Using Independent Taint Teams to Better Protect Attorney-Client Privilege.

• Date: 01 July 2022
• Author: Gregorie, Richard

THE attorney-client privilege and the attorney work product doctrine are among the oldest protections in the law concerning communications with counsel and legal preparation for a client seeking legal advice. The attorney-client privilege protects communication, not information. The attorney work product doctrine protects legal preparation for litigation, not the existence of evidence. However, these protections cease to exist when attorney-client communications turn to advice on future crimes or fraud. (1)

When the government acquires documentation via a search warrant or subpoena, especially one involving a law firm, there is a high probability that the information obtained may contain attorney-client privileged communications. To avoid the disclosure of attorney-client materials, the government assembles an internal team of experienced government attorneys and criminal investigators who have no interest in the matter to review the documentation in order to protect and preserve the attorney-client privilege. This review team is commonly referred to as a "Taint Team," or a "Filter Team," and its goal is to review the information and segregate privileged material to ensure the prosecuting team doesn't access it.

While Taint Teams are formed to protect the attorney-client privilege, there are fundamental, structural flaws embedded into the practice of using them. These flaws challenge the neutrality and independence of the review process.

This paper examines the procedural weaknesses of government Taint Teams, argues that Independent Taint Teams ("ITT") can address those problems, and proposes ways that these independent experts can provide critical support to both defense counsel and the judiciary.

1. Examining the Structural Flaws of Government Taint Teams

   One of the structural flaws of government Taint Teams is the fact that the executive branch of the government gets both the first pass at reviewing the materials and chooses which agents participate. This is contrary to constitutional protections that require issues of privilege to be settled by the judiciary. When judges are asked to evaluate the fairness of a Taint Team, they are likely to approve the team with minimal consideration of existing structural and perceived flaws, which conflicts with the obligation to maintain and preserve privilege as a judicial oversight responsibility. (2)

   Second, the government's assembled team of prosecutors and agents may have a less expansive view of privilege, given that an assertion of privilege may prevent the government from obtaining evidence critical to their case. There is a risk that the Taint Team will inevitably interact with the prosecution and/or the trial team, creating the appearance of impropriety even if none exists. These interactions could result in the accidental exchange of privileged information. (3)

   Aside from the existing structural flaws and potential prejudicial issues, there are several practical issues that exist when government Taint Teams are constructed that also weigh on the effectiveness of the process.

   These issues can range from:

   * a lack of...