Monday’s unsealed indictment of Paul Manafort by Special Counsel Robert Mueller set off fireworks for all the obvious reasons. But perhaps most interesting to those of us who practice white collar criminal defense is the ruling by Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia that allowed DOJ to breach Manafort’s attorney-client privilege. While the privilege is a bedrock of our justice system, the ruling shows it is not sacred.
You can read about the opinion here, but the short version is this: Manafort (and co-defendant Rick Gates) submitted allegedly false information to DOJ regarding the Foreign Agent Registration Act (FARA). That information was contained in letters sent to DOJ by Manafort’s and Gates’ lawyers. Judge Howell held that because there was evidence Manafort and Gates used their lawyers to commit a crime (submitting false statements to DOJ), the government could breach the privilege and ask the lawyers about communications between them and their clients regarding the information in the letters. The allegation is not that the lawyers knowingly committed a crime, but that they were the tools by which the crimes were committed. Hence the crime/fraud exception to the privilege applies.
Now the Special Counsel gets to ask the lawyers: who gave you the information you put in the letters, what did those people say about the representations you made in the letters, who approved the letters, when did those communications occur, and is it your practice to have your clients review such letters before they are submitted. If the answers implicate Manafort and Gates, such testimony would be far more compelling than any agency argument on which the government might otherwise be forced to rely.
Assuming this ruling stands, an attorney making representations to the government on behalf of a client must warn that client that if the information is false, the government may be able to breach the attorney-client privilege. And attorneys must consider what types of communications with DOJ might open the door to similar arguments; it can’t just be FARA letters. What about attorney proffers? Mitigation letters? The answers are not completely clear.