors can use.
Courts have approved the use of taint teams, but criminal defense lawyers have long criticized the practice as an example of the fox guarding the chicken coop. In rare cases, a judge could appoint an independent special master to review the files or examine seized documents him or herself.
Attorney-client privilege is intended to allow lawyers to give robust legal advice without worrying about incriminating a client. But attorney-client information may not be protected if the communications were in service of an illegal act, under the “crime-fraud exception” to the privilege. CONTINUE AT SITE
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