Tuesday, March 9, 2021
In 2020, the Fraud Section of the DOJ created the Special Matters Unit (SMU). The naming of this unit was somewhat interesting in that in the early years of white collar crime, larger law firms used the term "special matters" for their section handling white collar criminal activity. Initially, many large firms did not handle any criminal matters and preferred to refer these cases to outside law firms. Gradually, the business of handling white collar criminal matters became too profitable to send elsewhere, and the firms created sections called "special matters" to handle these cases. Today, more firms in an effort to attract this business now openly advertise their white collar and government investigations sections. So, to see in late 2020 the DOJ Fraud Division creating a new unit and calling it "special matters" was fascinating.
But there is a big difference between the defense and government side of "special matters." The government unit was created to deal with:
"issues related to privilege and legal ethics, including evidence collection and processing, pre-and post-indictment litigation, and advising and assisting Fraud Section prosecutors on related matters. The SMU: (1) conducts filter reviews to ensure that prosecutors are not exposed to potentially privileged material, (2) litigates privilege-related issues in connection with Fraud Section cases, and (3) provides training and guidance to Fraud Section prosecutors." (see here)
It appears that this unit was created in response to the 4th Circuit decision, U.S. v. Under Seal, 942 F.3d 159 (4th Cir. 2019), that found the government's use of a taint or filter team improper.
It certainly can be argued that the better process is to appoint a "special master" as was done in Michael Cohen's case. But the question is whether taint teams should continue to be allowed. With continual discovery violations being noticed, this is a time to re-evaluate whether outsiders may be a better way to proceed when issues of attorney-client privilege arise resulting especially from government searches of law offices.