On July 29, 2016, the Supreme Judicial Court decided Commonwealth v. Wade, 475 Mass. 54 (2016), which defined the reach of the DNA testing statute, General Laws Chapter 278A, enacted in 2012. Wade presented two key issues. First, could Wade obtain post-conviction DNA testing under Chapter 278A by demonstrating that the requested scientific/technical analysis had not yet been developed at the time of conviction without also proving the primary reason that DNA testing was not pursued at the time of trial? Second, by filing a request for DNA testing under Chapter 278A, did Wade waive the attorney-client privilege over his communications with trial counsel about DNA testing, thus permitting the judge hearing his Chapter 278A motion to require Wade’s trial lawyer to testify about those privileged communications? The SJC decided both issues in favor of Wade. In doing so, the SJC ensured that Chapter 278A would fulfill the legislature’s purpose of making DNA testing more readily available to those convicted of crimes who assert their innocence.
In 1997, Robert Wade was convicted of felony-murder where the underlying felony was aggravated rape. Wade did not seek DNA testing at the time of trial. When the Legislature enacted Chapter 278A in 2012, Wade promptly filed a motion under the new law (the “278A motion”) seeking post-conviction DNA testing of some physical evidence introduced at his trial.
The Legislature promulgated Chapter 278A “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.” Wade, 475 Mass. at 55. Chapter 278A allows a person who has been convicted of a crime and who claims that he or she is factually innocent of the offense to seek forensic or scientific testing, including DNA testing, of evidence or biological material. To succeed, the movant must show that (1) the requested analysis would be admissible in court, (2) the analysis has the potential to result in evidence material to the person’s identification as the perpetrator of the crime, and (3) the evidence or biological material has not been subjected to the requested analysis on account of one of five grounds outlined in Section 3(b)(5) of Chapter 278A. Those grounds are:
(i) that the requested analysis had not been developed at the time of the conviction;
(ii) that the results of the requested analysis were not admissible at the time of the conviction;
(iii) that the movant and his or her trial attorney were not, and had no reason to be, aware of the existence of the evidence or biological material at the time of the underlying case or conviction;
(iv) that the movant’s trial attorney was aware of the evidence, the results of the requested analysis were admissible at the time of trial, a reasonably effective attorney would have requested the analysis, and either the movant’s attorney failed to do so or the court denied the request; or
(v) that the evidence or biological material was unavailable at the time of the conviction.
Under Section 7(b) of Chapter 278A, the court “shall” allow the requested analysis if the movant shows, among other things, that DNA testing had not been performed “for any of the reasons” enumerated in Section 3(b)(5).
In an earlier appeal of an order denying Wade’s 278A motion at a preliminary stage of review (Commonwealth v. Wade, 467 Mass. 496 (2014)), the SJC concluded that Wade had adduced enough information in the motion to meet the law’s threshold requirements and remanded the case to the trial court for an evidentiary hearing to determine, among other things, whether Wade could establish one of the five Section 3(b)(5) grounds enumerated above. Wade, 475 Mass. at 57-58. In the proceedings on remand, which led to the 2016 SJC decision, Wade initially claimed that two of the Section 3(b)(5) grounds entitled him to DNA testing: first, the requested analysis had not been developed at the time of the conviction (the “undeveloped analysis” argument) and, second, Wade’s trial lawyer had not sought DNA testing and a reasonably effective lawyer would have done so (the “reasonably effective attorney” argument).
Before the hearing on remand, the Commonwealth moved for leave to examine Wade’s trial counsel on the question of whether a “reasonably effective attorney” would have sought the requested testing at the time of trial. Wade opposed such testimony, asserting his attorney-client privilege. The trial court allowed the Commonwealth’s motion. Wade petitioned for relief before a single justice, who determined that examination of Wade’s trial counsel could proceed if trial counsel could testify “without revealing attorney-client communications.”
At the hearing on the 278A motion, the Commonwealth examined Wade’s trial lawyer. Wade again objected on privilege grounds. When Wade’s privilege objection was overruled, Wade waived his claim under the reasonably effective attorney prong and proceeded solely on the undeveloped analysis argument. Despite Wade’s abandonment of the reasonably effective attorney argument, the Commonwealth questioned Wade’s trial counsel about privileged pre-trial conversations with Wade concerning the reason for not pursuing DNA testing, arguing that even when a movant like Wade seeks relief solely on the undeveloped analysis argument, the “actual reason that the evidence was not tested” must be adduced, which can be done through the questioning of trial counsel. Wade, 475 Mass. at 59.
The motion judge agreed with the Commonwealth and required Wade’s trial counsel to reveal the substance of his pre-trial conversations with Wade about the crime and the wisdom of seeking DNA testing. The judge denied Wade’s subsequent motion to strike the privileged testimony and ultimately relied on that testimony, in part, to reject Wade’s request for DNA testing. Even though the motion judge found that Wade was correct that the requested analysis had not been developed at the time of conviction, the court rejected the claim that this was enough to satisfy Section 7(b). Rather, the judge concluded that “the proper inquiry” under Section 7(b) is “‘what was the primary “reason,” i.e., the primary cause, why the material was not previously subjected to the requested analysis.’” Wade, 475 Mass. at 59 (quoting the trial court). Although the motion judge found that Wade was correct that more sophisticated DNA tests were available in 2014 than were available at the time of trial, he concluded that the absence of such precise testing was not the “primary” reason Wade didn’t request a DNA test at that time. Instead, despite the fact that Wade had abandoned his argument under the reasonably effective attorney prong, the motion judge concluded that the primary reason DNA testing was not sought at trial was because a reasonably effective attorney would not have sought the requested analysis under the circumstances and, thus, Wade had not satisfied this Section 3(b)(5) factor.
On appeal to the SJC, Wade argued that he had satisfied Chapter 278A’s requirements and that the Superior Court had improperly intruded upon his privileged attorney-client communications. The BBA, which had advocated for the statute’s passage, agreed and filed an amicus brief in support of these arguments.
As to Chapter 278A, Wade argued that the motion judge misread the statute and that the showing Wade had made – namely, that the requested analysis had not been developed at the time of the conviction – was enough by itself to satisfy the requirements of Section 3(b)(5). The trial judge erred, Wade argued, by requiring Wade to establish the primary cause for not pursuing testing at the time of trial. Because the sole issue was why the evidence had not been subjected to the analysis requested in the 268A motion (which did not exist at the time of trial), Wade argued that it was irrelevant why his counsel did not seek a prior form of DNA testing at the time of trial and whether not seeking such testing was a reasonably effective strategy. Furthermore, Wade had expressly abandoned his reasonably-effective attorney argument, making any inquiry of his trial counsel irrelevant. Wade asserted that the trial court’s mistaken reading of Chapter 278A increased the burdens on a person seeking DNA testing under Chapter 278A on an undeveloped analysis claim by requiring a movant to place privileged communications with trial counsel at risk, thereby undercutting the legislative purpose to reduce the barriers to DNA testing. On the issue of privilege, Wade argued that requiring Wade’s trial counsel to reveal highly confidential, attorney-client communications was a grave error, as there was no express or implied waiver of the privilege by Wade under the facts of this case and none required under Chapter 278A itself.
The SJC’s Decision
The SJC agreed with both of Wade’s core arguments.
The SJC found that the Legislature’s goal in enacting Chapter 278A was “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques . . . [to] provide a more reliable basis for establishing a factually correct verdict than the evidence available at the time of the original conviction,” that Wade’s satisfaction of the undeveloped-analysis prong of Section 3(b)(5) alone was enough to merit relief under the statute and that the motion judge erred by requiring Wade to also show that this reason was the primary reason trial counsel did not seek DNA testing. Wade, 475 Mass. at 55.
