The attorney-client privilege and the related work-product doctrine “go to the heart of our justice system,” according to a recent opinion from the federal appellate court that hears cases from North Carolina.
Both the privilege and the doctrine face a significant threat.
That’s the warning Judge Marvin Quattlebaum delivered in an Aug. 2 concurring opinion from the 4th US Circuit Court of Appeals. Quattllebaum urged trial judges to exercise caution. He also encouraged the nation’s highest court to “consider loosening the reins” of a 2009 precedent case.
Under most circumstances, neither a lawyer nor client can be forced to divulge their communications during a criminal investigation or in response to a lawsuit. That’s the privilege.
In legal terms, “work product” refers to items prepared in anticipation of litigation. The work-product doctrine generally protects those items from investigators or opposing lawyers.
In 2022, the FBI and IRS targeted a suspect in North Carolina for “suspected wire fraud, money laundering, and tax fraud,” according to the case United States v. John Doe.
The government seized records from Doe, though officials realized some records could enjoy protection under either the attorney-client privilege or work-product doctrine. Prosecutors set up a “filter protocol.” It separated documents that could head directly to prosecutors from documents Doe could legally shield from authorities. The government would use search terms to help detect privileged communication.
Doe objected.
“Doe argues on appeal that the protocol violates his constitutional rights,” Quattlebaum wrote. “First, according to Doe, the protocol puts him in a lose/lose situation. To protect his privileges, he would have to cooperate in his own prosecution by providing search terms to the Filter Team. Doe contends he should not have to assist the government in their investigation and prosecution of him.”
“And he further argues that providing information to the government might reveal self-incriminating evidence,” Quattlebaum added. “All this, he says, violates his Fifth Amendment rights. In order to protect his Fifth Amendment rights, he can refuse to provide search terms. But that potentially forfeits his privileges, which emanate from the Sixth Amendment.”
“According to Doe, either way he turns, the protocol tramples on his rights,” the concurrence continued. Doe also cited potential “false negatives,” privileged documents that would head to prosecutors because they did not include any search terms.
“Doe maintains these problems could be avoided by handling privileges the way they are handled in most every other situation,” Quattlebaum explained. “Before the adverse party — here the government — could review his materials, Doe — as the owner of the materials and holder of the privileges — would have a chance to review them and object to turning over any materials that he claims are privileged. If the government objects to his claim of privilege, and the parties are unable to resolve the dispute, the court could review the document and make a privilege determination.”
US District Judge Robert Conrad rejected Doe’s complaints.
Appellate Judges Julius Richardson and Steven Agee ruled this month that a 1962 precedent, DiBella v. United States, blocked the 4th Circuit from hearing Doe’s case. Quattlebaum took a different approach.
Though “skeptical” that DiBella applied to Doe, Quattlebaum agreed that the 4th Circuit could not hear the appeal. Quattlebaum pointed to another US Supreme Court ruling standing in Doe’s way.
“Even if DiBella does not apply, there must be a proper vehicle for us to consider Doe’s interlocutory challenge. And considering Mohawk Industries, Inc. v. Carpenter, I am not at all sure such a vehicle exists,” he wrote.
The Mohawk case, from 2009, also addressed appeals from disclosure orders affecting attorney-client privilege.
“Regrettably, under current law, I see no vehicle permitting interlocutory review of Doe’s challenges to the district court’s order. So, I must concur,” Quattlebaum wrote. “But make no mistake, protocols like this one run the risk of hollowing out both the attorney-client privilege and the work-product doctrine.”
“Mitigating that risk, in my view, would be worth the costs of a possible delay in Doe’s criminal investigation or any inconvenience of piecemeal litigation,” Quattlebaum concluded. “Thus, while binding precedent requires me to concur, I would respectfully encourage the Supreme Court to consider loosening the reins of Mohawk to permit interlocutory review of privilege-based challenges to screening protocols and urge district courts to consider these issues before ordering such protocols in similar cases.”
The 4th Circuit delivered bad news for Doe. Barring a successful appeal to the nation’s highest court, he must comply with the government’s filter protocol.
Yet Quattlebaum’s warning should prompt new debate about safeguarding protections “at the heart of” the American system of justice.
Mitch Kokai is senior political analyst for the John Locke Foundation.