Law firm raids bode ill for lawyers and their clients

Opinion Saturday 14/April/2018 15:40 PM
By: Times News Service
Law firm raids bode ill for lawyers and their clients

For New Jersey lawyer Donald Manno, news reports about the Federal Bureau of Investigation raid on the home and offices of President Donald Trump’s attorney Michael Cohen brought back "a lot of dark memories.”
In 2008, Manno’s law office was raided by federal investigators pursuing a racketeering case against a suspected mobster who was a client and friend of the lawyer. The FBI copied Manno’s computer hard drives and carted away evidence.
Three years later, when New Jersey prosecutors indicted Manno’s client for fraud, money laundering and extortion, they also charged the lawyer. While he was ultimately acquitted, Manno spent years defending himself. He predicted a tough road ahead for Cohen.
A longtime personal lawyer for Trump and counsel to the Trump Organization, Cohen is under investigation for possible bank and tax fraud and for possible campaign law violations, including a $130,000 payment to porn star Stormy Daniels, according to Reuters' reporting.
Cohen defence lawyer Stephen Ryan said pn Monday that federal investigators had improperly seized confidential communications between Cohen and his clients. Trump called the seizure "a disgrace."
Cohen did not immediately respond to a Reuters request for comment. Raids on law firms are extremely rare, according to six defense lawyers and former prosecutors interviewed on Tuesday.
Justice Department rules explicitly instruct prosecutors to avoid compromising the confidentiality of communications between lawyers and their clients. The government typically seeks a search warrant for a lawyer’s client records only when prosecutors have lost faith in less drastic measures, such as voluntary cooperation or a subpoena, said Washington, D.C. defence lawyer Barry Pollack.
Search warrants to raid law firms, unlike routine search warrants, must be authorized by top Justice Department officials. "The burden is extraordinary,” said John Wesley Hall, an Arkansas lawyer specializing in the Fourth Amendment. "The rules make it hard on purpose.”
Only a handful of law firm search warrants have been publicly disclosed. But based on that record, it is safe to say that law firm raids do not bode well for lawyers or their clients.
New York defence lawyer Gerald Lefcourt said warrants against lawyers almost always end in charges, given the high bar the government has to meet to obtain them. Lefcourt represented defendants in a 1990s racketeering conspiracy case in which the FBI raided the law firm Lysaght, Lysaght & Kramer. The law firm’s name partners were eventually convicted at trial.
Most often, said Pollack, prosecutors have executed search warrants against law firms suspected of helping drug cartels or organized crime groups launder money or engage in fraud. Investigators may go into the raid searching for evidence against the firm’s client, Pollack said, though lawyers whose records have been seized are also at risk of indictment.
Cohen and his clients may end up facing no charges at all, however. Search warrants can be directed at lawyers simply to obtain evidence, Hall said. In one of the few precedential opinions on evidence seized from law firm, a federal judge in Miami refused in 1997 to toss a racketeering case against Washington, D.C., and Miami lawyers whose offices had been raided, concluding that the searches did not violate their constitutional rights.
Those lawyers were convicted of money laundering and sentenced to years in prison. Other cases show lawyers can themselves be the target of government raids. Former prosecutor Peter Hardy, for instance, oversaw the 2004 search of a Pennsylvania firm that marketed a tax evasion scheme. The lawyer who originated the scheme, Bernard Bagdis, was eventually convicted on tax and conspiracy charges. Manno was acquitted in a 2014 trial in which he represented himself. He said the evidence seized from his office ended up helping him - although some of his co-defendants tried unsuccessfully to keep it out of the trial.
Manno’s onetime client, "Little Nicky” Scarfo, was convicted and sentenced to a 30-year prison term. Manno said prosecutors were careful to protect the confidentiality of his clients other than Scarfo.
"The process basically worked,” Manno said. "I cannot come up with a single example in which something that should not have been disclosed was.” Asked if he had any advice for Cohen, as a lawyer who has emerged victorious from a federal raid, Manno said he should consider suing the government to protect his clients' confidential information. Beyond that, he said, "Follow the advice of competent criminal defense attorneys.” - Reuters
* The opinions expressed here are those of the author, a columnist for Reuters