September 2014

September 2014 Cover

How can a white collar defense attorney protect the attorney-client privilege after the government executes a search warrant?


Articles in this Issue

  1. Affiliate News

    NMCDLA honors Roswell, NM, lawyer Jess Cosby with its 2014 Charles Driscoll Award and the Washington Association of Criminal Defense Lawyers recently recognized outstanding members at its annual award dinner at Chelan, WA.

    Gerald Lippert

  2. Book Review: Criminal Defense Victories In the Federal Circuits

    Barak Cohen, an attorney in Washington, DC, reviews Matthew Kaiser's book Criminal Defense Victories in the Federal Circuits. Kaiser describes the book as a strange but worthwhile read.

    Barak Cohen

  3. Book Review: Montanamo: Some Secrets Must Be Kept

    Gail Gianasi Natale reviews Christopher Leibig's book, Montanamo: Some Secrets Must Be Kept. A page turner set in Northwest Montana, Leibig's novel was inspired by the real-life but unsuccessful quest by the impoverished small town of Hardin, in Southeast Montana, to house Gitmo prisoners in its unused Two Rivers Correctional Institution.

    Gail Gianasi Natale

  4. Book Review: The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corrup

    Andrew George, a white collar defense attorney in Washington, DC, reviews William Cohan's book, The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption Of Our Great Universities.

    Andrew George

  5. Ethical and Strategic Issues Unique to Tax Cases

    Criminal tax cases present unique challenges. If a defense attorney is dabbling in this area, it is important to understand not only the tax and procedural nuances specific to criminal tax cases but the ethical issues as well. Sarah Q. Wirskye discusses the Fifth Amendment act of production privilege, filing of the current year return, dealing with the prior year return, and the required records doctrine. She also reminds defense attorneys that they should be aware of potential conflicts of interest that may arise with joint representation in a civil tax examination, which may later become a criminal case.

    Sarah Q. Wirskye

  6. From the President: NACDL’s Voice Is Being Heard Loud and Clear

    In October 2014, the U.S. Department of Justice announced that it will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel. In 2012, NACDL authored and adopted an ethics opinion determining that it is unethical for a prosecutor to suggest or a defense lawyer to agree that a defendant may waive IAC claims in plea agreements.

    Theodore Simon

  7. Getting Scholarship Into Court Project

    The “Getting Scholarship Into Court Project” brings helpful law review articles and other writings to the attention of criminal defense attorneys. The project’s purpose is to identify scholarship that will be especially useful to courts and practitioners. Summarized on this page are articles the project’s advisory board recommends that practicing lawyers take the time to read.

    Getting Scholarship Into Court Project

  8. If I Can’t Be in the Grand Jury Room, Maybe My PowerPoint Can: Revisiting The Government’s Duty To P

    Defense lawyers are not permitted in the grand jury room, and the government has no constitutional duty to present exculpatory evidence to the grand jury. The absence of a constitutional right or statutory obligation on the part of the government does not, however, foreclose other avenues for the defense to put its presentation before the grand jury. By looking to the government’s own policies, the defense lawyer may have an opportunity to be heard.

    Jeffrey B. Coopersmith and Rachel Herd

  9. Illinois Enacts Eyewitness Identification Reforms

    Illinois Gov. Pat Quinn signed a law in August 2014 that sets forth procedures to be followed when an eyewitness to a crime is called upon to attempt to identify the perpetrator, whether through an in-person or photographic identification procedure. The statute does not apply to a “showup,” in which a suspected perpetrator is presented to the eyewitness at or near a crime scene. Effective January 2015, the statute represents a major step forward in the effort to avoid mistaken eyewitness identifications, which causes many wrongful convictions in Illinois and elsewhere.

    Thomas P. Sullivan

  10. NACDL News: Community Discussion in Arlington, Virginia: Alleviating the Collateral Damages

    of Arrest and Conviction

    On Sept. 18, NACDL in conjunction with Offender Aid and Restoration (OAR) and George Mason University presented a community discussion regarding the collateral consequences of arrest and conviction in Virginia and the United States.