The SJC found that a plain reading of Chapter 278A demonstrated that any one of the reasons enumerated in Section 3(b)(5) sufficed to satisfy the statute, as “[t]he language of the act plainly indicates the Legislature’s intent to provide a moving party with a choice among several, distinct reasons advanced by the moving party to explain why the material had not been previously subjected to the requested testing.” Wade, 475 Mass. at 61. As a result, there was no need for Wade to also show what a reasonably effective lawyer would have done.
The SJC also rejected the motion judge’s finding that a movant, in addition to proving one of the Section 3(b)(5) grounds, must also establish the “primary” or “actual” reason testing was not conducted at the time of the original prosecution. It found nothing in the act to suggest that the Legislature sought to impose such a burden on movants. The fact that the now-requested analysis did not exist at the time of Wade’s trial, alone, was enough to support Wade’s request. The SJC also noted that its 2014 Wade decision had foreclosed the argument that a party would be precluded from obtaining DNA testing under Chapter 278A if his or her trial counsel made a strategic choice not to seek DNA testing. Because even the reasonably effective attorney inquiry was objective, the actual reason a movant’s trial lawyer did not seek testing was irrelevant the analysis of any of the factors under Section 3(b)(5).
As to the privilege issue, the SJC rejected the Commonwealth’s contention that seeking a DNA test under Chapter 278A necessarily waives a movant’s attorney-client privilege with his or her trial counsel. Certainly, Wade’s reliance on a wholly objective ground – whether the requested DNA analysis existed at the time of his trial – did not put at issue any privileged attorney-client communications. Perhaps more significantly and as noted, the SJC found that even in cases where a party relies on the reasonably-effective-attorney prong, “that inquiry is also objective, and therefore does not require testimony or an affidavit from trial counsel.” Wade, 475 Mass. at 65. Finally, and regardless of the Section 3(b)(5) prong relied on, the 278A movant is not required to establish the “real” or “primary” reason testing was not sought at the time of trial, and thus it is error to invade the privilege in pursuit of that inquiry. Because Wade had not effected an “at issue” waiver by filing his petition, the SJC concluded that the trial court should have allowed Wade’s motion to strike all privileged communications disclosed by trial counsel.
The SJC’s decision in Wade restored the goal of Chapter 278A – to make DNA testing more readily available to convicted persons than it had been. Further, its clear rejection of the claim that filing a 278A motion necessarily waives the attorney-client privilege with trial counsel eliminates a major impediment to convicted persons seeking relief under Chapter 278A and prevents an improper invasion into the privilege.
Michael D. Ricciuti is a partner at K&L Gates where he co-leads K&L Gates’ global Government Enforcement practice. He is a member of the Boston Bar Association’s Council and Steering Committee for the Criminal Law Section and previously served as Secretary of the Boston Bar Association.
Kathleen D. Parker is an associate at K&L Gates where her practice focuses on complex civil litigation, internal investigations, and government enforcement.
Patrick C. McCooe is an associate at K&L Gates where he concentrates his practice in government enforcement, white collar criminal defense, and complex civil litigation.
The authors drafted and filed the BBA’s amicus brief on behalf of Wade before the Supreme Judicial Court.
by Robert M. Buchanan, Jr.
The Supreme Judicial Court of Massachusetts has taken intellectual leadership on an issue of nationwide importance for the legal profession. RFF v. Burns & Levinson, 465 Mass. 702, 703 (July 2013) addressed “whether confidential communications between law firm attorneys and a law firm’s in-house counsel … are protected from disclosure to the client by the attorney-client privilege.” The SJC ruled firmly that the privilege does apply — the first time this issue has been resolved by the highest court in any jurisdiction.
Examples Of The Issue In Practice
The Boston Bar Association filed an amicus brief in the RFF case. We provided several practical examples of how in-house counsel function in law firms.
Example 1: Law Firm represents Client A and also represents Client B. Client B calls Lawyer asking for urgent advice about an affiliate of Client A. Does Lawyer have a conflict of interest?
Example 2: Lawyer is preparing for a strategy discussion with Client, which is scheduled to begin in a few hours. Suddenly Lawyer realized that he may have made a technical or strategic mistake. What should he do? Does he need to disclose something to Client?
