Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below). This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts. I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump. As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.
Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.
Attorney-Client Privilege — Part IV: The Crime-Fraud Exception
This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”
I’ll tell you, it was a sleepless night. The — I laid out kind of what I thought my options were yesterday. I thought about them again last night. I thought about them overnight. I wrote and rewrote what I was going to do. I went to the gym. I thought maybe the treadmill would either calm me down — which it has, of course. Give me more — more reflection. It did. And I went back and looked again, and looked again. (p.12367)
Probably rose-colored glasses. Thought about that last night, too. I took a moment to clean them; they’re not as rose-colored today. And it’s been pretty shaken, and it might be time for me to retire, frankly. That decision I’ll be making over the next week or two I think it might be here, because I’ve never seen anything like it. I’ll just ponder it as we go forward. (p.12374)
Judge Vance Spath in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, R.M.C. 803 session, 16 February 2018.
Air Force Colonel Vance Spath, the presiding judge in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, the Guantanamo USS Cole war crimes trial, has had his faith in the law and what lawyers do shaken so profoundly that he is contemplating resigning from active military duty. Epiphany, moment of clarity, or chicanery disguised as faint claims of a tortured judicial soul?
Leaving the client without a lawyer to protect his rights could even be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.
US Navy Lieutenant Alaric Piette
In an earlier post I nominated Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay, for the 2017 Defense Lawyer Profile of Courage. Brig. Gen. Baker risked his military career, his future, his retirement benefits and much more by doing the right thing when lesser defense counsel in his place would have caved in or have deluded themselves into believing that going along to get along was ethically the right thing to do.
Brig. Gen. Baker gave no quarter: he discharged three civilian members of Abd al-Rahim al-Nashiri’s defense team (Richard Kammen, Rosa Eliades and Mary Spears), who were no longer able to ethically represent their client because communications with their client were secretly being monitored by the US government. This left al-Nashiri with just a single military lawyer, former US Navy SEAL, Lieutenant Alaric Piette. By his own admissions Lt. Piette is not learned – qualified by specialized training and experience to defend Guantanamo accused in cases where the US government is seeking the death penalty. Continue reading “ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW”
I greatly appreciate those who take time to comment on my blog posts. Sometimes praise. Other times critical. Often expanding the conversation. Always welcome. When appropriate, I will make a brief reply directly in the comment function. However, whether due to the subject matter or length of the reply, I will occasionally reply in a free-standing post. Today’s post is such an occasion, as I respond to a lengthy comment from Mr. Bryan Miller to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest.