Sometimes — Just Sometimes, Mind You — Rules Matter

I frequently advise clients who are the subjects of criminal investigations. They expect to be the subjects of search warrants or arrest warrants at any time.

I give them all four key pieces of advice:

1. Shut up.
2. No, really. SHUT UP.
3. Because police may come to your house any day to arrest you or search your house, this would be a good time to send any dogs to a kennel or a friend or neighbor's house.
4. Gather all communications with me and with any other lawyer and put them in one big physical or electronic folder. Now label that folder "ATTORNEY CLIENT COMMUNICATIONS PRIVATE AND CONFIDENTIAL PRIVILEGED COMMUNICATIONS." And put that inside ANOTHER container labeled the same way.

The first three are fairly self-explanatory.

You might think that the fourth is calculated to prevent police and prosecutors from invading the attorney-client privilege by reading my communications with my client. You'd be wrong. Nothing will prevent them from doing that if they feel like it. The labels are calculated to (1) deter those principled cops and prosecutors who see them, and (2) make it marginally more likely that I can get some sort of remedy when dishonest cops and prosecutors look at the labels, shrug, and read the communications anyway.

The ugly truth is that, in my experience, cops and prosecutors routinely, deliberately, and without any apparent regret invade the attorney-client privilege and read communications that are obviously between attorney and client. My clients describe sitting in handcuffs during a search while cops pick up my letters on my letterhead and casually page through them, smirking at the client. And I will not soon forget the Deputy District Attorney who soberly informed me that the attorney-client privilege had been "burst, as a matter of law" when the police seized his papers. (Later, after losing a motion regarding the privilege against self-incrimination, this DA said that "he would have to read up on this Fifth Amendment thing." Yes, of course he's a judge now.)

Why do they do it? Because they can. Because judges are indifferent or hostile to defendant rights or mere chickenshits who rarely recognize prosecutorial or police misconduct and even more rarely impose any sort of sanction when they do recognize it. Prosecutorial misconduct happens all the time with little consequence for the government.

So, naturally, it's thrilling when judges actually impose consequences.

Today A Public Defender is over the moon over a great state Supreme Court ruling. Patrick Lenarz was a karate instructor acquitted of eight counts of molestation and convicted of one. In addition to appealing on the basis that the trial court refused to let him call an expert on how bad interrogation taints the testimony of child witnesses, Lenarz complained that the trial court acknowledged that prosecutor Christopher Parakilas wrongfully read his attorney-client communications, but refused to do anything about it. In a stunner, one day after oral argument, the justices ordered Lenarz released immediately. That bodes well for Lenarz and poorly for Parakilas.

A Public Defender is right to be jazzed over this. But it's the exception that proves the rule, I'm afraid.

Last 5 posts by Ken White


  1. says

    Mike, my policy is not to call out litigation opponents by name, or by sufficient details to identify them. Anything else would be an abuse of anonymity. This incident was years ago, and DAs get onto the bench so often that there is effectively zero chance that anyone would identify him.

  2. Paul Baxter says

    I'm sympathetic to your point, but this runs up against the PR problem (or at least one of them) that consistently dogs criminal defense: the public wants ALL information to be brought to bear to determine innocence or guilt.

    Nobody likes the idea that evidence which might have proved someone guilty could be suppressed by some technicality like the constitution.