Example 3: A real estate developer Client sends a letter accusing Law Firm of malpractice, and at the same time insists that Law Firm continue performing work for the developer. Should Law Firm continue performing work for this Client?
In each of these three scenarios, the lawyer needs guidance; the law firm’s in-house counsel is in the best position to provide guidance; and the client will benefit if the lawyer obtains proper guidance promptly.
The Facts Of The RFF Case
The RFF case was similar to Example 3. Real estate lawyers received a demand letter from their client, a real estate developer. The lawyers faced a difficult set of questions. Should they argue with the client? Should they continue to represent the client? How could they do both at the same time? The lawyers sought advice from their partner who was “designated to respond to ethical questions and risk management issues.” RFF, 465 Mass. at 704.
The real estate developer later filed a malpractice action and sought to take depositions. The Business Litigation Session — in a well-reasoned opinion by Judge Billings, dated November 20, 2012 — ruled that the attorney-client privilege protected the lawyers from interrogation about their discussion with in-house counsel.
The SJC’s Analysis
The SJC affirmed, stating a logical series of principles, as the BBA had advocated.
1. Lawyers in law firms often need advice.
Law firms, like corporations, face a vast and complicated array of regulatory legislation, where the line between permissible and prohibited conduct is not always an instinctive matter.
RFF, 465 Mass. at 708-09, quoting Chambliss, The Scope of In-Firm Privilege, 80 Notre Dame L.Rev. 1721, 1756 (2005).
2. The attorney-client privilege enables in-house counsel to give advice.
Where a law firm designates one or more attorneys to serve as its in-house counsel on ethical, regulatory, and risk management issues that are crucial to the firm’s reputation and financial success, the attorney-client privilege serves the same purpose as it does for corporations or governmental entities: it guarantees the confidentiality necessary to ensure that the firm’s partners, associates, and staff employees provide the information needed to obtain sound legal advice.
RFF, 465 Mass. at 704-10.
3. There is no principled reason to reject the privilege.
Lower courts in some other jurisdictions had ruled that the attorney-client privilege does not apply. These courts have held that the law firm is impaired by a conflict of interest when the firm represents itself adverse to a current client. The SJC ruled, to the contrary, that the law firm can’t avoid analyzing what to do, and its analysis should be protected by the attorney-client privilege. Justice Gants stated the critical distinction as follows:
. . .[A] client is entitled to full and fair disclosure of facts that are relevant to the representation, including any bad news, and to sound legal advice from its law firm. But a client is not entitled to revelation of the law firm’s privileged communications with in-house or outside counsel where those facts were presented and the sound legal advice was formulated.
RFF, 465 Mass. at 716 (emphasis added).
The Privilege Applies If Four Requirements Are Met
The BBA’s amicus brief proposed a three-part test for applying the attorney-client privilege to in-house counsel. These three requirements were adopted by the SJC in the passage below. The SJC also added a fourth requirement, confidentiality, which is consistent with them. The SJC held:
For the privilege to apply, four conditions must be met. First, the law firm must designate, either formally or informally, an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs. Second, where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter…. Third, the time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client…. Fourth, as with all attorney-client communications, they must be made in confidence and kept confidential.
RFF, 465 Mass. at 723 (emphasis added).
All Massachusetts law firms should review these four requirements. Although the SJC’s holding is not binding outside Massachusetts, its powerful reasoning should be persuasive in other states as well. In the long run, this analytical clarity should benefit all U.S. law firms and the clients that they serve.
Robert M. Buchanan, Jr. wrote the Boston Bar Association’s amicus brief, pro bono, in the RFF case. Mr. Buchanan is Chair of the Ethics Committee at Choate Hall & Stewart, where he is a partner in the Litigation Department and leads the Antitrust practice.
by David A. Barry and William L. Boesch
In the midst of a law firm’s handling of a case, a client announces that he believes the firm may have mishandled the matter and that he has retained separate counsel to evaluate the firm’s work. The client insists that the firm continue to handle the matter because withdrawing now would be prejudicial. He says that if the case turns out badly, he will seek indemnity from the firm for his losses.
