The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.
This case is before the Court on the government's motion to unseal certain documents obtained from the law offices of defendant Edwin Rivera. For the reasons set forth below, the government's motion is granted.
On July 6, 1993, a grand jury in the Southern District of New York returned a 103 count indictment charging defendant Edwin Rivera and seven others with conspiring to violate federal immigration laws. The indictment alleges that Rivera had falsely held himself out to be an attorney, and had filed fraudulent amnesty applications with the Immigration and Naturalization Service ("INS") on behalf of over one hundred clients. Additionally, the indictment alleges that Rivera and his staff (his co-defendants) knowingly prepared fraudulent amnesty applications and advised the clients how to deceive INS examiners during their interviews.
In June of 1993, Magistrate Judges Roberts and Gershon issued several search warrants authorizing the government to seize client files and other materials from the law offices of Edwin Rivera and from his home. The warrants specifically provided that all client files and other documents or materials that appeared to contain attorney-client communications be sealed and held at the United States Attorney's Office until any questions of privilege were resolved. Pursuant to these warrants, the government seized approximately 90 client files, three computers, a number of computer disks, and other materials.
In addition, a federal grand jury subpoenaed all immigration-related client files remaining in the office. Pursuant to that subpoena, five other boxes of client files were delivered to the INS. Those files were sealed and have been stored unopened at the INS offices in New York.
The defendants were indicted on July 6, 1993. Following the initial status conference, the government moved to have the files unsealed on the ground that they are not protected by the attorney-client privilege.
Recognizing that resolution of these issues would require a careful review of all of the documents in the hundreds of client files in the government's possession, the Court appointed a special master to review the files and advise the Court of any viable claims of attorney-client privilege that could be advanced. By order dated August 8, 1993, the Court appointed Maurice Sercarz, Esq. to act as special master in this case.
A scheduling order was entered, directing the special master to complete his review and report to the Court by October 22, 1993. The government and parties were invited to respond to the special master's reports, although only the government availed itself of that opportunity. The matter is now before the Court for resolution of the government's motion.
The party invoking the attorney-client privilege has the burden of showing each and every element of the privilege, see United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989), including that (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a lawyer of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers, (c) for the purposes of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. See Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962) (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass 1950)).
The government initially sought an order unsealing all of the seized and subpoenaed files. Counsel for the government later amended its request to ask that the Court unseal the client files of only those individuals who filed an application for amnesty with the INS.
See Transcript, November 1, 1993, at 21.
Two types of information are potentially contained in the client files. One is the substantive communications between the client and the firm. Additionally, releasing the client files to the government would reveal the identities of the clients who sought counsel at the Rivera firm. It is generally accepted that the attorney-client privilege extends only to the substance of matters communicated to an attorney in professional confidence. The identity of a client, by contrast, is generally not protected by the privilege. See Colton, at 637. However, there are circumstances where courts have declined to order disclosure of a client's identity, generally where identification of the client could provide the "last link" incriminating the client. See id., at 637; Baird v. Koerner, ...