[New York Law Journal - 5/8/02] Government procedures designed to protect the sanctity of client files seized from indicted attorney Lynne Stewart's office are inadequate, her lawyer argued in court papers filed in New York on Tuesday.
Defense lawyer Susan V. Tipograph argued that a special master should be appointed to segregate Stewart's client files from documents sought by the government in the case of Sheik Omar Abdel-Rahman.
Tipograph argued that an independent party is needed to safeguard the attorney-client privilege and protect attorney work-product for cases unrelated to the indictment and ongoing investigation of Stewart, who was charged last month with helping imprisoned Sheik Abdel-Rahman communicate with his terrorist followers.
But government prosecutors, in opposing the motion to appoint a special master, contended that procedures for reviewing evidence seized during a seven-hour search of Stewart's office on April 9 "provide ample protection to guard against any improper use by the Government of potentially privileged materials."
It will be up to U.S. District Judge John Koeltl, of the Southern District of New York, to decide whether Stewart's client files are safe in the hands of the government, or whether a special master should be appointed. Both the defense and the prosecution claim to have precedent on their side.
"This is not about the integrity of any particular agents or prosecutors, this is about something more fundamental than that," Tipograph said yesterday. "We don't want the government interfering with our relationships with our clients. The government cannot be the arbiter of what is appropriate in an attorney-client relationship."
Stewart was indicted April 8 for providing material support for terrorism, two counts of conspiracy and making false statements. Authorities alleged that, in violation of Special Administrative Measures, she helped facilitate communications between the Egyptian-based Islamic Group (IG) and Sheik Abdel-Rahman, who was convicted in 1995 of seditious conspiracy as part of a plot to commit acts of terror in New York City.
In his memorandum filed Tuesday, Assistant U.S. Attorney Gary Stein described both the search of Stewart's office and the process for maintaining an "ethical wall" that ensures the sanctity of client files where an attorney's offices have been searched on an unrelated criminal matter.
The search, he said, was conducted by a "privilege team" that included Stein as the designated "walled" Assistant U.S. Attorney.
Stein's job as "walled AUSA" is to review seized materials for privileged matter, and he is forbidden from showing privileged documents to the prosecutors and agents responsible for the underlying investigation of Stewart.
Should Stein come across documents that are "arguably privileged," he is required to submit the documents to a judge or a magistrate judge for review.
In his memorandum, Stein described a contained search of Stewart's offices at 351 Broadway on April 9, saying that agents, who are also "walled off" from agents assisting in the prosecution of Stewart, performed only a "cursory examination of files and documents to see if any of the names listed on the warrant appeared therein."
Stein also assured Judge Koeltl that limitations were in place containing the manner in which computer discs taken from Stewart's office were to be reviewed.
Stein argued that appointment of a special master would result in "needless delay in a case where the Government has a compelling interest in expeditious review ... ."
NATIONAL SECURITY
He also said that the appointment of a special master would implicate national security concerns. For example, Stein said, a special master would have to be provided a copy of the sealed search warrant in the case as well as "a list of those persons believed to be related to the charged conspiracy and/or members of IG."
"However, a number of persons who would be named on such a list are unaware that their activities are being scrutinized by law enforcement, and disclosure of such a list could compromise this and other ongoing investigations." Moreover, he said, the special master would have to become involved in the "time-consuming process" of obtaining national security clearance.
Finally, Stein and fellow Assistant U.S. Attorney Christopher J. Clark argued that the government would be prejudiced by appointment of a special master as proposed by Tipograph, who they said outlined a procedure that would give her, but not the privilege team, the right to review documents lawfully in the possession of the government.
In her memorandum, Tipograph raised several concerns about what she called the "so-called" privilege team, and its claimed ability to limit the use of Stewart's files to the Abdel-Rahman case.
"Such a claim fails to recognize that files and other materials seized from the Stewart offices concern other clients and criminal matters being defended by attorneys in the law suite, and prosecuted by the very agencies who participated in the search and are part of the taint team," she said.
Taking a very different view of the case law than that held by Stein, Tipograph contended that, "Courts have consistently recognized the inadequacy of a taint team reviewing law office files."
"In case after case, courts have assigned special masters as being preferable to the use of a prosecution taint or privilege team," she said.
No hearing date has been set yet for the defense's motion.
In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only.
[posted 5/8/02]
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