The lawyers involved in the case turn to their colleagues for advice. They talk and exchange e-mails with the firm’s managing partner, and with others in the firm who have experience in the subject-matter of the case and in professional-liability matters. The managing partner requests a detailed memorandum explaining how the case was handled and why the now-disputed decisions were made.
If a malpractice lawsuit follows, are these in-firm communications privileged against discovery? The ongoing fiduciary obligation of a firm to a current client, and the potential for conflict between the firm’s own interests and those of a client who threatens a malpractice claim, have prompted judges in a series of cases to hold that in-firm communications such as those described in the example above are not privileged, even if conducted with the express purpose of seeking and obtaining legal advice about the client’s threatened claim. E.g., In re Sunrise Securities Litigation, 130 F.R.D. 560 (E.D. Pa. 1989); Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 220 F.Supp.2d 283 (S.D.N.Y. 2002); Koen Book Distributors, Inc. v. Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283 (E.D. Pa. 2002).
This view, sometimes referred to as the “fiduciary exception” to the attorney-client privilege, was adopted by Judge Gorton of the District of Massachusetts in a 2007 ruling in Burns v. Hale & Dorr LLP, 242 F.R.D. 170, and by Judge Stearns in a brief 2011 decision in Cold Spring Harbor Laboratory v. Ropes & Gray LLP, 2011 WL 2884893.
The RFF Family Partnership Case
In a November 2012 decision, however, Massachusetts Superior Court Judge Thomas Billings joined what may now be a counter-trend in favor of recognizing a privilege for in-firm communications on current-client matters, at least under certain conditions. RFF Family Partnership, LP v. Burns & Levinson, LLP, 30 Mass. L. Rptr. 502 (Mass. Super. Ct. Nov. 20, 2012). See also, e.g., TattleTale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP, 2011 WL 382627 (S.D. Ohio Feb. 3, 2011); Hunter, MacLean, Exley & Dunn, P.C. v. St. Simons Waterfront, LLC, 730 S.E.2d 608 (Ga. App. 2012).
Judge Billings’s decision produced an interlocutory appeal which the Supreme Judicial Court has taken for itself to decide (the case is SJC-11371) which as of this writing has been briefed and argued, and is under advisement. As we discuss below, Massachusetts lawyers will watch with interest to see whether the SJC uses this occasion to announce general rules on the subject of in-firm communications. Whether or not the Court does so, lawyers and firms may want to examine their procedures for responding to client disputes.
In RFF Family Partnership, the law firm handled a real estate loan foreclosure that produced a dispute over lienholder priority. The client retained a second lawyer, who sent a malpractice claim letter and draft complaint to the law firm, and demanded indemnification from any loss the client might suffer due to the firm’s alleged failure to detect, report and address the competing liens. The letter prompted an internal meeting at the firm between the lawyers involved in the matter and the firm’s managing partner.
When a malpractice suit was filed more than a year later, the firm took the position in discovery that the in-firm meeting was for the purpose of seeking the managing partner’s legal advice on how to respond to the potential malpractice claim. The plaintiff-client argued that even if this was so, the meeting occurred at a time when the law firm owed the client a fiduciary duty of disclosure as to facts material to the client’s interests, and that this fiduciary duty precluded the firm’s invocation of the attorney-client privilege.
Judge Billings’s Decision
In his November decision, however, Judge Billings observed that the fiduciary exception was originally developed to address situations in which a trustee sought legal advice, at the expense of trust beneficiaries, to guide the administration of a trust. Here, by contrast, the lawyers obtained legal advice at the firm’s own expense and solely for the firm’s protection.
