U.S. Attorney Mary Beth Buchanan yesterday defended her office against criticism raised by the federal public defender for its handling of a potential breach of attorney-client privilege.

Federal Public Defender Lisa Freeland sent an e-mail on Wednesday to members of the local defense bar, informing them that the Allegheny County Jail had been recording telephone calls between inmates and their attorneys and then turning over those recordings to the U.S. attorney's office.

Ms. Freeland, who immediately contacted federal prosecutors when she learned of the situation on Oct. 8, complained in the e-mail that it didn't seem the U.S. attorney's office took her concerns seriously.

Yesterday, Ms. Buchanan said that her prosecutors did everything possible to remedy the situation.

"If counsel walks away dissatisfied, I can't do anything about it if she doesn't call," Ms. Buchanan said. "It was incumbent upon the public defender to pick up the phone and call me. And unfortunately, that didn't happen."

But contacted yesterday afternoon, Ms. Freeland said she didn't think she had to call Ms. Buchanan directly.

"There was never a moment in my conversations with either [the first assistant U.S. attorney or chief of the criminal division] that I thought for a second that Mary Beth had not been informed of what was going on and that she would have been in on those calls herself had she been available," Ms. Freeland said.

Further, she continued, she couldn't complain about the U.S. attorney's response because she doesn't have it.

"I still haven't gotten it, so it's hard to say if I'm satisfied with it or not," Ms. Freeland said.

All outgoing calls made from the jail are recorded as matter of jail policy -- except those to inmates' lawyers. And it is common practice for prosecutors to request those recordings as part of their investigations.

Jail officials have said that during the conversion to a new telephone system, some attorney phone numbers that would generally be blocked from the jail recording devices may have been omitted.

In the meantime, already yesterday at least one defense attorney filed a motion in federal court asking that a judge require the U.S. attorney's office to inform him if any calls between his client and legal counsel were recorded and turned over.

"It is of little consequence or solace that possible violations of the attorney-client privilege have occurred 'inadvertently,' " attorney Warner Mariani said in the motion.

In an interview yesterday, Mr. Mariani said the attorney-client privilege "goes to the heart of the criminal justice system and adversarial system."

He believes that there should be an outside investigation by the Department of Justice to ensure that no laws were violated.

A spokeswoman there said she couldn't comment on whether any such inquiry would be held.

Ms. Buchanan said that she believes the situation involving recordings between inmates at the jail and attorneys is rare.

But Mr. Mariani said that in July he received information in another case which included recorded conversations between his client and another attorney where the man was seeking legal advice.

"It betrays every principle out there on receiving a fair trial," he said.

Typically, in a situation where a lawyer inadvertently receives privileged information, something called a "taint team" is put together.

What should happen first, is that the attorney receiving the questionable information immediately stops reading or listening to it and goes to a supervisor, said practicing lawyer David Berardinelli.

The supervisor will then put together a team of attorneys who are in no way related to the case in question. They are then tasked with reviewing the material to determine if it is in fact privileged.

"The ultimate goal is to ensure that the attorney-client privilege is kept as pristine as possible, understanding that it has already in some way been encroached upon," said Mr. Berardinelli.

If the information is privileged, it is then the duty of the team to report the situation to the opposing attorney and allow that person to dictate how the privileged material is handled -- whether turned back over or destroyed.

Mr. Berardinelli, who worked as a federal prosecutor for five years in New York, said the concept of a taint team is not exclusive to criminal law.

"It's a prophylactic measure to protect and hold sacrosanct the attorney-client privilege," he said. "It's a well-known legal concept, but in reality it doesn't come into play that often."

Ms. Buchanan estimated that a taint team is put together in her office about three times each year.

In this instance, though, she said it wasn't necessary.

When the assistant prosecutor recognized that three of the recorded calls provided by the jail had been made to the federal public defender's office, he didn't listen to them.

Instead, he contacted the jail to inform officials there what happened and then discussed the situation with First Assistant U.S. Attorney Robert S. Cessar, Ms. Buchanan said.

"He didn't call the public defender's office because the public defender was not counsel of record for this defendant," she continued.

Technically, that was true. The defendant, who originally was represented by the federal public defender, had instead chosen to represent himself.

However, the public defender was still his standby counsel and was still copied on the man's competency evaluation when it was sent by doctors from the Federal Medical Center at Devens, Mass.

"My assistant did absolutely everything he could have done and should have done," Ms. Buchanan said.

But Ms. Freeland disagrees, saying that the U.S. attorney's office had an obligation to contact her about the recordings and to take steps to make sure the problem didn't occur again.

Ms. Buchanan has ordered all assistant prosecutors in the office to canvass their files to see if this situation has come up in any other cases.

"I don't believe it's something that's occurred with any degree of frequency," she said.

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