Litigator Stuart Berman was quoted in today’s Washington Post in an article about a court ruling imposing new restrictions on how prosecutors can review evidence seized from a law firm.
When prosecutors and agents are conducting complex criminal investigations, courts sometimes authorize search warrants that permit agents to enter, search, and seized evidence from an attorney’s office. Before the investigators can review those materials, someone has to review them to ensure that they do not get access to documents or information covered by attorney-client or other privileges. But who? In many investigations, a “filter team” of “lawyers, agents and assistants not connected to the investigation, but from the same law enforcement offices, review seized documents,” according to the article.
However, in a recent case involving the investigation of a prominent Baltimore attorney who was represented by another prominent Baltimore attorney the Fourth Circuit Court of Appeals likened such a review to a fox guarding a henhouse and required that the review be controlled by judges, not prosecutors and agents.
In the article, Berman said the decision was part of a trend in which judges have become becoming increasingly skeptical of executive branch “filter team” reviews. “Courts are not going to be nearly as willing to entertain the idea of a filter team when you’re searching a whole law firm and vast quantities of communications.”
On the other hand, he said, having reviews conducted by a court-appointed special master could prove cost-prohibitive. The issue is what should happen when the government executes a search warrant of a law office, which is permitted with appropriate approvals, but in the process seizes potentially privileged materials.
You can read the full article on the Washington Post’s website at “Investigative tool used in law firm searches at risk, federal prosecutors fear.”
Stuart Berman represents businesses and individuals facing criminal investigation and prosecution or civil enforcement action by federal and state authorities in Maryland and around the country. He can be reached at 301-657-0729 or [email protected].