Further, Judge Billings did not see any inherent inconsistency between a lawyer’s ongoing duty to disclose facts affecting the client’s interests—a duty that exists regardless of the lawyer’s decision as to whom, if anyone, to consult—and the reasons for encouraging a lawyer faced with a malpractice claim to seek the advice of another lawyer about how to evaluate and respond to the claim. Judge Billings reasoned that unless facilitating such advice-seeking is somehow perceived as likely to result in the involved lawyer’s deciding to conceal something from the client that he has a duty to disclose, there is no good reason to deny protection to the advice-seeking communications. Indeed, he suggested, it may be in the interests of the client as well as the lawyer that the latter be free to explore issues freely with competent ethics or professional-liability counsel, without the cloud of potential future disclosure.
Thus, the judge upheld in principle the law firm’s invocation of the privilege as to the in-firm communications to the extent they sought or gave legal or ethical advice. However, he found the firm’s discovery responses inadequately detailed and ultimately held that the firm had partially waived the privilege.
The Outside-Counsel Option
If the SJC decides to explore the boundaries of the in-firm privilege in the RFF Family Partnership case, the Court might, of course, adopt the absolutist view exemplified by the two federal decisions cited above, and hold that a firm’s obligations to its client simply bar any potential in-firm privilege. In that event, it will become critical for a firm faced with a potential malpractice lawsuit by a current client to consult with a specialist lawyer outside the firm, and to ensure that the firm’s lawyers understand when such consultation should supplant internal communications among colleagues. Engaging an outside lawyer provides a basis for clearly distinguishing between actually seeking legal advice about the threatened claim and merely discussing the matter as part of the business of running the firm. And since the outside specialist clearly owes no direct or imputed duty to the client, a claim of privilege will not be in tension with such competing obligations.
Establishing an In-House Counsel Role
If the SJC were to uphold Judge Billings’s decision, there may still be many situations in which, for the reasons given above, consultation with outside counsel is the more sensible response to a malpractice threat from a client. But assuming this is not an option for a firm, either in general or in a particular matter, then it will be critically important (under a regime in which in-firm communications may be protected) that the role of the in-house advisor or advisors be clearly pre-established and defined. The firm’s goal should be to give itself a solid basis for arguing that any potential conflict of interests for the lawyers involved in representing the client alleging malpractice should not automatically be imputed to the in-house lawyer or lawyers from whom the involved lawyers seek advice. Rather, the in-house lawyer should be treated as the functional equivalent of an outside attorney for the firm, with whom confidential communications would undoubtedly be privileged.
Large firms may have the ability to create a full-time in-house counsel position and to appoint in that role a lawyer who has no involvement whatsoever in representing the firm’s clients. Smaller firms may be able to establish the role only on a part-time basis, but should do so with similar formality, so that when the in-house lawyer is consulted about the threat of a malpractice claim, it is clear in what capacity her advice is being sought. Choosing a lawyer with particular experience and expertise in professional-liability or ethics matters, and/or providing opportunities for the lawyer to seek special training on such issues, may help to distinguish the role. Referring to the position on the firm’s website will also help to establish it as a matter of record.
Further Issues and Options
It may be useful, if it can be done gracefully, to refer to the in-house counsel role in a firm’s standard engagement letter, and to explain that lawyers in the firm may from time to time seek internal legal or ethical advice on a confidential basis. The in-house lawyer should have a designated matter number for recording her time spent on consultations and investigations, and no such activity should be recorded or billed by anyone to the client’s matter. Likewise, e-mail and other documents should, when created, clearly signal that they relate to the internal consultation or investigation rather than to the client’s matter itself, and strict segregation between the files should be maintained.
Mere creation of an in-house counsel position will not prevent practical difficulties; they are inevitable. For example, in the part-time arrangement likely to be suitable to smaller firms, since the in-house lawyer cannot be consulted as such where she herself is involved in representing the client alleging malpractice, one or more backup lawyers may need to be designated for such contingencies. And judgments will still have to be made as to when a particular issue leaves the realm of everyday conversation between colleagues, and graduates to the actual seeking of legal advice from in-house counsel.
