Monday, March 30, 2009

Search Warrants and the Attorney-Client Privilege

A recent case from Georgia illustrates how federal prosecutors deal with the task of preserving attorney-client privilege when a search warrant is executed at a law office.

The case is U.S. v. Sutton (U.S. District Court for the Middle District of Georgia 2009), and here are the facts that led to the search:
Berrien Sutton is an attorney in Homerville, Georgia at the firm of Sutton & Associates, P.C. (`S & A’). On July 17, 2008, Sutton was indicted for one count of honest services fraud conspiracy, several counts of mail fraud, and one count of conspiracy to commit mail fraud. The charges against Sutton followed a federal investigation into allegations of official corruption in the Alapaha Judicial Circuit in South Georgia. Among other things, the Indictment charges that Brooks E. Blitch, III, a former superior court judge in the Alapaha Circuit, created unnecessary government positions and appointed Sutton and his wife, Lisa, to those positions to help them get out of debt. In return, Blitch allegedly received free legal services from Berrien Sutton.
U.S. v. Sutton, supra.

In June, 2008, an FBI agent applied for a warrant to search the S&A office. When an officer applies for a search warrant, he/she submits an affidavit (a statement made under oath) explaining why he/she wants the warrant, why there is probable cause to justify the issuance of the warrant, where he/she wants to conduct the search and what, exactly, he/she wants to search for.

In the affidavit the agent submitted for the S&A office, he said “there was probable cause to believe that evidence of a conspiracy to commit mail fraud was located at S & A.; specifically, evidence that Blitch appointed Sutton and his wife to unnecessary government jobs in return for free legal services.” U.S. v. Sutton, supra. The information the agent would have included in the affidavit would have been much more detailed and specific than this statement implies; it’s just a summary.

The court found that the affidavit and the rest of the application justified the issue of the search warrant, and so gave the FBI agent his warrant. It authorized him and the agents assisting him to search for items that included the following:
(a) Documentation in whatever format pertaining to the representation of Blitch Ford, Brooks E. Blitch III, Margaret Peg Blitch, and/or Brett Blitch, by Sutton and/or Sutton and Associates, P.C. (SAP), including but not limited to contracts for services, payment records, letters or other memorandum outlining services to be performed and fee agreements.

(b) Records in whatever format pertaining to billing records for Blitch Ford, Brooks E. Blitch III, Margaret Peg Blitch, and/or Brett Blitch.

(c) Records in whatever format pertaining to contingency agreements with Blitch Ford, Brooks E. Blitch III, Margaret Peg Blitch, and/or Brett Blitch.

(d) Computer hardware, meaning any and all . . . electronic devices capable of data processing. . . .
U.S. v. Sutton, supra.

The agents executed the warrant and seized evidence. After he was indicted, Sutton moved to suppress the evidence they seized at the S&A office. We, though, are only concerned with part of that evidence: evidence implicating the attorney-client privilege.

That evidence seems to have fallen into two categories. The first consisted of a “printout of an email that Sutton sent to Withers, his defense attorney in this criminal case.” U.S. v. Sutton, supra. The email was clearly protected by the attorney-client privilege because it was a communication by a client (Sutton) to his lawyer (Withers) that apparently dealt with the scope of the representation (i.e., dealt with issues in the case against Sutton).

The other category consisted of “documents that related to Sutton's representation of the Blitches.” U.S. v. Sutton, supra. Those documents may also have been protected by the attorney-client privilege; they dealt with information pertaining to Sutton’s (a lawyer’s) representing the Blitches (his clients) on various legal matters. The privilege could apply to these documents even though they had nothing to do with the case against Sutton; as long as material relates to the substance of an attorney’s legitimate work on behalf of his clients, it’s protected by the privilege. (Material won’t be protected by the attorney-client privilege if the work the attorney was doing involved assisting the clients with committing future crimes, but that exception may or may not have applied here.)

Sutton argued that the use of the search warrant to find and seize the email printout and the documents pertaining to his representation of the Blitches violated the attorney-client privilege and therefore required the suppression of this evidence. The federal district court disagreed.

