By Liz Nass
Gongwer News Service
Evaluating the claim of attorney-client privilege by the Michigan Economic Development Corporation after the seizure of documents by the Department of Attorney General, legal experts are split on the effectiveness of some of their arguments in court filings.
The June 18 search warrant executed on the MEDC headquarters related to the investigation of Fay Beydoun’s $20 million grant for her nonprofit Global Link International is currently being appealed by the agency.
Legal experts told Gongwer News Service that attorney-client privilege is a broad protection but had mixed reviews on whether this argument can be effective in all the proceedings of this investigation and the eventual quashing of the search warrant and return of documents to the office.
Adam Wright, assistant professor of law at University of Detroit Mercy with expertise in business and white-collar crime, said attorney-client privilege is “one of the oldest privileges in the law” and can simply be explained as the ability of one client to talk to one attorney without fear of it being shared.
Justin Simard, an associate law professor at Michigan State University, said revoking this privilege could stop individuals from trusting their lawyers, and then it would start to negatively affect the profession, with clients being less willing to share crucial information for an investigation or just lying to their lawyers.
“It’s very core to the profession, but it’s also not perfect,” Simard said.
Simard said some people believe privilege goes too far by protecting too much and could potentially suppress evidence that could be used in an investigation.
Catherine Grosso, a law professor at the Michigan State University College of Law, said privilege carries a very broad definition that when work is done between an attorney and a client, it is generally protected. However, Wright said that there are nuances that come with the MEDC’s argument.
When it comes to outside counsel for an organization, as Wright explains is happening in the MEDC case, the only communications that are protected are legal in nature, not documents that would just give business or political advice. Attorney-client privilege also does not cover communications where a third party is involved; it must be communication between one client and one attorney, Wright said.
So, if an email is forwarded to someone else in the organization or includes another lawyer, that is no longer privileged, according to Wright.
Elise Maizel, an assistant professor of law at the Michigan State University College of Law, however, said a search warrant does not change whether something is privileged.
But Simard did add some distinction for attorney work product privilege: there is incentive to produce as much work as possible.
This work product privilege is brought up in the transcript of the raid when Linda Asciutto, general counsel for the MEDC, said everything in her office is being worked on, so the officers should not take any documents in her office.
Simard said that is “a very generous interpretation of the rule” and would be “quite skeptical” that that is true. He said just because a lawyer is in a room does not make it privileged.
Wright agreed with Simard, saying if there is no qualification in the warrant that her office was off limits, then it is unlikely everything in the office should be protected.
He said for there to even be a warrant in the first place, rather than a subpoena request for the documents from the Department of Attorney General, there must have been a breakdown of trust between the attorney general’s office and the MEDC, leading to a larger search warrant for these documents.
Maizel stood by Asciutto’s claim, however, saying it is “not the most unreasonable” position to take because attorneys need the ability to do their job “without the other side sort of looking over their shoulder.” “I think while it’s sort of a broad expression of what might be privileged, it is plausible that everything in an attorney’s office or file might be protected by either the attorney work product or the attorney client privilege, and frankly, it depends on the working style of the particular attorney, how they keep their files,” Maizel said. Grosso agreed with Maizel, saying that you do have to show intent and reasonable measures to keep files privileged, like not putting them in a pile outside the door. But if the documents are on her desk in an office with a lock on it, then it can be considered privileged.
Asciutto also called her office “a private law office” within the MEDC headquarters in the motion to quash the search warrant.
Simard said if the office is “generally accessible” then it is not private. However, he did use an example at MSU of the clinic where students work with clients on various law matters. No one can go into the room without being escorted by one of the clinic professors to a locked office. Then, in this case, it can be considered private, but if “any random professor can go in there, none of that stuff is privileged.” Maizel said while there are some exceptions to privilege, she would be uncomfortable with “the state being able to barge into the offices of attorneys” and asking questions unless the crime-fraud exception was granted, where the government believes the person or organization they are searching could be subject to help with fraud.
As of this moment, the MEDC is “a noncooperative third party” in the department’s investigation, not a target.
Danny Wimmer, press secretary for Nessel, however, could not say recently if the investigation would be expanded to include the MEDC (See Gongwer Michigan Report, July 9, 2025).
Grosso said the attorney general office’s treatment of the MEDC looks like more than a third-party investigation.
Instead, they seem to be acting as if the lawyers could be criminals, she said.
“They are acting as if the outside counsel somehow facilitated the fraud,” Grosso said.
