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USA v David Correia: Devices sent from client to attorney not privileged [pdf]

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Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#21

Post by caconym_ »

fireattack wrote: post #14
GavinMcG wrote: post #11

Earlier quoted context omitted.

I'll argue that that should work, on some level. Communication with one's attorney is privileged for a good reason, and under your theory the police can interfere with that whenever they imagine the package you've mailed isn't a communication.

I failed to see how you conclude mailing a bloody knife should work from your second sentence (which I agree). Communication should/is privileged, but obviously not any package should be considered as "communication", and even at the worst scenario, having the police to interfere the package whenever they want still doesn't stop you to practice your privilege of communication since there are lots of other forms of co…

So the police decide what is and isn't legitimate communication wrt. qualifying as attorney-client privileged, and that's ok because "there are lots of other forms of communication"?

I don't think this is a cut and dried case where it's obvious the authorities were in the wrong, but the above doesn't really pass muster with me. Where is the line deciding which "communications" are and aren't eligible for attorney-client privilege? For instance, if the package contained printed documents, would that be protected?

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#22

Post by DarkWiiPlayer »

caconym_ wrote: post #21
fireattack wrote: post #14

Earlier quoted context omitted.

I failed to see how you conclude mailing a bloody knife should work from your second sentence (which I agree). Communication should/is privileged, but obviously not any package should be considered as "communication", and even at the worst scenario, having the police to interfere the package whenever they want still doesn't stop you to practice your privilege of communication since there are lots of other forms of co…

So the police decide what is and isn't legitimate communication wrt. qualifying as attorney-client privileged, and that's ok because "there are lots of other forms of communication"? I don't think this is a cut and dried case where it's obvious the authorities were in the wrong, but the above doesn't really pass muster with me. Where is the line deciding which "communications" are and aren't eligible for attorney-cli…

> So the police decide what is and isn't legitimate communication

Who said that? In the end, it is still the judge who decides to dismiss (or not) a piece of evidence if it was aquired illegally.

The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible.

> I don't think this is a cut and dried case where it's obvious the authorities were in the wrong

I think it's a cut and dried case where it's obvious that the authorities were in the right.

Why would handing evidence to your attourney make it legally disappear? If anything, it turns the attourney into an accomplice.

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#23

Post by caconym_ »

DarkWiiPlayer wrote: post #22
caconym_ wrote: post #21

Earlier quoted context omitted.

So the police decide what is and isn't legitimate communication wrt. qualifying as attorney-client privileged, and that's ok because "there are lots of other forms of communication"? I don't think this is a cut and dried case where it's obvious the authorities were in the wrong, but the above doesn't really pass muster with me. Where is the line deciding which "communications" are and aren't eligible for attorney-cli…

> So the police decide what is and isn't legitimate communication Who said that? In the end, it is still the judge who decides to dismiss (or not) a piece of evidence if it was aquired illegally. The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible. > I don't think this is a cut and dried case where it's obvious the authorities were in the w…

> Who said that?

The person I replied to said it.

> The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible.

While true to a point, this sort of argument is deployed as FUD to justify all sorts of overreaches by authorities and it has no place in a serious discussion of this topic unless it comes with an immediate acknowledgement that protection of civil liberties should be an equal or even overriding concern.

Anyway, I think you're projecting. Look at what I wrote, then look at the context.

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#24

Post by bitcharmer »

DarkWiiPlayer wrote: post #9

Uh... imagine you stab someone, and they figure out it was you but haven't found the knife yet. As this would be the nail in your coffin, you put the knife in an envelope and mail it to your attourney. Do you think that would work? no? then why should it in this case?

I don't understand this analogy. Why on earth would you send a crime tool to anyone?

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#25

Post by gamblor956 »

withinboredom wrote: post #18
pdabbadabba wrote: post #5

This title is literally true but misleading. The documents could be seized not because they were sent from overseas, but because the materials inside were not subject to attorney-client privilege in the first place. > It is important to note that if Correia had simply handed his notebooks and electronic devices to his counsel personally, the documents would not be privileged. At least in the U.S., attorney-client pri…

By this logic, the police can wiretap an attorney's office because they don't always talk about "work." Then it's just a matter of some watercooler conversation in the station to get what you really want to know. Yeah, I know that it's illegal, but corruption doesn't care.

That doesn't follow. The de minimus non privileged communication would not support a warrant for a wiretap and would poison every case handled by that firm.

(Parallel construction would generally not be permitted, as that's usually only allowed for technical or inadvertent procedural defects in gathering evidence, not intentional and unlawful violations.)

