Andy Thibault

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Prosecutors in Connecticut Corruption Case
Try to Cut Through Attorney-Client Privilege 
September 21, 2004
Associated Press

HARTFORD, Conn. -- Over the past 15 years, federal prosecutors in Connecticut have indicted four mayors, taken down a former state treasurer, put palm-greasing bankers behind bars and won a guilty plea from a top aide to the governor. But in the past four months, their corruption probe of former Gov. John G. Rowland's administration has taken a particularly aggressive turn.

In the past few months, prosecutors have subpoenaed records from two defense attorneys, demanded the testimony of Rowland's former legal adviser and seized materials from a private investigator.

While some Connecticut attorneys have decried such attempts to pierce the veil of attorney-client confidentiality, experts say more and more prosecutors around the country are employing such tactics in trying to build difficult cases.

"The tactics in Connecticut are not unusual any more," said Joseph DiGenova, a former U.S. attorney for the District of Columbia, now in private practice. "There is a national assault on attorneys all over the country."

DiGenova himself was subpoenaed by prosecutors investigating alleged corruption involving one of his clients in Delaware.

Conversations between attorneys and their clients are generally considered private, but courts have refined the boundaries between what is privileged and what is fair game.

Prosecutors subpoena lawyers for a variety of information, including the source of their payments and details about communication between their clients and other people.

In Chicago, federal prosecutors subpoenaed former Gov. George Ryan's top legal adviser to testify against him before a grand jury. An appeals court ruled in 2002 that any privacy concerns were trumped by the grand jury's needs.

Prosecutors in Connecticut took the same tack recently, subpoenaing Rowland's former counsel, Anne George. Rowland's attorneys beat back that subpoena, winning a potentially precedent-setting case before the 2nd U.S. Circuit Court of Appeals.

Prosecutors have also subpoenaed records from the attorney for Peter Ellef, Rowland's former chief of staff and a target in the case. In addition, they demanded records from Ellef's son's attorney. A federal judge heard closed arguments over the legality of the subpoenas but issued a gag order on the matter.

"The attorney subpoenas clearly show a new chapter, not only in corruption cases, but in federal criminal cases generally," said Ellef's attorney, Hugh Keefe.

Weeks ago, the FBI seized documents from a private investigator working for a state contractor, an attorney said. The contractor, William Tomasso, had hired the detective to investigate the character of witnesses against him, said his attorney, Jack Fornaciari. Fornaciari called the seizure harassment.

"They haven't repealed the Constitution in Connecticut," he said.

But U.S. Attorney Kevin O'Connor of Connecticut said there are checks and balances that prevent the misuse of subpoenas and inappropriate seizures.

"Just about every invasive technique that you mentioned has to be approved in Washington," O'Connor said. "It's not like the U.S. attorney's office in Connecticut is off on some detour."

Rowland resigned July 1 amid a federal investigation and threats of impeachment. Investigators want to know whether he steered state contracts to friends in exchange for free work at his summer home, vacations and other gifts.

Defense attorneys began seeing an increase in subpoenas in the early 1990s, said Gerald Lefcourt, past president of the National Association of Criminal Defense Attorneys. After lawyers complained to the Justice Department, he said, the subpoenas stopped coming so frequently.

Lately, attorneys say such subpoenas are back in favor.

"It's happening with alarming frequency from one end of the country to the other," said Texas attorney Gerry Goldstein, who also served as president of the NACDA. "One has to believe there is some concerted effort."

By forcing a lawyer to turn over information, prosecutors can drive a wedge between attorney and client. Some attorneys say prosecutors use such subpoenas to force top defense attorneys off the big cases.

O'Connor said that is not the case in Connecticut. He said there has been no policy change locally or nationally that encourages such techniques. If more attorneys are being subpoenaed, he said, it is because the cases warrant it.

And he noted that attorneys can challenge decisions they feel crossed the line.

"There are remedies. They can move to suppress," O'Connor said. "If it is the wrong thing, presumably a court will say so."

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