For the Defense - Vol. 9, Issue 2 - 22

and employs similarly strong admonitions about the historical
importance of upholding the attorney-client privilege and the
attorney-work-product doctrine. In Vepuri, the Court directly
adopts the Fourth Circuit's view that the authority to determine
issues of privilege belongs to the courts and the courts alone and
found that the government's proposed filter team procedures
undermined the separation of powers and vitiated significant
interests of the defendant. In doing so, the District Court set forth
filter team procedures as follows:
The court adopts the following procedure which will
take into account the interests of the Government and
safeguard the rights of the defendant. The filter team,
walled-off from the prosecution team, may retain and
review all materials seized. The Government shall provide
the defendant with immediate access to the materials in
its possession. The defendant shall review the materials
as promptly as possible and advise the filter team which
materials it considers not to be privileged and which
materials it considers to be privileged. To the extent it
considers materials not privileged, they will be immediately
produced to the prosecution team. As noted above,
it has been represented to the court that a significant
percentage of the materials are manufacturing, financial
and other business records which are highly unlikely to
implicate any privilege. The parties should deal with this
category of materials first and without delay. The filter
team will have a reasonable amount of time to review
the materials the defendant has designated as privileged.
To the extent the filter team agrees with the defendant,
those materials shall be returned to the defendant.
The court will appoint a special master, at the
Government's expense, to review for privilege those
remaining materials
as to which there still
dispute. The parties shall attempt to agree on a special
master. If unable to agree, each side shall submit to the
court the names of up to three individuals who will agree
to serve. The court shall not be advised as to the party
recommending any individual. The court will select a
special master from the list.
The Vepuri case provides strong precedential support for the
Fourth Circuit's rulings in In re Search Warrant issued June 13,
2019 and for employing the aforementioned procedures for future
filter teams. Scarfo and Vepuri also both support the view that it
is critically important to move to enjoin filter team procedures as
early as possible.
Don't Panic: Prepare!
Last October, several of my White-Collar Criminal Defense
colleagues and I presented an ethics panel at the National
Association of Criminal Defense Lawyer's (NACDL's) White Collar
Seminar titled Lawyers Representing Lawyers: The Troubling Recent
Prosecutions of Defense Lawyers and Related Ethical Issues.12
We
had a full house of criminal defense attorneys who shared their
stories and concerns about prosecutions of lawyers in connection
with conduct arising out of their representation of individuals
accused of crimes. My participation on this panel convinced me
22 For The Defense l Vol. 9, Issue 2
exists a
that we need to speak more frequently and openly about this
concern. We need to share our experiences and our wisdom on the
issue of how to handle the protection of privileged materials if we
find ourselves in the government's sights.
While searches of criminal defense lawyers' offices are rare, that
they happen at all requires us to prepare. Stating the obvious, if
you are a target, then hire an attorney. Do not react by picking
up the phone to call the government. You and your attorney must
defend not only you, but also your practice. If there is a search,
you must immediately evaluate what has been taken and which
clients may be immediately affected by the seizure. Remember
that several ethics rules impose an affirmative duty to protect your
present, past, and former clients' confidences.13
One of the key takeaways from the Treem case is the District
Court's reliance on the Firm's alleged delay in coming to the court
for injunctive relief as a ground for refusing injunctive relief. The
search warrant was executed on Tuesday, June 18, 2019. The Firm
voiced objections during the execution of the warrant. These
objections were followed up by a formal letter seeking relief on
Friday, June 21, 2019. After being ignored by the government,
the Firm asked the Court for relief on Friday, June 28, 2019.
While the Fourth Circuit ultimately granted the injunctive relief,
the lower court's comments counsel in favor of speedy action.
Time trying to negotiate with the government over their filter
protocol or to respectfully request alternative measures could be
counterproductive. In each situation, be prepared to go directly to
the court so as not to " delay " or inadvertently assent to protocol
structure in the eyes of the court.
There are also some practical steps you can take before this
ever becomes a reality. First, think about segregating client data,
especially sensitive communications, to a secure cloud storage
system that is not commingled with your personal data or with
other clients' data. This may not be necessary for all clients, but in
sensitive cases, you may consider whether such a step is required.
Second, while it can get tedious, use subject lines in emails to mark
a communication as a confidential client communication. Also, it is
just common sense to have an " emergency plan " in place. In the
event of a search warrant, who would be present to monitor the
search? Does the staff know that they can leave and do not have to
submit to interviews? Is there a lawyer with expertise in attorneyclient
privilege and the Fourth Amendment who you can call to
represent you in the event of a search? While it may seem like a
remote possibility, thinking through these things now when you
are calm can save you stress and anxiety later.
If you don't have someone to call, belonging to PACDL and
NACDL gives you easy access to the Lawyers' Assistance Strike
Force. These veteran attorneys have experience representing and
counseling criminal defense lawyers who are members of NACDL
and PACDL when they are imperiled with the risks of contempt,
disqualification, or subpoena for privileged information. These
Strike Forces will review your case, at no cost, if you are threatened
in any way for providing legal representation to a client. If you do
nothing else in preparation, just make sure you know how to reach
the Lawyers' Strike Force-that will be the first step to getting the
help you need.
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For the Defense - Vol. 9, Issue 2

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