After Treem case, U.S. attorney has new rules for monitoring attorney communications

Prosecution of respected criminal defense attorney brought widespread criticism

By Madeleine O’Neill
BridgeTower Media Newswires

BALTIMORE — At the sentencing hearing for prominent Baltimore attorney Kenneth W. Ravenell this summer, Assistant U.S. Attorney Leo Wise argued that a lengthy prison sentence was necessary to deter other defense lawyers from breaking the law.

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

The local defense bar bristled at the implication that there could be widespread criminality in their ranks. To some, the statement also confirmed that the U.S. Attorney’s Office had its eyes on defense lawyers — a fear that had reached a fever pitch following the indictment of Ravenell’s lawyer, Joshua Treem, in late 2020.

The prosecution of Treem, a highly respected criminal defense attorney, brought widespread criticism of the U.S. Attorney’s Office. Even after a jury acquitted Treem on his obstruction of justice charges last year, trust between federal prosecutors and the defense bar remained at an all-time low, several lawyers told The Daily Record.

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

The policy lays out a series of safeguards that must be met before federal prosecutors can surreptitiously monitor lawyers’ communications.

The U.S. Attorney’s Office declined to comment for this story and did not explain the reasons for the new guidelines. The policy has been well-received by the defense bar, said James Wyda, the federal public defender for the district of Maryland who has been critical of the Treem prosecution.

“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 in sensitive investigations.”

For Treem, who has begun to speak publicly about his case, the policy 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 lawyers to learn from his case.

“This prosecution should open the eyes of every criminal defense attorney in the country,” Treem said. “They did it the way they did it because they can.”

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

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

Prosecutors saw it differently. The indictment against Treem alleged that he and a defense investigator interviewed the witness, Richard Byrd, with the goal of taking him “off the board” — in other words, locking Byrd into a false story that benefited Ravenell and rendered Byrd useless as a government cooperator.

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

At his joint trial with Ravenell in December, Treem acknowledged errors in the documents but said they were inadvertent. Jurors acquitted him of all charges. (Ravenell was convicted of one count of money laundering and is set to begin a prison sentence next month.)

Treem said his prosecution “ratchets up the danger that is out there” for defense attorneys.

“What we learned is many of the things that we as defense lawyer might take for granted, we probably shouldn’t,” he said.

Wyda said his office has counseled defense investigators to have multiple witnesses present for tough interviews in the wake of Treem’s prosecution.

“(Witnesses are) changing their stories all the time,” Wyda said. “When one of our investigators anticipates having an interview like that, I’ve had specific conversations with them where they’re concerned that if they commemorate a story that contradicts the government, that they may be on the receiving end of an investigation.”

James P. Ulwick, a former federal prosecutor who now practices at Kramon & Graham, said the prosecution of Treem “poisoned” the relationship between the defense bar and the U.S. Attorney’s Office.

“From the standpoint of anybody who does criminal defense work, now we have to worry about, ‘Is the government going to tape this interview? Am I being set up?’” Ulwick said.

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

The 4th U.S. Circuit Court of Appeals ultimately found in favor of BGL, ruling that a magistrate judge, not a “filter team” made up of federal prosecutors, would need to review materials seized from the law firm in order to protect clients’ confidentiality.

Treem remained employed at BGL throughout his prosecution and still works there. As a former federal prosecutor, Treem mourns what he sees as the loss of a common purpose between the government and the defense bar.

“That’s what’s gone, we don’t have this sense of efforts to achieve the same objective, which is that everybody charged with a crime gets due process,” he said.

Wyda said the prosecution was widely seen as an attack on basic principles of criminal defense work. But he is optimistic that the relationship between defense lawyers and the U.S. Attorney’s Office may improve under Barron’s leadership.

Barron, who took over the office in October 2021, implemented the new guidelines for investigations involving attorney communications in August. The policy requires prosecutors to seek permission from the U.S. attorney before conducting an undercover operation involving a lawyer.

The U.S. attorney will weigh whether efforts have been made to gather information through other sources, whether there are reasonable grounds to believe the attorney is committing a crime, and whether the need for information outweighs the potential harm to the attorney-client relationship, according to the policy.

Requests to monitor attorneys “must be narrowly drawn and directed at material information regarding a limited subject matter and shall cover a reasonable, limited period of time,” the policy states.

Treem said having the policy in place is an improvement. But he still has doubts.

“From my perspective, it doesn’t stop the government from, under certain circumstances, doing exactly what they did here,” he said.

Still, Treem said he would not change the way he handled Ravenell’s case. As a defense lawyer, he had an obligation to interview Byrd and seek exculpatory evidence on behalf of his client.

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