Lawyers in the Dock Part 1: EDNY Judge Lays Out Roadmap for Prosecution of Lawyer

How many lawyers does it take to prosecute a lawyer?  One answer may be found in a decision by EDNY Judge Gleeson, United States v. Simels, 2008 WL 5383138 (E.D.N.Y. December 18, 2008): a team of AUSAs to prosecute, a different team of AUSAs to review privilege materials, yet another team to prosecute the case that generated the prosecution against the lawyer, a “wall” AUSA to review audio and video recordings prior to arrest, a special master to extract relevant material from the lawyer’s seized computers, and a team of criminal defense lawyers.  Oh, and, for good measure, separate teams of agents or investigators for all the above.  Arising out of the prosecution of famed criminal defense attorney Robert Simels and his associate Arienne Irving for allegedly plotting to destroy – literally not figuratively – a cooperating witness, this decision illustrates the complex policy, legal and ethical issues raised by the prosecution of lawyers in general, and criminal defense lawyers in particular. 

Facts

Simels and Irving were arrested on September 10, 2008, and charged, along with their client Shaheed Khan, in a chillingly detailed complaint with conspiring to intimidate potential witnesses in Khan’s pending narcotics case.  At issue in the December 18 decision was the government’s production of three kinds of material: documents and computers seized from Simels’ office (none of which had been viewed by the prosecution team), and audio-visual recordings of meetings between all three in the attorney visiting rooms of the MCC.  None of the items seized from the office had been viewed by the prosecution team.  Some of the MCC intercepts had been partially reviewed by a “wall” AUSA and “wall” team of agents prior to the lawyers’ arrests, and some of these had already been provided to the prosecution team.

The parties worked out a protocol for the review of the documents, which included establishing a “privilege” team of prosecutors that would not include members of the prosecution team, and a procedure for resolving disputes over the disclosure to the prosecution team of items the defense claimed were privileged.  The court appointed a Special Master, David Wikstrom, to extract relevant files from the seized computers, which would then be subject to the same protocol as the non-electronic material.  Going forward, the parties agreed that no additional audio-visual recordings would be provided to the prosecution team until the defense team had had an opportunity to review them and raise privilege claims.

Simels and Irving moved for an order to permit them to review the three sets of materials.  Khan moved for discovery to be halted until his drug case had been resolved.

Holding

First, the court addressed whether Khan was deemed to have waived the attorney-client privilege by permitting Simels and Irving to divulge confidential information to their lawyers.  Holding he had not, the court held, citing Proposed Rule of Evidence 511, that “the privilege should not bar a lawyer from seeking legal advice regarding confidential information, and that the privilege holder should not be punished for allowing such a consultation.”  As for work product privilege, the court held Khan had no right to prevent Simels and Irving from disclosing work product to their own lawyers.  The work product rule was designed to prevent compulsory disclosures to adversaries, not voluntary ones to one’s own counsel. 

The court denied Khan’s request to halt discovery, but set up deadlines and procedures whereby Khan could assert a claim of privilege over a specific item and the government’s privilege team would get an opportunity to respond.  While Khan understandably did not want to litigate discovery issues at the same time as he prepared his defense in his narcotics case, that fact did not “outweigh the interests of the public, Simels, and Irving in a speedy trial of this case.”

Comment

The prosecution of lawyers for acts of advocacy has gained some traction lately with the publication of the notorious torture memoranda of the Bush Administration.  But, in an adversarial system such as ours, the concept has a chilling effect on aggressive advocacy.  That’s why the prosecution of lawyers for lawyering is different. 

The concerns about prosecuting lawyers are in no sharper relief than in the context of prosecuting criminal defense lawyers.  Their clients are among the most reviled in society and often their lawyer is the only shield between them and the might of the state.  Their lawyer may be the only person to whom they can talk freely, the only person they truly trust, and the only person to bring them to a rational resolution of their case.  The techniques lawyers use to bring clients from denial to acceptance are many and varied.  Indulging one’s client is not the same as conspiring with him.   

Those of us who are troubled when lawyers are targeted (even ones who bring the profession into disrepute) can take solace in Judge Gleeson’s Simels decision.  It lays out an important blueprint for ensuring the “fair and expeditious resolution of the thorny issues of privilege that arise when the government seizes materials from a law office.”  It subjects both claims of privilege and the invocation of the crime-fraud exception to adversarial testing and judicial review.  Most importantly, it requires that the defense be permitted to review any post-arrest seized materials and raise applicable privilege claims before they are provided to the prosecution team. 

But the decision does not address a more fundamental question: what sort of limits should be imposed on the investigation of lawyers prior to any arrest?  Here, for example, the government deployed a wired cooperating witness into a criminal defense attorney’s office to record conversations about strategy in Khan’s trial.  What checks and balances, if any, should govern such a profound intrusion into the attorney-client relationship?  That issue is the subject of a fascinating pending motion to dismiss and/or suppress evidence in the Simels case.  In that motion, the defense argues persuasively that the use of this kind of investigation technique against a lawyer for acts of advocacy should be subject to judicial supervision – something that did not occur here.  Stay tuned for what is likely to be another notable decision in the area of the prosecution of lawyers. 

Lawyers: Gerald Shargel, Henry Mazurek (Robert Simels); Steven Brounstein, Papa, Depaola and Brounstein (Shaheed Khan); Javier Solano and Lawrence Berg (Arienne Irving); AUSAs Paul Schoeman, Steven D’Alessandro