Page 263 - Ad Hoc Report June 2018
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 completely foreign agency: CMSO.”1019 To give an outside group control would have “violated ethical confidentiality” and could have constituted “a waiver of both the attorney-client privilege and the work product privilege contained in the informa- tion” in the defender data programs.1020 Steve Kalar, Federal Public Defender from the Northern District of California, stated that moving NITOAD would not only be unethical, but would frustrate the goals of the reorganization, as defenders believed the transfer of NITOAD’s functions to the AO to be “neither workable nor cost effective.”1021 And in an opinion written in response to a defender’s question about the proposed merger, the NACDL Ethics Advisory Committee wrote that defenders had no other option than to protest and refuse to participate in the reorganization, because it would be “unethical for the Federal Defenders to participate in a data merger program that does not adequately protect confidential information for past and present clients.”1022
After receiving feedback from DSO, defenders, and the NACDL,1023 the AO decided to not pursue the planned merger. A compromise was reached between the AO, DSO, and defenders, resulting in the creation of memorandums of understand- ing (MOUs) to govern processes for managing defender data. The Memorandum of Associate Director Minor to Federal Public/Community Defenders and accompany- ing Memorandums of Understanding were designed to “limit CMSO access to these processes; create a DSO Liaison position within DSO ‘to act as Liaison between CMSO and DSO;’ and confirm that employees of the National IT Operations
and Applications Development (NITOAD) Branch would remain Federal Public Defender employees within the Western District of Texas Office.”1024 The MOUs were signed by representatives from DSO, CMSO, the Federal Public Defender for the Western District of Texas, and NITOAD.
Currently, this means that although NITOAD is staffed by the federal defender office of the Western District of Texas, CMSO functions in an advisory role. According to CMSO Chief Andrew Zaso, “I’ve no control over [NITOAD] because
of the independence. It’s separately funded through separate appropriation from Congress, and again, the people, I don’t hire or fire them.”1025 However, CMSO holds the contracts for, controls, and maintains the applications that manage and transmit defender data. As a result, defenders must work through CMSO to request changes, updates, or additions to their programs. While the Chief of NITOAD reports to the
1019 SteveKalar,FPD,N.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel7,Writ.Test.,at4. 1020 EthicsOpinionat7.
1021 LetterfromDavidStickmantoLauraMinor.
1022 NACDLEthicsOpinionat7.
1023 LetterfromDavidStickmantoLauraMinor.
1024 HeatherWilliams,FPD,E.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel7,Writ.Test.,at8.
1025 AndrewZaso,Chief,CaseManagementSystemsOffice,AdministrativeOfficeoftheUnitedStates Courts, Public Hearing—Minneapolis, Minn., Panel 3, Tr., at 18.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 219
 States unless approved by the Conference itself.

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