After the Treem case, the US Attorney has new rules for monitoring attorney communications | Wbactive

“What we’ve learned are a lot of the things that we as defense attorneys might take for granted, but probably shouldn’t,” said defense attorney Joshua Treem of his investigations and prosecutions. Treem was eventually acquitted. (file photo)

At this summer’s hearing for prominent Baltimore attorney Kenneth W. Ravenell, Assistant US Attorney Leo Wise argued that a lengthy sentence was necessary to deter other defense attorneys from breaking the law.

“Whether Mr. Ravenell is an outlier or the tip of the iceberg is unknown,” Wise said.

The local Chamber of Defense balked at the suggestion that there might be widespread crime within its ranks. For some, the statement also confirmed that US prosecutors were eyeing defense attorneys — a fear that had peaked following the indictment of Ravenell’s attorney Joshua Treem in late 2020.

The indictment of Treem, a highly respected criminal defense attorney, drew significant criticism from the US Attorney’s Office. Even after a jury acquitted Treem of his obstruction of justice charge last year, trust between federal prosecutors and the defense remained at an all-time low, several attorneys told The Daily Record.

But a new policy has reignited some hopes that the relationship could improve. In August, US Attorney Erek L. Barron introduced detailed guidelines for cases involving attorney communications. The Daily Record obtained a copy of the internal policy, which was not previously reported.

The policy establishes a number of safeguards that must be met before federal prosecutors can covertly monitor attorney communications.

The US Attorney’s Office declined to comment on this story and did not explain the reasons for the new guidelines. The policy was well received by the Defense Chamber, said Maryland state public defender James Wyda, who has criticized the indictment against Treem.

“This policy is further evidence that Erek Barron is bringing positive change to the office,” Wyda said. “The new policy provides appropriate and important safeguards for sensitive investigations.”

For Treem, who has begun speaking publicly about his case, the directive is a start.

It’s a step in the right direction,” he said in an interview. “But we’ll just have to wait and see.”

Treem, 75, wants other defense attorneys to learn from his case.

“This indictment should be an eye opener for every criminal defense attorney in the country,” Treem said. “They did it the way they did it because they can.”

US Attorney for Maryland Erek L. Barron.

Federal investigators secretly taped Treem during an interview with a government witness who had offered to provide exculpatory information about Ravenell, who was Treem’s client at the time.

Treem later said he was doing the basic work of a defense attorney, testing the government’s evidence and exploring whether a key cooperating witness might be able to help the defense’s case.

The public prosecutor saw it differently. The indictment against Treem alleged that he and a defense investigator questioned witness Richard Byrd with the aim of “removing him from the board” — in other words, locking Byrd in a false story that would benefit Ravenell and Byrd as Government made employees useless.

Treem has also been accused of misrepresenting some details of the 2017 meeting with Byrd in an affidavit and a letter to a judge that Treem wrote after becoming concerned that Byrd was attempting to blackmail Ravenell in exchange for favorable testimony.

At his joint trial with Ravenell in December, Treem acknowledged errors in the documents but said they were unintentional. The jury acquitted him of all charges. (Ravenell was convicted of money laundering and is scheduled to serve jail next month.)

Treem said his prosecutor’s office “increase the danger that’s out there” for defense attorneys.

What we’ve learned are a lot of the things that we might take for granted as defenders that we probably shouldn’t,” he said.

Wyda said his office advised defense investigators to have multiple witnesses present for harsh interviews following Treem’s indictment.

“[Witnesses]keep changing their stories,” Wyda said. “When any of our investigators are anticipating such an interview, I have had specific conversations with them where they have been concerned that if they commemorate a story contrary to the government they may be at the end of an investigation.”

James P. Ulwick, a former federal prosecutor who now practices with Kramon & Graham, said the indictment against Treem “poisoned” the relationship between the Defense Chamber and the US Attorney’s Office.

“From the standpoint of anyone doing criminal defense work, we now have to worry, ‘Will the government record this interview? Am I being tricked?’” Ulwick said.

Ulwick also represented the law firm of Treem, Brown, Goldstein & Levy after federal investigators raided the office in 2019. The search prompted further complaints among defense attorneys: the firm received no advance notice, and the agents took far more material than they needed to investigate Treem, BGL would claim in court.

The 4th Circuit Court of Circuits ultimately ruled in favor of BGL, ruling that a magistrate, rather than a “filtering team” of federal prosecutors, should review the materials seized by the law firm to protect client confidentiality.

Treem remained employed at BGL during his indictment and still works there. As a former federal prosecutor, Treem mourns the loss of a common goal between government and defense.

That’s gone, we don’t have that sense of trying to achieve the same goal, which is that everyone charged with a crime gets a due process,” he said.

Wyda said the charges were widely viewed as an attack on the fundamental principles of criminal defense work. But he is optimistic that the relationship between defense attorneys and the US Attorney’s Office could improve under Barron’s leadership.

Treem’s trial began under Barron’s predecessor, then-US Attorney Robert K. Hur.

Barron, who took office in October 2021, implemented the new guidelines for attorney communications investigations in August. The policy requires prosecutors to obtain the US Attorney’s permission before conducting any covert operation involving a lawyer.

The US Attorney will consider whether efforts have been made to gather information from other sources, whether there is a reasonable belief that the attorney is committing a criminal offense and whether the need for information outweighs the potential damage to the attorney-client relationship prevails over the guideline.

Requests for monitoring of lawyers “must be narrow in scope, targeting material information on a limited subject and covering a reasonable, limited period of time,” the policy states.

Treem said the implementation of the policy is an improvement. But he still has doubts.

“In my view, it does not prevent the government from doing exactly what it has done here in certain circumstances,” he said.

Still, Treem said he will not change the way he is handling Ravenell’s case. As defense counsel, he was required to question Byrd and seek exculpatory evidence for his client.

“When you’re doing criminal defense work, you don’t have an opportunity to say, ‘I don’t think I’m going to do this,’” said Treem.

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