What Happens When the Feds Search Lawyers' Offices

August 15, 2001
Permission of Connecticut Law Tribune; by Tom Scheffey

'Taint Teams' safeguard client privilege

In a rare use of federal search power, agents executed warrants July 26 at the law offices of Waterbury, Conn., Mayor Philip A. Giordano, lawyer-lobbyist Jay Malcynsky in New Britain, Conn., and Carmody & Torrance in Waterbury.

Carmody managing partner Mark J. Malaspina said the firm was just one of "a large number of locations" that federal agents searched under a court order. He noted that "the U.S. Attorneys' office has made it clear that Carmody & Torrance is neither a target nor a subject of its investigation." Malcynsky did not return a call for comment, and the U.S. Attorney's Office in New Haven, Conn., declined to corroborate or comment.

A client's secrets in a law office are not the lawyer's to divulge. For this and other reasons, the office of the U.S. Attorney discourages searches, favoring simple requests or subpoenas.

When searches are done, they're supposed to go by the book: the U.S. Attorneys Manual. It has separate protocols for searching the office of a "subject attorney" and for searching "disinterested third parties."

SENSITIVE SEARCHES

David B. Fein, a partner at New Haven's Wiggin & Dana, teaches a course at Yale Law School on federal criminal investigations. He was also an Assistant U.S. Attorney in New York and has assembled search teams. Generally, Fein says, the less invasive approaches are preferred even for an ordinary business.

A law office search is far more sensitive, he says, because "tremendous privilege issues" are implicated. While "subject" lawyers are rarely searched, it is even more extraordinarily for "third-party" firms to be hit. "You could count the instances on one hand," he said.

Lately, Fein says, there has been a marked increase in law office searches, driven by greater Justice Department interest in white-collar crime, the technology of drug trade investigations and big health care fraud investigations.

In the search of Giordano's law office, an agent clad in protective coveralls reportedly took a rug into evidence, presumably in connection with the child sex charges that led to the mayor's arrest. The documents removed from the other law offices are likely to be part of a broader investigation of Waterbury municipal contracts.

In the case of the Carmody office search, a small group of agents arrived for a narrowly limited search, negotiated politely and took away about two bankers boxes of files after two hours.

In order to conduct a search that stands up to constitutional challenge, the search team has to have accurate knowledge of the documents' location.

FINE-TOOTH COMBING

One Hartford lawyer who witnessed such a search several years ago, said 12 to 15 agents pored over a three-story office from 7 p.m. until 2 a.m., drawing maps throughout of the locations where documents were found.

In a law office search, a team of agents and lawyers is used who are not active in the investigation. This insulates the investigative team from the potential "taint" of viewing information that's protected by the lawyer-client privilege. These searchers on the "privilege team" (or "taint team") segregate and seal documents and defer determination of whether documents are privileged to a "privilege lawyer" who makes on-the-spot judgments. Disputes over which documents are privileged or not may persist through trial and appeal.

Having a federal defense lawyer present as early as possible in the search can be invaluable, said Harold J. Pickerstein, a white-collar defender with Pepe & Hazard's Southport, Conn., office. "It's a tremendous advantage -- in part to see that they don't exceed the scope of the warrant," he said. No advance warning is given, so the lawyer has to be able to arrive on short notice.

During the search, said Pickerstein, "there are judgments being made at every turn, and your lawyer can keep some rein on the agents who are searching." He was once notified by beeper to rush to an IRS search of high-profile grocer Stew Leonard's offices, where he made a critical difference by persuading agents to not take away computers that were vital to keeping the stores open.

A law office search is only appropriate "when there is a strong need for the information or material and less intrusive means have been considered and rejected," according to the U.S. Attorneys manual.

The fact that searches were used in the Giordano case signals that prosecutors feared evidence was in jeopardy.

The manual requires the government to decide that anything less severe would "substantially jeopardize the availability or usefulness of the materials sought." They must have approval from Washington-level supervisors who agree that seizing the evidence is "substantially important to the investigation."

Copyright © 2001 NLP IP Company. All rights reserved.

This article republished with permission from law.com.