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

It wouldn't work and it's not supposed to work. Attorney-client communications protects legal advice and communications provided pursuant to legal advice. It is not a vehicle for hiding evidence: https://www.abajournal.com/magazine/article/hand_it_over

> But on the other hand, ABA Model Rule 3.4 (Fairness to Opposing Party and Counsel) states another widely recognized principle, that a lawyer may not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” (The ABA Model Rules are the basis for most professional conduct rules that regulate lawyers at the state level.) The commentary to Model Rule 3.4 describes how courts have tried to split the difference between these two obligations.

> Shipp was an assistant bar counsel in 1983 when a lawyer called him with a dilemma. A client had just brought in a gun. The lawyer couldn’t turn the gun over to the police without revealing where it came from, but the lawyer couldn’t just keep the gun or dispose of it, either. What, the lawyer asked Shipp, should he do?

> Shipp called a contact in the U.S. attorney’s office, who suggested that Shipp take the gun from the other lawyer and deliver it to the police himself. So Shipp arranged to meet the lawyer, took possession of the gun, brought it back to his office, and called the police and told them to come and get it, which they did.

This has actually literally happened. The sibling comment has the full story, but the tldr is that someone accused of murder brought the actual murder weapon (a gun) into his lawyer's office and turned it over. Legal and ethical issues swirled, the lawyer ended up giving it to a third party to turn over to the police so he wouldn't reveal where the gun came from.

I'm assuming he didn't ask his lawyer whether that would be covered by attorney client privilege. I can't imagine any sane lawyer saying "yes, please bring the murder weapon to my office".

Yes, I read the document.

I'm not a lawyer, but the reasoning is problematic to me because it draws equivalence between discovery via the attorney after receipt of the documents and interception of the documents before they reach the attorney, arguing that since the former is standard procedure and the latter is equivalent then the latter is acceptable. However, we may reasonably anticipate that sealed messages and packages sent from clients to their attorneys will often contain legitimate privileged communications, so what we have here is basically the government saying don't worry, we're going to read any and all privileged communications you do send, but trust us—we'll forget all of it.

The court's reasoning seems to handwave this concern with allusions to "filter teams". Given that they're essentially acting on behalf of the prosecution, I don't find that particularly satisfying, especially since the use of "parallel construction" by local and federal law enforcement, often acting together, is not unheard-of.

I'm sure there's precedent for all of it. Often when we're talking about relatively unaccountable federal agencies, this kind of precedent seems to arise from the government asking for forgiveness rather than permission, so to speak—so this is not an argument that what is isn't what is, but rather that, given the spirit of attorney-client privilege doctrine, I find this reasoning deeply unsatisfying.

I agree that relying on defendants and their attorneys to be truthful in discovery is, perhaps, equally problematic from a law enforcement perspective. That's where we should start throwing other things onto the balance, like concern for erosion of civil liberties.

If they X-rayed the package and saw it was just a knife or gun or whatever in there, I could see an argument for seizing it as evidence. But if it's just information storage devices—say, a printed document, impossible to distinguish as privileged or not without reading it, is the government justified in seizing it and deciding for themselves? Why then does the government not enjoy the right to read every single communication between client and attorney, and to bug the rooms where they meet, given that the government must be allowed to efficiently slurp up all non-privileged information that passes between them and can be trusted to ignore what is privileged?

Sounds like we largely agree, then. :)

I'm not ready to say I think this should or shouldn't be allowed and under what circumstances, because I'm not a lawyer or legal scholar. It just bugs me when people post these reductive black-and-white takes without even seeming to consider how complicated these issues really are. If it was so simple, that document would be a lot shorter, I think.

That's not how I read it:

"The establishment of the attorney-client relationship involves two elements: a person seeks advice or assistance from an attorney; and the attorney appears to give, agrees to give or gives the advice or assistance[1]"

and

"That “special relationship” between an attorney and his/her client is generally established by mutual assent/consent. This is most often confirmed by a written “retainer”[2]"

Other states have similar determinants.

[1]https://www.lsba.org/PracticeAidGuide/PAG1.aspx

[2]https://attorneys.uslegal.com/malpractice/establishing-the-a...