To understand why the court disagreed, we need to review the procedure the agents who executed the warrant used to prevent the privilege from being compromised. The U.S. Attorney’s Manual, which is a statement of policies federal prosecutors and federal agents are to implement, deals with law office searches. It says “[p]rocedures should be designed to ensure privileged materials are not improperly viewed, seized or retained during the course of the search.” U.S. Attorney’s Manual § 9-13.240. It also says that
[w]hile every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the . . . privilege and to ensure that the investigation is not compromised by exposure to privileged material . . ., a "privilege team" should be designated, consisting of agents and lawyers not involved in the underlying investigation.
U.S. Attorney’s Manual § 9-13.240. That is exactly what the agents did in the Sutton case. The agent’s affidavit provided
for a `taint team’ procedure to protect . . . the attorney-client privilege. This . . . search would be conducted by a `privilege search team’ that consisted of . . . agents who had no previous involvement in the . . . investigation. The team would be assisted by a `privilege prosecutor’ with no knowledge of, or involvement in, the investigation. The privilege prosecutor would be responsible for answering any legal questions that arose during the search. The privilege search team would deliver all seized evidence to the privilege prosecutor, who would deliver to the prosecuting attorneys all non-privileged documents. All privileged documents and documents outside the scope of the warrant would be returned to S & A by the privilege prosecutor.
U.S. v. Sutton, supra. The district judge therefore denied Sutton’s motion to suppress because the investigators followed this procedure:
[T]he agents delivered directly to the privilege attorney all evidence seized from S & A. The privilege attorney kept the documents in sealed envelopes and reviewed them to determine whether they were privileged. At no time did any prosecuting attorneys view any privileged material. For these reasons, the Court finds that Sutton has failed to demonstrate that the search violated his attorney-client privilege.
U.S. v. Sutton, supra.

I don’t know how many computers and how much data they had to go through, but the Sutton case seems to be essentially a simple case, at least in terms of applying the taint team procedure. In 2002, Lynne Stewart, a criminal defense attorney in New York City, was the target of a terrorism investigation. She had represented Sheikh Abdel Rahman, who was convicted of being involved in the 1995 World Trade Center bombing; the government suspected Stewart was conspiring with the incarcerated Sheikh and was involved in other crimes, so it got a warrant to search her law office.

That search was especially complicated because her office was “part of a larger suite,” which she shared “with four other solo practitioners.” U.S. v. Stewart, 2002 WL 1300059 (U.S. District Court for the Southern District of New York 2002). The computers used by the 5 lawyers and their staff were all networked, and at least one seems to have been in common use. The attorney-client privilege issues were, therefore, very complex.

Federal agents executed the search warrant at the offices and seized lots of material, including computer data. The court noted that the data was particularly “likely to contain privileged materials.” The government intended to have a privilege team review the data to sort out what was privileged and what was not, but Stewart said that wasn’t enough. She asked the court to appoint a Special Master – an outsider – who would conduct the initial screening of the material. She argued that the special complexity and sensitivity of the search and the material seized required that, and the court agreed. U.S. v. Stewart, supra. I can only find a couple of reported cases in which courts have appointed Special Masters, but I think it can be particularly important when computer search warrants are executed at law offices (or doctors’ offices, too, for that matter).

1 comment:

PatHMV said...

When I was a state prosecutor a number of years ago, I had to deal with an interesting privilege claim by defense counsel. In a white collar case, state police (with whom I was working closely) executed a search warrant on defendant's offices, which contained many, many documents. They carefully seized only documents which appeared to be responsive to the warrant, leaving behind other documents which seemed to provide evidence of the commission of other crimes not covered in the initial search warrant.

After an initial review of the documents seized, and in combination with observations of the officers who conducted the search, we had probable cause to go back and seize more documents which hadn't been covered by the original warrant.

About 9 o'clock the night the new warrant was being executed, I got an extremely hostile phone call from the defense attorney for the owner of the warehouse, accusing me of all sorts of "unAmerican" actions. Most particularly, he claimed that he (defense counsel) had already set up shop in that office and was reviewing the defendant's documents in the wake of the initial seizure. He had already culled through many documents and sorted and organized them on various tables and so forth. He claimed that this ordering was part of his mental processes and was, therefore, attorney work product.

In the end, he never actually pursued the claim; we didn't track the documents based on where in the room they had been found, so I never actually had any idea which documents had been pulled by defense counsel. The police had researched the entire office and just commingled all the documents seized. But it was an interesting claim.