Whistleblower lawsuit questions attorney-client privilege

Richard Convertino’s Privacy Act lawsuit against the U.S. government is now addressing a question of whether a U.S. attorney can conceal his emails to his attorney sent over the government’s computers. Convertino was one of America’s top federal prosecutors. The government selected him to conduct a high-profile terrorism trial in Detroit. He lost his job after blowing the whistle on incompetence in the Bush Administration’s “war on terror.” High ranking Justice Department officials then leaked confidential information in an attempt to discredit Mr. Convertino. The government officials with access to the confidential information all submitted affidavits saying they did not leak the information.  Now one of those officials, Assistant U.S. Attorney Jonathan Tukel, is trying to block Convertino’s access to emails saved on government computers. The dispute highlights some common problems in whistleblower cases, and also suggests which U.S. government official most likely leaked Convertino’s private information and then lied in a sworn affidavit to cover up the retaliation.  Today, the Detroit News reports on the dispute. 

 The Detroit News focuses on Tukel’s claim that the emails stored on government computers are actually his personal emails to his attorney.  The article quotes Convertino’s attorney, Stephen M. Kohn, as saying that Tukel waived any privilege when he chose to use official government computers to send his emails.  The issue is now pending on Tukel’s motion to intervene in the case to allow him to assert his claim of privilege.

Whistleblowers often face attacks on their credibility and reputation.  Those intent on committing crimes or cutting corners on public safety usually will not stop when a whistleblower makes an initial report.  Instead, they will attack the whistleblower’s credibility, or trash the whistleblower’s reputation, to stop others from believing the whistleblower or from coming forward with additional information.  Here, the high-ranking Justice Department officials released a confidential complaint against Convertino to David Ashenfelter, a reporter for the Detroit Free Press.

I recall a similar dispute in which the government accessed my client’s attorney-client emails without ever giving my client a chance to object.  The government, through lawyers of the Justice Department, later defended itself by arguing that "there is no right to privacy in government computers. United States v. Simons, 206 F.3d 392, 398-399 (4th Cir. 2000)." 

If Tukel is successful in his motion to intervene, he may then have to contend not only with the waiver issue, but also the crime-fraud exception.  Courts will not allow persons to use the attorney-client privilege to conceal crimes or frauds.  If Tukel’s emails show that he released confidential government information without permission, or that he lied in his affidavit claiming that he was not the source, then his claim of privilege may be of no avail.