    Ivan J. Dominguez and Isaac Kramer

  11. NACDL News: Diane DePietropaolo Price Appointed Indigent Defense Training Manager

    On Sept. 3, NACDL announced the appointment of Diane DePietropaolo Price as indigent defense training manager. In this role, she supports NACDL’s Indigent Defense Department and its broad efforts to support indigent defense providers across America. She also develops live and recorded trainings for public and private defenders who represent the indigent accused and will coordinate trainings in consultation with a national working group of public defense leaders and training experts.

    Ivan J. Dominguez and Isaac Kramer

  12. NACDL News: DOJ Acts Boldly in Case to Expose Indigent Defense Deficiencies

    With the nation’s indigent defense system mired in a persistent crisis of underfunding as a result of the failure of the states to enforce the Supreme Court’s landmark Sixth Amendment right to counsel decision in Gideon v. Wainwright (1963), the Department of Justice has acted boldly in a case that seeks to expose the resulting deficiencies. In the case of Hurrell-Harring et al. v. New York, a class action brought by the New York Civil Liberties Union challenging systemic deficiencies in the indigent defense services in several New York counties, the Department of Justice, on behalf of the federal government, filed a Statement of Interest in the pending litigation on Sept. 25.

    Ivan J. Dominguez and Isaac Kramer

  13. NACDL News: Experts Offer Recantation Evidence Tips

    On September 26, 2014, NACDL presented the live streaming webcast “Recantation Evidence: How to Investigate & Use It Effectively in Innocence Claims.”

    Ivan J. Dominguez and Isaac Kramer

  14. NACDL News: Kentucky Supreme Court Upholds Ethics Opinion Barring Plea Agreements Containing Waivers

    In a landmark decision, the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky’s Rules of Professional Conduct. The case, United States v. Kentucky Bar Association., was decided on Aug. 21.

    Ivan J. Dominguez and Isaac Kramer

  15. NACDL News: NACDL President Discusses Indigent Defense, Concern About Restrictions On the Participat

    On Aug. 22, NACDL President Theodore Simon delivered an important address to a conference of federal defenders and panel attorneys in Cleveland, Ohio, in which he expressed concern about the state of federal indigent defense.

    Ivan J. Dominguez and Isaac Kramer

  16. NACDL News: Sen. Ted Stevens’ Defense Attorney Releases Behind-the-Scenes Account of 2008 Trial and

    Rob Cary, a defense attorney for Sen. Ted Stevens of Alaska, released a new book on Sept. 16 — Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens (NACDL Press/Thomson Reuters) — recounting the trial six years ago of a powerful senator.

    Ivan J. Dominguez and Isaac Kramer

  17. NACDL News: Volunteer for Clemency Project 2014

    Clemency Project 2014 (CP 2014) is seeking volunteers in the national pro bono effort to secure freedom for many federal inmates who are serving unnecessarily harsh sentences for nonviolent offenses.

    Ivan J. Dominguez and Isaac Kramer

  18. Protecting the Attorney-Client Privilege When the Government Executes a Search Warrant

    When the government executes a search warrant in a white collar case, it runs a higher than usual risk of seizing documents or electronic information protected by the attorney-client privilege. Sara Kropf explores the steps defense counsel should take to protect the privilege. If the government intentionally violates “taint team” procedures ordered by the court, there are sanctions or specific injunctive relief defendant can request to remedy the misconduct.

    Sara Kropf

  19. Responding to Search Warrants in White Collar Criminal Investigations

    Responding to a corporate search in real-time presents uniquely difficult challenges for defense counsel. A search is a disruptive, unnerving show of force with the potential to shut down a business or cripple its reputation within the community. Armed agents have immediate access to significant documents and essential employees, which the government does not otherwise enjoy when it issues a grand jury subpoena. Counsel for the corporation must react quickly, cautiously, and calmly to minimize the potentially devastating consequences of the search. If a corporation has advance notice that it may be subject to a search, then employees should be appropriately trained to manage and respond to search warrants.

    Andrew S. Feldman

  20. Whether Fish or Fowl — Prosecutorial Overreach Is a Poisonous Aspect of Overcriminalization (Inside

    One misapplication of criminal law is the overly broad expansion of criminal statutes by prosecutors, such as the statute involved in the case of Yates v. United States.

    Norman L. Reimer

  21. White Collar Crime Policy

    The Congressional Task Force on Overcriminalization conducted 10 investigative hearings in 2013-2014. Topics included reducing the number of federal crimes and eliminating mandatory collateral consequences of conviction.

    Shana-Tara Regon