Well, this came over the transom. It’s “unclassified.” I was tempted to label it as “In the Theater of the Absurd II.” But for the moment it’s under “rants” and “professional responsibility.” Perhaps if we had more facts — anyone?
(Update 1100, 3 May. It appears the search authorization was granted by the Area Commander who likely did have the authority over the particular building, it’s contents, and the people for search authority purposes. So authority to search should be limited to whether the appropriate amount of cause existed to search, and of course how it was executed.)
It is not uncommon in the civilian community for the feds or local police to obtain a search warrant (from a independent magistrate), for a lawyers office. When that happens there’s a process and a “taint team” is used in order to try and preserve the integrity of defense counsel files.
But now, Marine CID search defense counsel offices. Some of you will recognize the spaces, but I have whited out certain parts.
My initial rant here relates to the apparent method in which the government has proceeded. At some point we may determine whether it was – ahem – warranted. To be clear this may not be as
clear cut black and white under military law or state ethics rules in terms of seeking the evidence itself.
See United States v. Rhea, 33 M.J. 313 (C.M.A. 1991). (I’m still looking for the AF case from some time ago where I thought the ADC offices were searched.)
Have they not heard of a “taint team?” While I am at times critical of AFOSI, they and their legal advisor are at least familiar with the practice when seeking information that might be subjected to a claim of attorney-client privilege. They could have given pointers. (See, United States v. Bruhn, ACM 37291 (A. F. Ct. Crim. App. February 3, 2010)(I did the writ and 32). Who knows, even the NCIS legal advisor might have raised that flag.
So, what about this. Was this considered.
The most common scenario where compromise arises in military criminal practice is in search and seizure situations. The first consideration ought to be the place or thing to be searched. For as noted, some locations or objects are much more likely than others to contain privileged information. In the military context, if the offices of an attorney, clergyman, or psychotherapist are to be searched (hopefully, a rare occurrence), many of the files and electronic media in the office may be privileged. This is especially true in the search of an attorney’s office, because most of the files will contain either client confidences or attorney work-product (discussed fully in Part IV, infra). Thus, great care should be used in these situations. In the civilian sector, the gravity and implications of such searches have been the subject of both congressional and executive concern. In fact, the Attorney General of the United States has published guidelines for federal officers who want to obtain documentary evidence from disinterested third parties (persons who are not themselves the subject of the investigation) who may also be the holders of confidential information.
Caution is required when searching businesses, home offices, or storage areas (including rented lockers) which appear to contain personal or business records. Particular objects warranting caution include business or corporate files and computers, private personal computers, personal digital assistants (like the hand-held PalmPilot TM -type computer organizers, cellular telephone memories, magnetic media (disks, tapes, memory cards, etc.), and paper documents which are marked as privileged or which appear to relate to litigation or the legal affairs of the suspect.
If investigators know or suspect, as in the case of an attorney’s office, that they are likely to come in contact with privileged matter, they must develop a plan to handle these materials properly. There are several approaches discussed below in the subsection on handling compromises. A solid first step is to devise a plan for screening the materials and removing any privileged documents after the search. Ideally, this plan should be described in the documents used to obtain the search authorization. This makes clear that the investigators are acting in good faith, and that the government recognizes the need to protect any privileged material which is discovered.
(Note who one of the authors is) Lieutenant Colonel Norman K. Thompson, USAF and Captain Joshua E. Kastenberg, USAF, ARTICLE: The Attorney-Client Privilege: Practical Military Applications of a Professional Core Value, 49 A.F. L. Rev. 1 (2000)(emphasis added).
I have referenced the U.S. Attorney’s Manual in briefs and posts. This is their approach.
Clearance with the Criminal Division. Because of the potential effects upon an attorney-client relationship that may result from the issuance of a subpoena to an attorney for information relating to the attorney’s representation of a client, the Department exercises close control over such subpoenas. Such subpoenas (for both criminal and civil matters) must first be authorized by the Assistant Attorney General for the Criminal Division before they may issue, unless the information sought falls into one of the exceptions set forth below. Unless one of the specified exceptions applies, authorization must be obtained even for a “friendly subpoena” for client-related information, that is, even in situations where the attorney witness is willing to provide the information but requests the formality of a subpoena.
Preliminary Steps. When determining whether to issue a subpoena to an attorney for information relating to the attorney’s representation of a client, the Assistant United States Attorney must strike a balance between an individual’s right to the effective assistance of counsel and the public’s interest in the fair administration of justice and effective law enforcement. To that end, all reasonable attempts shall be made to obtain the information from alternative sources before issuing the subpoena to the attorney, unless such efforts would compromise the investigation or case. These attempts shall include reasonable efforts to first obtain the information voluntarily from the attorney, unless such efforts would compromise the investigation or case, or would impair the ability to subpoena the information from the attorney in the event that the attempt to obtain the information voluntarily proves unsuccessful.
9-13.000, Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for Information Relating to the Representation of Clients, U. S. Attorney’s Manual, Title 9. See also, 9-13.420, Searches of Premises of Subject Attorneys.
There is some criticism made about the defense counsel standing by and letting it happen. I’m not sure about this and would have to let this fester overnight.
The charges do apparently include 120.
The Article 32 is currently ongoing, and the IO has “ruled” the phone unavailable. It appears the DC declined to provide the cellphone asserting the attorney-client privilege. If so, then clearly the command and government representatives are on notice of a claim of privilege and ought to act accordingly.
And CID is searching offices of unrelated DC’s apparently.
Where will this end, maybe Col Perlak’s office?
Lessons learned: Defense counsel may not conduct an investigation, unless they want to subject their client to an orders violations. True or false?
CID and prosecutor’s may rummage through defense counsel’s offices without concern for privileged information deliberately or inadvertently viewed by outside CID and prosecutors. True of false?
All accused’s serviced at this LSSS need to question whether CID or prosecutors have had access to privileged matters about their own case during the searches. True or false?
The Navy-Marine TCAP, and other Service TCAP’s (or TJAG’s) have a protocol, similar to DOJ, for searching defense counsel’s offices. True or false?