Attorney Client Privilege

Feds Can Review N.J. Lawyer's Client Files, Judge Rules

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A federal judge has OK’d a plan for the FBI to review computer records that a New Jersey lawyer says concern all of his clients for the past 15 years, finding that the procedure established for doing so is adequate to protect the rights of all concerned.

The ruling by U.S. District Judge Robert Kugler concerns a May 8 search of the Cherry Hill, N.J., law office of attorney Donald Manno by FBI agents, reports the New Jersey Law Journal.

They were executing a search warrant that authorized them to seize documents “from Aug. 1, 2006, to date that pertained to 43 individuals and entities, including alleged organized crime figure Nicodemo Scarfo,” the legal publication writes. Among the items sought were securities-related and financial documents and bank, telephone and tax records.

The article says agents copied six computer hard drives and removed several laptops and other computer equipment from Manno’s office.

Under the review process OK’d by Kugler, a so-called “taint team” or “filter team” comprised of an FBI agent and a federal lawyer outside the prosecution team initially screen seized material. If it is determined to be responsive by an FBI agent, an assistant U.S. Attorney then conducts a privilege review, the legal publication explains.

For material that could be privileged, he will also determine whether the crime-fraud exception or another waiver removes the privilege. If the material isn’t privileged, or the privilege is waived, his next step is to meet with Manno to try to agree on whether to produce the material.

“Though Kugler said he shared Manno’s concern that Smith might see materials relevant to other investigations he might be working on now or in the future, he termed the concern ‘speculative,’ adding that if Smith does see such materials he should stop immediately and alert the court,” the article states.

Clients who feel their privileged materials were wrongly reviewed can move to suppress in any subsequent criminal case, the judge points out, as can Manno.

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