Do Prosecutors Hate the Attorney-Client Privilege?

By Sara Kropf

danger thin ice

The search of attorney Michael Cohen’s office by federal agents led to a phalanx of “former federal prosecutors” quoted by the media.

That’s not surprising. To be fair, I know a lot of great former federal prosecutors who provide informative quotes to reporters and likely share a lot of substantive information off the record that helps the media.

But what two former prosecutors recently said about the attorney-client privilege was disturbing because they show incredible disdain for it.

Liam Brennan, who used to be a federal prosecutor, wrote an op-ed in The Washington Post saying that the attorney-client privilege allows wealthy defendants “a free pass to engage in corrupt conduct.”

What, what? He couldn’t possibly have said that.

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OIG Investigations – Why Lawyers and Federal Employees Should Both Worry (Part III)

vintage-detective-looking-through-a-magnifier-picture-id501362758

I’m not in the OIG, but I play one on TV.

By Dan Portnov

We have written on several occasions[1] about OIG investigations on this blog, chiefly because a) their opacity creates a certain mystique, and b) we hope to minimize the chances that their targets underestimate the seriousness of what could later become a criminal investigation. The focus of this post is on OIG investigations involving a federal employee and a few key principles to keep in mind when suddenly confronted with an investigation.

In our (humblest) opinion, there are five things every federal employee should know about the OIG before its investigators show up to his or her office door:

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Doing the Government’s Laundry

laundry-shop-picture-id617735318By Dan Portnov

In certain legal (nerd) circles, coining a phrase or term of art is one of the surest ways to achieve immortality – think Tim Wu’s first use of “network neutrality” in a 2003

journal article or Justice Felix Frankfurter’s opinion in Rochin v. California[1] holding that the certain police methods “shock[ed] the conscience.” And soon we may have Seth Levine[2] to thank for the term “Brady Laundering.”

Here, Levine leveled his accusation on behalf of his client, Anthony Blumberg,[3] in the midst of an evidentiary hearing into the relationship between the government and counsel for Blumberg’s former employer, ConvergEx Group,[4] suggesting the former took pains to avoid uncovering Brady material by outsourcing the bulk of the investigative work to the latter. He further argued that ConvergEx achieved “extraordinary cooperation” status as a result of the company working so closely with the government that it effectively became a member of the prosecution team. Thus, ConvergEx also had the obligation to turn over Brady materials within its possession related Blumberg.

The four-day evidentiary hearing, which began on March 12, 2018 and will (hopefully) culminate on May 15, spotlights several important principles that counsel should consider during DOJ or SEC investigations where cooperation credit is sought.

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Music City and the FCPA: What More Can You Want?

If you are new to white-collar work, you will quickly hear about the Foreign Corrupt Practices Act or FCPA. For you seasoned attorneys out there, you may feel like you’ve heard too much about it.

But here’s the thing: you can always learn more.

And I know just the place.

Join the FCPA Professor, AKA Mike Koehler, in Music City, USA, AKA Nashville, May 3-4, 2018, for the FCPA Institute.

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The Government Is Probably Going to Win on the Michael Cohen TRO Motion

businessman-burying-his-head-uner-a-laptop-asking-for-help-picture-id658516626The government filed its opposition to Michael Cohen’s motion for a temporary restraining order today. I wrote earlier this week about the search warrant and noted that there would be a court battle coming.

Well, here it is.

Oddly, the public docket has the government’s redacted opposition but does not have a docket entry for the initial TRO motion or for any motion to intervene by President Trump. (If anyone has them, please send them my way.)

Trump would certainly have standing to intervene if it is his privileged documents at issue. There are very limited circumstances when someone has standing to challenge a search warrant (someone other than the person from whom the items were seized, that is). A client in the attorney-client relationship has standing. We’ll see more from President Trump, I’m sure.

And not just Tweets.

From the reports of the court hearing today, it appears that there will be additional filings and the judge made no rulings. But I’ve read the government’s filing, and I have a few initial takeaways:

First, as widely reported, the filing makes clear that Cohen is the target of a criminal investigation. This doesn’t mean that the FBI didn’t also seize information related to other subjects of the investigation (ahem), but the filing suggests that evidence of Cohen’s own wrongdoing was the main focus.

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The Search Warrant for Lawyer Michael Cohen’s Office – How Did That Happen? DOJ Policies Reviewed

Two security agentsOn April 9, 2018, news broke that the FBI had raided the office of President Trump’s attorney, Michael Cohen.