At the time of the raid, these documents on the grant were also requested by the House Oversight Committee , with a notice from Rep. Jay DeBoyer (R-Clay) and Rep. Steve Carra (R-Three Rivers). Throughout the transcript, Asciutto brings up preparing these documents for the Oversight Committee.
When asked if preparing to send documents for public records to the Legislature that signed a legislative grant for use of taxpayer money changed privilege, Wright said it would, because to assert privilege, you must prove it was confidential and was expected to remain confidential.
He said there is still an argument where they could say they were still working on it, leading to the work product privilege, but it does give extra ammo to the other side.
However, Simard stayed that until it is turned over to the Legislature, it is still privileged.
Overall, Grosso said Asciutto was doing everything she should have done and even asserted that if she didn’t fight back against the state wanting to take her privileged material, that she could be possibly disbarred. Grosso also assumed that any time a search warrant touches possible attorney-client privileged material, then there is an objection filed. Maizel agreed saying if there is a valid claim of privilege, “you will raise it.” However, Wright said the attempt to quash is unique because the MEDC is not a target, which is not typical of a third party. He said usually the people with the most interest in making these claims are those involved in criminal proceedings.
He said the timing where there are no charges yet is unique, but the “issues are common,” in white-collar matters where there is a lot of paperwork.
All the experts brought up the importance of having the taint teams, or separate teams that review for privilege, in the process.
Because the MEDC appealed, however, the taint teams that were already assembled cannot start searching through materials yet. Simard said there will always be grumbling on either side of the taint team argument on if it can truly piece out what is privileged or not, but it seems like “a good compromise” to him in this case.
One example of recent debates on attorney-client privilege in the state is the release of the Nassar documents from Michigan State University in 2024. For years, the university refused to release the documents, citing privilege. When it eventually sent the documents to Nessel, she said a review showed most of the documents were not privileged and many were unrelated to the case.
Simard said these cases mirror each other, with the idea that the public needs more information to protect themselves from reading these filings.
He said a lesson that Nassar left for cases like these is that releasing previously withheld information is “not always the hill you want to be dying on.” He also said there might be a fear of looking dumb or people taking things out of context in a divisive political stage, just like MSU was afraid with the Nassar documents. It is hard to know who is being “the unreasonable one” in this case, Simard said.
Gongwer News Service
Evaluating the claim of attorney-client privilege by the Michigan Economic Development Corporation after the seizure of documents by the Department of Attorney General, legal experts are split on the effectiveness of some of their arguments in court filings.
The June 18 search warrant executed on the MEDC headquarters related to the investigation of Fay Beydoun’s $20 million grant for her nonprofit Global Link International is currently being appealed by the agency.
Legal experts told Gongwer News Service that attorney-client privilege is a broad protection but had mixed reviews on whether this argument can be effective in all the proceedings of this investigation and the eventual quashing of the search warrant and return of documents to the office.
Adam Wright, assistant professor of law at University of Detroit Mercy with expertise in business and white-collar crime, said attorney-client privilege is “one of the oldest privileges in the law” and can simply be explained as the ability of one client to talk to one attorney without fear of it being shared.
Justin Simard, an associate law professor at Michigan State University, said revoking this privilege could stop individuals from trusting their lawyers, and then it would start to negatively affect the profession, with clients being less willing to share crucial information for an investigation or just lying to their lawyers.
“It’s very core to the profession, but it’s also not perfect,” Simard said.
Simard said some people believe privilege goes too far by protecting too much and could potentially suppress evidence that could be used in an investigation.
Catherine Grosso, a law professor at the Michigan State University College of Law, said privilege carries a very broad definition that when work is done between an attorney and a client, it is generally protected. However, Wright said that there are nuances that come with the MEDC’s argument.
When it comes to outside counsel for an organization, as Wright explains is happening in the MEDC case, the only communications that are protected are legal in nature, not documents that would just give business or political advice. Attorney-client privilege also does not cover communications where a third party is involved; it must be communication between one client and one attorney, Wright said.
So, if an email is forwarded to someone else in the organization or includes another lawyer, that is no longer privileged, according to Wright.
Elise Maizel, an assistant professor of law at the Michigan State University College of Law, however, said a search warrant does not change whether something is privileged.
But Simard did add some distinction for attorney work product privilege: there is incentive to produce as much work as possible.
This work product privilege is brought up in the transcript of the raid when Linda Asciutto, general counsel for the MEDC, said everything in her office is being worked on, so the officers should not take any documents in her office.