Finally, whether consultation about a potential malpractice claim occurs within a firm or with outside counsel, the lawyer or lawyers involved in the ongoing representation of the client have an ongoing duty—one not altered by the fact of the consultation, or by whether or not it may ultimately be deemed privileged—to provide the client with information known by the involved lawyers that affects the client’s interests. The involved lawyers must also fairly assess and communicate with the client about whether and how they can continue with the representation given the threatened malpractice claim. Here again, this obligation is unaffected by whether or with whom the involved lawyers have consulted about the potential claim.
Yet despite these complications, and while Massachusetts lawyers will watch with interest to see whether the SJC uses the RFF Family Partnership case to provide guidance on this topic, it seems likely that attention to the concepts and formalities described in this article will continue to be important in ensuring that a lawyer threatened with a malpractice claim has an opportunity to seek advice about the threat, and to do so on a confidential and protected basis.
David A. Barry is a partner at Sugarman, Rogers, Barshak & Cohen, P.C., where he focuses his practice on complex litigation, including the defense of professional and products-liability cases. William L. Boesch is also a partner at Sugarman, Rogers. He represents lawyers and other professionals in malpractice cases and other matters, and litigates insurance and intellectual-property disputes.
Sealing the Virtual Envelope: Protecting Attorney-Client Privileged Email in Criminal InvestigationsPosted: September 12, 2012
By Michele L. Adelman and Jennifer S. Behr
The use of email permeates every aspect of our lives – including communications between attorneys and clients. No longer does an attorney provide all advice to a client in a written memorandum or letter – clearly marked “privileged and confidential.” Now, such advice is often provided in an email chain that lacks any indicia of the communication’s privileged nature.
Prosecutors often seek to obtain a suspect’s communications with others as part of a criminal investigation – and what is better than a written communication such as email? Moreover, with court approval, prosecutors may obtain a suspect’s email directly from a service provider (such as Google) without the suspect’s knowledge. It is possible, and often likely, that a suspect’s email contains privileged communications, which may be difficult to identify.
Prosecutors have always had to identify privileged communications during the execution of search warrants. But pulling a folder of written memoranda or correspondence clearly labeled “privileged and confidential” is much easier than sifting through an email chain starting with “what do you think?” Despite the potential magnitude of the problem, there are few published opinions and scholarly commentaries addressing the issue. As set forth below, prosecutors and defense attorneys should construct a system to protect attorney-client privileged email messages.
Prosecutors may obtain emails directly from service providers.
Both federal and state laws allow prosecutors to obtain a criminal suspect’s emails directly from service providers without notice to the suspect. Section 2703(a) of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. (“SCA”) limits the means by which a prosecutor may obtain email from service providers. Thus, a search warrant is required for unretrieved email stored less than 180 days, while a search warrant or simply a court-order or subpoena with notice to the subscriber is required for retrieved email or unretrieved email stored more than 180 days. Massachusetts similarly requires a search warrant or grand jury or trial subpoena to obtain email from service providers in criminal matters. See M.G.L. c. 276, § 1B; M.G.L. c. 271, § 17B. Because these laws are not limited to situations in which a suspect has not yet been charged with a crime, the government may secretly seize a defendant’s email even after charges have been brought.
Email accounts contain privileged communications.
Given the widespread use of email by attorneys, criminal suspects’ email accounts may well contain communications covered by the attorney-client privilege. See, e.g., United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (noting that after executing search warrants for offices and email accounts case agents “had access to approximately 60,000 email communications from or to attorneys representing [defendants]”).
This is especially true where the suspect has already been charged with a crime and obtained counsel. For example, in a recent case in Suffolk Superior Court, Commonwealth v. Kishore, SUCR2011-11006, the Massachusetts Attorney General’s Office used a search warrant to obtain emails directly from Google after the defendant was indicted for an alleged Medicaid fraud kickback scheme. The email account contained hundreds of privileged emails.
The challenge of identifying privileged communications.