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#26

Post by gamblor956 »

caconym_ wrote: post #23
DarkWiiPlayer wrote: post #22

Earlier quoted context omitted.

> So the police decide what is and isn't legitimate communication Who said that? In the end, it is still the judge who decides to dismiss (or not) a piece of evidence if it was aquired illegally. The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible. > I don't think this is a cut and dried case where it's obvious the authorities were in the w…

> Who said that? The person I replied to said it. > The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible. While true to a point, this sort of argument is deployed as FUD to justify all sorts of overreaches by authorities and it has no place in a serious discussion of this topic unless it comes with an immediate acknowledgement that protectio…

Context not required. A knife isn't a form of communication so mailing it to your lawyer doesn't make it privileged.

Also, his comment is not FUD. It reflects the original state of things. The attorney client privilege is an exception to the norm, that created the civil right you claim you wish to discuss.

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#27

Post by gamblor956 »

mc32 wrote: post #13
rabanne wrote: post #12

Hmmn, I always thought "communications for the purpose of securing legal advice" was recognized more broadly. If I send a copy of a document which can incriminate myself and was created before hiring a lawyer, to a lawyer for legal advice, can the government seize it? If so, if I outline a document after hiring a lawyer and then send it for legal advice, can the government seize it?

I think if you start contacting lawyers something like “hey I did a bank heist, I need your advice” before establishing client-lawyer privilege then that communication isn’t automatically privileged by “confidence”.

No you're fine in that situation. That communication is automatically privileged, even if the attorney doesn't take your case, because it was part of a communication soliciting legal advice.

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#28

Post by gamblor956 »

caconym_ wrote: post #21
fireattack wrote: post #14

Earlier quoted context omitted.

I failed to see how you conclude mailing a bloody knife should work from your second sentence (which I agree). Communication should/is privileged, but obviously not any package should be considered as "communication", and even at the worst scenario, having the police to interfere the package whenever they want still doesn't stop you to practice your privilege of communication since there are lots of other forms of co…

So the police decide what is and isn't legitimate communication wrt. qualifying as attorney-client privileged, and that's ok because "there are lots of other forms of communication"? I don't think this is a cut and dried case where it's obvious the authorities were in the wrong, but the above doesn't really pass muster with me. Where is the line deciding which "communications" are and aren't eligible for attorney-cli…

The line is definitely on the side of something needing to be least be in the form of a communication...

But that itself isn't enough. The privilege only protects the communication related to selling or providing legal advice, it doesn't blindly apply to every communication with a lawyer (though that is the presumption the police must overcome). Documents created in the commission of a crime (from planning to execution to coverup) are evidence and therefore would not be protected and moreover your attorney would be legally obligated to turn them over to the police.

There are only 100+ years of case law on this...

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#29

Post by caconym_ »

gamblor956 wrote: post #26
caconym_ wrote: post #23

Earlier quoted context omitted.

> Who said that? The person I replied to said it. > The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible. While true to a point, this sort of argument is deployed as FUD to justify all sorts of overreaches by authorities and it has no place in a serious discussion of this topic unless it comes with an immediate acknowledgement that protectio…

Context not required. A knife isn't a form of communication so mailing it to your lawyer doesn't make it privileged. Also, his comment is not FUD. It reflects the original state of things. The attorney client privilege is an exception to the norm, that created the civil right you claim you wish to discuss.

> the civil right you claim you wish to discuss.

Since you've accused me of bad faith, I'll invite you now to go fuck yourself.

You're a fool if you think context doesn't matter. I asked the questions I did to invite that person to consider and clarify his position, which I didn't entirely disagree with. Context is how a conversation accumulates non-trivial meaning, and a lack of respect for it generates the sort of valueless crap I'm replying to right now.

This conversation, by the way—the one between you and me—is now over.

Re: USA v David Correia: Devices sent from client to attorney not privileged [pdf]

#30

Post by mc32 »

gamblor956 wrote: post #27
mc32 wrote: post #13

Earlier quoted context omitted.

I think if you start contacting lawyers something like “hey I did a bank heist, I need your advice” before establishing client-lawyer privilege then that communication isn’t automatically privileged by “confidence”.

No you're fine in that situation. That communication is automatically privileged, even if the attorney doesn't take your case, because it was part of a communication soliciting legal advice.

It’s not clear cut if you haven’t discussed terms, representation, etc. the attorney might say, “I’m booked” before asking additional information.
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