When the Federal Government Searches an Attorney’s Office and its Impact on Privilege

Are There Special Standards for Searching a Lawyer’s Office?

There are, of course, many questions about whether there is a special standard for searching an attorney’s office. I was asked this question on Quora, and here is the answer I wrote.

A Word About Attorney/Client Privilege and Its Limitations

Attorney/Client privilege is a critical part of our legal system and it is very necessary to protect our right to legal representation. However, there are times when privilege does not attach or is destroyed.

First, attorney/client privilege only attaches to things related to the attorney/client relationship. If I am your lawyer and you and I meet up for lunch and discuss the weather or a tennis match we saw on tv, the conversation has nothing to do with the attorney/client relationship and there is no privilege.

Second, privilege either does not attach or is destroyed if it meets the crime/fraud exception. The crime/fraud exception includes two basic concepts:

  1. The client was in the process of committing a crime or fraud or intended to do so.
  2. The client met with the attorney for the intent of covering up a crime or fraud.

Keep in mind that attorneys’ offices cannot be a safe haven for evidence that is related to a crime committed by an attorney or their staff, or to a client when there is no privilege for that evidence. Why? Well, if we did, then people would know where to hide their stuff. And as much as I hate to admit it, there are attorneys who commit crimes that have nothing to do with the issue that is causing so much interest in law office searches. We attorneys are not and should not be above the law.

The Controlling Rule

While I realize that there is a lot of confusing and conflicting information out there about whether it is extraordinary for an attorney’s office to be searched, the reality is that these things happen often enough that it became necessary to establish a rule about how to handle such searches.  For federal prosecutors, there is a specific rule and document that control the standard and process for searching a lawyer’s office. Let’s take a look at it.

I’d like to point out this particular line, which is part of the introductory language of this rule:

“There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search.”

So you see, this rule exists exactly because of the concerns we all have about protecting attorney/client confidentiality as well as making certain to limit inappropriate access to privileged documents.

Pre-Approval Required

  1. Federal prosecutors are to seek any alternative means possible to searching an attorneys office. If it is possible a subpoena should be used. A subpoena would allow the attorney to turn the evidence over themselves and avoid a search. However, if there is legitimate concern that evidence will be destroyed or an investigation will be compromised, a search is appropriate. It is important to note that even to obtain a subpoena in the case of such a search relating to a client, pre-approval is required from the Assistant Attorney General for the Criminal Division.
  2. If a warrant to search is deemed necessary, pre-approval must be obtained from the US Attorney or the appropriate Assistant US Attorney before application to a judge (appropriate will depend on the jurisdiction and circumstances.) The prosecutor requesting the warrant must show why less invasive alternatives will not work. Before the prosecutor seeking the warrant goes to the court, in addition to obtaining the above pre-approval, they must also consult with the Criminal Division of the Attorney General. A note in the document asks for that consultation to occur as early as possible during the decision making process.
  3. If there are exigent circumstances, the consultation may be avoided, but it must be obtained asap after obtaining the warrant from a federal judge.

As you can see then, there are special steps necessary to go through before a federal prosecutor can seek a warrant from a judge. This is not normally necessary in a federal investigation.

Safeguards are Critical

As noted above, there is extensive concern about the government seeing anything that has a legitimate privilege. As such, safeguards are required.

  1. Safeguards must be established prior to application for the warrant.
  2. Safeguards are tailored to each case. Though many judges will have general safeguards they like to see.
  3. A privilege team is established. This team is responsible for reviewing documents to make certain privilege is not violated. This team is shielded from the prosecution in question. As such, they are not allowed to work on the prosecution and are not allowed to share any privileged information. Instead, they forward the appropriate documents to the prosecution’s investigatory team and return any privileged documents through a process established ahead of time.
    1. “Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.”
    2. There is a special document that explains the policies and procedures related to seizing computers.
    3. The document contains directions creating policies and procedures related to protecting privilege.
  4. When the prosecutor applies for the warrant they will either detail the procedures or attest to the fact that procedures will be implemented.
  5. As in all things legal, there is a disclaimer. “These guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.”

I realize that there is a lot of confusing information out there about whether it is extraordinary for an attorney’s office to be searched. The reality is that these things happen often enough that it became necessary to establish a rule about how to handle such searches.

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