Simard said that is “a very generous interpretation of the rule” and would be “quite skeptical” that that is true. He said just because a lawyer is in a room does not make it privileged.
Wright agreed with Simard, saying if there is no qualification in the warrant that her office was off limits, then it is unlikely everything in the office should be protected.
He said for there to even be a warrant in the first place, rather than a subpoena request for the documents from the Department of Attorney General, there must have been a breakdown of trust between the attorney general’s office and the MEDC, leading to a larger search warrant for these documents.
Maizel stood by Asciutto’s claim, however, saying it is “not the most unreasonable” position to take because attorneys need the ability to do their job “without the other side sort of looking over their shoulder.” “I think while it’s sort of a broad expression of what might be privileged, it is plausible that everything in an attorney’s office or file might be protected by either the attorney work product or the attorney client privilege, and frankly, it depends on the working style of the particular attorney, how they keep their files,” Maizel said. Grosso agreed with Maizel, saying that you do have to show intent and reasonable measures to keep files privileged, like not putting them in a pile outside the door. But if the documents are on her desk in an office with a lock on it, then it can be considered privileged.
Asciutto also called her office “a private law office” within the MEDC headquarters in the motion to quash the search warrant.
Simard said if the office is “generally accessible” then it is not private. However, he did use an example at MSU of the clinic where students work with clients on various law matters. No one can go into the room without being escorted by one of the clinic professors to a locked office. Then, in this case, it can be considered private, but if “any random professor can go in there, none of that stuff is privileged.” Maizel said while there are some exceptions to privilege, she would be uncomfortable with “the state being able to barge into the offices of attorneys” and asking questions unless the crime-fraud exception was granted, where the government believes the person or organization they are searching could be subject to help with fraud.
As of this moment, the MEDC is “a noncooperative third party” in the department’s investigation, not a target.
Danny Wimmer, press secretary for Nessel, however, could not say recently if the investigation would be expanded to include the MEDC (See Gongwer Michigan Report, July 9, 2025).
Grosso said the attorney general office’s treatment of the MEDC looks like more than a third-party investigation.
Instead, they seem to be acting as if the lawyers could be criminals, she said.
“They are acting as if the outside counsel somehow facilitated the fraud,” Grosso said.
At the time of the raid, these documents on the grant were also requested by the House Oversight Committee , with a notice from Rep. Jay DeBoyer (R-Clay) and Rep. Steve Carra (R-Three Rivers). Throughout the transcript, Asciutto brings up preparing these documents for the Oversight Committee.
When asked if preparing to send documents for public records to the Legislature that signed a legislative grant for use of taxpayer money changed privilege, Wright said it would, because to assert privilege, you must prove it was confidential and was expected to remain confidential.
He said there is still an argument where they could say they were still working on it, leading to the work product privilege, but it does give extra ammo to the other side.
However, Simard stayed that until it is turned over to the Legislature, it is still privileged.
Overall, Grosso said Asciutto was doing everything she should have done and even asserted that if she didn’t fight back against the state wanting to take her privileged material, that she could be possibly disbarred. Grosso also assumed that any time a search warrant touches possible attorney-client privileged material, then there is an objection filed. Maizel agreed saying if there is a valid claim of privilege, “you will raise it.” However, Wright said the attempt to quash is unique because the MEDC is not a target, which is not typical of a third party. He said usually the people with the most interest in making these claims are those involved in criminal proceedings.
He said the timing where there are no charges yet is unique, but the “issues are common,” in white-collar matters where there is a lot of paperwork.
All the experts brought up the importance of having the taint teams, or separate teams that review for privilege, in the process.
Because the MEDC appealed, however, the taint teams that were already assembled cannot start searching through materials yet. Simard said there will always be grumbling on either side of the taint team argument on if it can truly piece out what is privileged or not, but it seems like “a good compromise” to him in this case.
One example of recent debates on attorney-client privilege in the state is the release of the Nassar documents from Michigan State University in 2024. For years, the university refused to release the documents, citing privilege. When it eventually sent the documents to Nessel, she said a review showed most of the documents were not privileged and many were unrelated to the case.
Simard said these cases mirror each other, with the idea that the public needs more information to protect themselves from reading these filings.
He said a lesson that Nassar left for cases like these is that releasing previously withheld information is “not always the hill you want to be dying on.” He also said there might be a fear of looking dumb or people taking things out of context in a divisive political stage, just like MSU was afraid with the Nassar documents. It is hard to know who is being “the unreasonable one” in this case, Simard said.
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