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USA v David Correia: Devices sent from client to attorney not privileged [pdf] (courtlistener.com)
62 points by DyslexicAtheist 15 days ago | hide | past | favorite | 38 comments



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 privilege does not apply to just any old thing you send to your lawyer. It's applicability depends on the content of the communications.

> Because nothing in the package revealed any privileged communications between Correia and his counsel, the package cannot become privileged “merely because it was sent . . . between an attorney and client.”


> 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.

agreed.

I initially wanted to link to this tweet[1] with more context, but then decided to link to the original content/pdf instead. The word "overseas" should probably be removed but the window that allowed me to edit the title was already over unfortunately. That they happened to be overseas added some nuance (background info) in this specific case but it is confusing in the wider context of the discussion.

[1] Paul Oetken rules that your phone can be seized with a warrant from DHL if you're sending it to your lawyer from overseas. So not a good way to avoid your phone being seized if you know you're going to be arrested on arrival. https://twitter.com/emptywheel/status/1275095032954052608


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.)


> 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. “[P]re-existing documents . . . not prepared by the [client] for the purpose of communicating with [her] lawyers in confidence . . . acquire[] no special protection from the simple fact of being turned over to an attorney.”


With a warrant, that seems legit. You can't just say the magic words and make evidence disappear.


Honestly, I would have rather just encrypted everything there, reset the phone and sent it.

I wonder if this package was just to muddy the waters.


Without knowing anything of the case aside from reading this document. This feels like the defendant is between a rock and a hard place and they were hoping to get the information intercepted in an attempt to have the evidence thrown out as their defense strategy.


Right, I'm not a lawyer but even if you have a copy of those items that drive and phone... if it was found from a different source, would it still be inadmissable?


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?


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.


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.


> and under your theory the police can interfere with that whenever they imagine the package you've mailed isn't a communication.

And they should; if it turns out, that it is actually protected information, then it couldn't serve as proof anyway.

Otherwise any and all evidenve would be "safe" the moment you give it to your attourney, which would make it rather easy to get away with anything.


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 communication.


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?


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...


> 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.


> 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.


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.


If the package contained printed documents explicitly prepared in order to communicate with his attorney: privileged.

If the package contained existing documents that would be subject to discovery anyways, htat you're happening to ship to your lawyer: not privileged.


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?


If they overshoot, there's always motion to suppress evidence and associated consequences (fruit of poisonous tree, grounds for appeal, etc).

I agree it risks being problematic, but allowing a blanket unsearched conduit for physical evidential items from defendants is problematic, too.


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.


I'd argue there should be a line somewhere. There's cases where the authorities may have reason to believe that something is not protected attourney-client communication and intercept it, but at the same time they should not be allowed to just intercept anything because it could be evidence disguised as communication.


Yeah. I'd compare this to the fifth amendment issues around providing a password to a computer, safe, etc., where (IIRC) compelling a defendant to provide the password is contingent on having strong arguments to the effect that they own the device in question, that they have the password, and most importantly that the contents of the device are essentially a foregone conclusion.

That same "foregone conclusion" doctrine should apply here too. IMO (but IANAL) the court's argument here could be easily applied to interception/seizure of any communications between client and attorney, which is absurd.

edit: I guess by "the court's argument" I mean the mostly-implicit notion that "filter teams" are a sufficient mechanism to obviate any concerns over the government intercepting privileged communications. Most of what I read seemed to be an implicitly (again with the implicitude!) ex post facto justification of seizing the package based on the fact that it did contain non-privileged materials, and said materials would have been subject to discovery anyway.


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


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".


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?


My understanding, based on what I've just read, is that it depends on whether the document was created in order to obtain legal advice.

If you start the document with "Dear Lawyer, here is my story so far including all the incriminating bits" then that is privileged. However if you write "Dear Joe, hide the money from the robbery in rented garage" and subsequently send a copy to your lawyer then it is not privileged. Both of these are true regardless of when you wrote the document or hired the lawyer.

This is always a tricky problem, especially with a computer which may contain both privileged information and unprivileged evidence of a crime. See https://www.justice.gov/sites/default/files/criminal-ccips/l... starting at page 109 for more on how the police are supposed to deal with this.


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.


That's irrelevant from the point of view of the privilege applying. What matters is that the communication was for the purposes of soliciting legal advice from an attorney, otherwise the DA could just subpoena an attorney that the defendant talked to but was unable to afford or who was too busy to handle the particulars of the defendant's case.


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...


Not sure why this'd be a surprise to anyone. Customs can do the same when you cross borders.

https://www.propublica.org/article/can-customs-border-protec...

> According to federal statutes, regulations and court decisions, CBP officers have the authority to inspect, without a warrant, any person trying to gain entry into the country and their belongings. CBP can also question individuals about their citizenship or immigration status and ask for documents that prove admissibility into the country.


Some people think the law is something to hack like a video game or Etherium, not a statement of principles and rules that are applied with human judgment.


More details of the arrest/accusation here:

https://www.nytimes.com/2019/10/16/nyregion/david-correia-uk...




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