Apparently the search was the result of referral from Special Counsel Mueller’s team to the SDNY U.S. Attorney’s Office.

When I saw the news, my first thought was “wow, the prosecutor had to jump through a lot of hoops to get approval of that warrant.”

There are a lot of procedural hurdles that must be overcome to obtain approval to search any lawyer’s office, never mind the political minefield involved in raiding the office of the sitting President’s lawyer.

It’s worth noting that the FBI does not normally raid the offices of lawyers. The files and emails held by a lawyer are mostly protected by the attorney-client privilege and seizing them creates all sorts of issues for the FBI.

There are two DOJ relevant policies here–one governs if Mr. Cohen IS the subject of the investigation and one governs if Mr. Cohen is NOT the subject of the investigation.

Let’s take a quick look at each of them.

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How Do You Find Out Why the Government Obtained a Search Warrant?

shredded evidenceBy Sara Kropf

Paul Manafort recently filed a motion to compel the production of the affidavits used to support the Special Counsel’s search warrants in his case. To someone unfamiliar with criminal law, that may seem odd. The defendant must know why the government executed a search warrant, right?

Every once in a while, my clients have some suspicions about why the search warrant was executed but, more often, they are clueless. After the initial shock of the search warrant has worn off, my clients always want to know what the government was looking for—and why.

That’s not an easy thing to find out.

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How to Prepare a Nervous Witness for a Government Interview (Part II)

Anxious young business man looking awayBy Sara Kropf

In Part I of this series, I listed my first six tips for preparing a nervous witness (or any witness, really) for a voluntary government interview. Those tips involved a lot of the mechanics of preparing your client for what the interview will look like.

Below is my second set of tips. They run the gamut from the obvious (tell your client to tell the truth) to the less-than-obvious (beware the speakerphone).

Feel free to add any tips you have in the comments. Who knows, maybe there will be a Part III to this series down the road.

Seven: Reassure your client that it’s okay to say “I don’t know” or “I don’t remember.” I’ve found that the more sophisticated the client is, the more difficult it is for him to admit that he can’t answer a question. But it is critical that clients don’t speculate or guess at the answer, since the government may have a document that conclusively establishes the answer—and giving an incorrect answer is simply fodder for a false statement charge.

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Bring in the SEC Taint Team

businessman-burying-his-head-uner-a-laptop-asking-for-help-picture-id658516626

by Dan Portnov

Let’s say that you or your company find yourselves in the unfortunate position of receiving a document request by the Securities and Exchange Commission (SEC) with limited resources for representation. You’ve retained a moderately-priced, hyper-efficient securities enforcement lawyer (a “unicorn”). Still, the Commission’s initial document request demands every document, every draft, every e-mail created by you since the beginning of time.

You’ve got nothing to hide so your first instinct is to cooperate with the request.[1] Your lawyer informs you that she will need to engage a vendor to harvest data from your server(s), task junior lawyers to review each document for responsiveness and privilege, then produce the documents pursuant to the SEC’s exacting data delivery standards. This is going to cost a small fortune, but, once this arduous task is complete, the real preparation and advocacy can begin.

This is a frustrating position in which to find yourself – spending thousands or more just to put documents in the hands of the Commission. However, this is not the only option. Enter the Purposeful Production Without Privilege Review (PPWPR)…

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How to Prepare a Nervous Witness for a Government Interview (Part 1 of 2)

Anxious young business man looking awayRepresenting a witness during a voluntary interview or proffer session with the government requires preparation. As the lawyer, you will get ready by reviewing documents, talking to other lawyers in the joint defense group about anticipated questions and working through those substantive topics with your client.

But you must also prepare your client for the nuts and bolts of what will happen during the interview. This preparation is just as important as the substantive part. Even a well-prepared client can fall apart during the interview if she faces an unanticipated environment.

Trust me, you don’t want to watch your client fall apart during the interview. I’ve been there. It ain’t pretty.

Some of these tips are more or less applicable depending on whether your client is accustomed to being the center of attention at a meeting or to answering difficult questions from a hostile audience.

For a CEO, walking into a large conference room filled with people staring at her will not be excessively intimidating. For a small-business owner or someone who works in a blue-collar field, simply walking into the room will be (at best) uncomfortable or (at worst) terrifying.

Spending some time preparing the witness for what will happen that day will help tamp down these fears and, hopefully, allow your client to focus on answering questions truthfully.

Here are the first 6 of my top tips for preparing a nervous witness for a voluntary government interview. (I’ll write some other time about preparing for a less-than-voluntary interview, such as a cooperation session by a person pleading guilty.)

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