Heather Cobun//Daily Record Legal Affairs Writer//September 10, 2019
//Daily Record Legal Affairs Writer
//September 10, 2019
Attorneys for a Baltimore law firm are asking a federal appeals court to prohibit prosecutors from reviewing “tens of thousands” of electronic files seized from a partner’s office earlier this year.
The Baltimore Sun reported in June that the Drug Enforcement Administration and the Internal Revenue Service had executed federal search warrants at the office of Baltimore attorney Ken Ravenell, as well as at Brown, Goldstein & Levy LLP, the Baltimore law firm where Ravenell’s attorney Joshua Treem works.
On Tuesday, the Sun reported that Brown, Goldstein & Levy is contesting the scope of the June raid and the manner in which client files were handled.
Also on Tuesday, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard oral arguments on the dispute.
The briefs have been redacted to omit names and some details. In those filings, federal prosecutors accuse “Target Lawyer A,” believed to be Treem, of engaging in criminal conduct while representing “Target Lawyer B,” believed to be Ravenell.
Lawyer B is under investigation for money laundering, narcotics and obstruction-related crimes, according to the brief, specifically “assisting drug dealers (to) sell drugs, laundering the proceeds of drug dealers and then attempting to cover up their crimes by obstructing investigations of the drug dealers.” Lawyer A is accused of “obstructive conduct” that stymied the investigation into Lawyer B.
Neither attorney has been criminally charged.
A spokeswoman for Brown, Goldstein & Levy did not respond to a request for comment Tuesday. James P. Ulwick, of Kramon & Graham P.A., who represents Brown, Goldstein & Levy, declined to comment Tuesday afternoon.
Prosecutors requested a warrant for Treem’s client file relating to Ravenell and Treem’s email, which was executed June 18.
Attorneys for Treem argued in their brief to the 4th Circuit that a “filter team” of prosecutors set up to review materials was “fishing in an ocean of unrelated client confidences” and that a magistrate judge and a special master should conduct the review.
Ulwick argued that the raid was an “adversary review of privileged material” that “goes against attorney-client privilege.” He said when the government found emails relating to the investigated client in “Lawyer A’s” possession, the raid should have stopped there. The law firm is seeking the return of files relating to its other clients.
Ulwick also said that law firms are a “repository of privileged communications” and that any review should be done either by “the holder of the privilege or the court.” He concluded that he recognizes the court’s return of the documents would make the investigation “less efficient” but said, “That’s the cost of attorney-client privilege.”
The government argued in its briefs that a magistrate judge and a U.S. District Court judge both approved the proposed review process and found it to adequately protect client confidences.
“The Government did not lightly take this step,” the prosecutor’s brief states. “Rather, this warrant request came after the Government exhausted its investigative efforts through other means.”
Assistant U.S. Attorney Derek E. Hines, who argued for the government Tuesday, told judges there was “no record of actual harm in this case.” He said the work of the filter team is currently in the hands of the magistrate judge.
The Justice Department manual for prosecutors dictates procedures for searching an attorney’s office and encourages the “least intrusive approach” to obtain evidence, such as seeking a subpoena. Federal agents served a subpoena on the offices of Baltimore’s Silverman, Thompson, Slutkin & White LLC in April during the investigation of Catherine Pugh, then the mayor of Baltimore. The relevant files had been sequestered and no other client files were seen, according to a statement from the firm.
U.S. Department of Justice protocols require prosecutors to receive approval from the U.S. attorney for the district and from the criminal division of the department in Washington before searching an attorney’s office and files, according to the filing. Prosecutors crafted a “rigorous process” to have a team review the seized materials and to provide only those documents to prosecuting attorneys that a magistrate judge had determined were not privileged or were excepted from privilege.
“In short, the Government sought, and the Magistrate Judge imposed, a rigorous process by which client confidences would be protected and only a narrow set of documents that strictly met the crime-fraud standard would ever get to the Investigative Team, and only then after a Magistrate Judge exercised judicial review of the matter,” the government argued. “The process also ensured that client matters wholly unrelated to the investigation would never be shared with even the Filter AUSAs, much less the Investigative Team; the Filter Agents would not forward along non-material documents unrelated to the investigation of Target Lawyers A and B.”
“Law Firm A” — Brown, Goldstein & Levy — filed an emergency motion for a temporary restraining order June 28 in U.S. District Court in Baltimore, in an attempt to halt the review of the seized documents, according to the filing. The court denied the motion and found the strict review protocols in place were reasonable. The firm appealed to the 4th Circuit.
In an appellate brief filed in July, attorneys for Treem argued the seizure of all of his emails, whether they concerned the client under investigation or not, was too broad. The emails included discussions with other lawyers about their clients, privileged materials prepared by other lawyers, and other confidential documents not related to Ravenell, the brief argues.
Treem had more than 37,000 emails in his inbox, of which only 62 were from Ravenell or contained his last name, according to the brief. Similarly, only 54 of his 15,000 sent emails were to or mentioned Ravenell, according to the brief.
Attorneys representing the firm contend that the particular care necessitated by searching law firms requires clients unconnected to the search be assured that their confidential materials are not at risk.
“If clients and their lawyers believe that prosecutors may one day sift through their communications in searches involving unrelated matters, clients are less likely to be candid with their lawyers, and lawyers will hesitate before writing down what they need to write down,” the brief says. “This is unfair to clients, and harms the attorney-client relationship.”
Calling a review of privileged communications by prosecutors “an affront to the Sixth Amendment,” the law firm argued that “(n)o protocol can turn a federal prosecutor into a neutral magistrate.”
Maura Mazurowski of Virginia Lawyers Weekly contributed to this report from Richmond, Virginia.t