Even if prosecutors assume that a suspect’s email contains privileged communications and endeavor to protect them, it is not easy to identify privileged emails. While the use of search terms may be a good first step – searching for words such as “law,” “legal,” and “advice” will not reliably capture all privileged emails. Moreover, even if a prosecutor is aware of the suspect’s lawyer’s or law firm’s name, searching for these names will not be enough. Emails from outside consultants, accountants, and experts working with a suspect’s attorneys may also be privileged. And the presence of these third parties on an otherwise privileged email chain will not destroy the privilege. Cf. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Nonetheless, there are ways to minimize the risk that the privilege will be violated.
Some proposed solutions.
Protecting attorney-client privileged emails during criminal investigations is easier where the suspect has already been charged and is represented by counsel. In such cases there is little danger that the government will undermine its investigation by revealing that it intends to obtain the suspect’s emails. In such circumstances, prosecutors should strongly consider serving a subpoena on defense counsel, requesting production of defendant’s emails, except in cases where countervailing factors make this impractical – e.g., evidence of a significant risk that the defendant will delete emails or that defense counsel will not make a full production. Alternatively, prosecutors may subpoena emails directly from service providers with notice to the defendant (eliminating the risk of deletion or incomplete production), and defense counsel may be given the opportunity to review the emails in the first instance, create a privilege log, and produce the responsive non-privileged emails. Even if prosecutors decline to permit defense counsel review, defense counsel will at least be on notice that the defendant’s emails are being seized. Counsel may then approach the court to make sure adequate protections are in place before privileged emails are in the prosecution’s hands.
It is more challenging to devise a system to protect privileged communications where a suspect has not yet been charged and search warrants are used. The key in these cases is for the government to plan ahead. As the Department of Justice suggests, “Agents contemplating a search that may result in the seizure of legally privileged computer files should devise a post-seizure strategy for screening out the privileged files and should describe that strategy in the affidavit [supporting the search warrant.]” Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, ch. 2(F)(2)(b) (3d ed. 2009) available at http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. There are basically three choices in this situation: in camera review by the presiding judge, review by a special master, or review by a filter or “taint” team of prosecutors or investigators not otherwise involved in the prosecution. Id. Given the scarcity of judicial resources, the only realistic choices are usually using a special master or a filter team, and filter teams are preferred by prosecutors and judges in the majority of cases, because they are faster and far less expensive. Id.
Filter teams have been accepted by courts. For example, in U.S. v. Taylor, 764 F. Supp. 2d 230 (D. Me. 2011), prosecutors obtained a defendant’s emails from Microsoft via search warrant after the defendant was indicted, knowing counsel had been appointed. When the reviewing agent discovered emails between the defendant and his attorney, he contacted the prosecutor. The prosecutor went to court to get approval of a “filter agent” procedure “whereby an AUSA uninvolved with the prosecution would review the e-mail materials to cull out any potentially privileged materials before the investigating agent and the prosecuting AUSA received them.” Id. at 233. Once the privileged emails were identified, they were provided to defense counsel. The defendant objected to the procedure, but the magistrate judge permitted it. Defendant’s motion to suppress was also unsuccessful. While the court recognized that “there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor’s office . . . the government behaved reasonably” in the case by seeking instructions from the court before reviewing the emails. Id. at 234. The judge recognized that it may have been preferable for defense counsel to review the emails first and create a privilege log, however defense counsel had not suggested that procedure. Id. 234-5.; see also United States v. Vogel, No. 4:08-CR-224(1), 2010 WL 2268237, at 7 (E.D. Tex. May 25, 2010) (approving filter agent approach).
But filter teams may be only part of the solution. Defense attorneys and their agents should assist in protecting a client’s privileged communications by more carefully labeling their communications as “Privileged and Confidential.” While there is no guarantee that using the magic words “Privileged and Confidential” will suffice, it would go a long way towards flagging communications as privileged.
Defense counsel and prosecutors should be aware of the risk to attorney-client privilege when criminal suspects’ email accounts are obtained without their knowledge and should work together to construct a plan to protect privileged communications.
Michele L. Adelman is a partner in the business crimes group at Foley Hoag, LLP. She is a member of the BBA Criminal Law Section Steering Committee.
Jennifer S. Behr is an associate in the business crimes group at Foley Hoag, LLP.