ALL THE PRESIDENT’S LAWYERS: A REFRESHER IN THE LAW OF SEARCH AND SEIZURE OF LAW OFFICES AND LAWYERS’ ELECTRONIC DEVICES

BASIS FOR THE PRIVILEGE

While most of us don’t think much about an investigative agency obtaining and executing a search warrant against individuals and companies, most of us have a sense that obtaining and executing a search warrant on a law office is a big deal, even if the target of the investigation is someone we dislike. In American jurisprudence, searching a lawyer’s office is extraordinary. It is potentially anathema to core principles, including constitutional rights that underpin, define, and circumscribe our system of justice. On very rare occasions, investigative agencies (e.g. FBI, IRS, ATF, US Marshals) seek warrants to search and seize a law office. On rarer occasions, magistrates issue such warrants. Given the sanctity of the attorney-client relationship and privilege in American jurisprudence and given the role attorneys serve in assisting their clients through legal minefields, judges are loath to issue such warrants unless the government has met threshold requirements that go beyond issuing search warrants against non-lawyers.

EXCEPTIONS TO THE PRIVILEGE

First, the privilege arises when a client or prospective client seeks legal advice from a member of a Bar. The privilege does not exist or is waived when the communication occurs in the presence of a third person(s) who is not the client or the client’s agent. The client also waives the privilege by sharing the communications with others. As with the SDNY/Giuliani matter, a lawyer may be required to establish proof of the attorney-client relationship to invoke a claim of privilege.

NOT ALL SEARCHES AND SEIZURES ARE CREATED EQUAL

I have my client’s express permission to share his story with you. Everything mentioned in this post can be found somewhere in the public record.

CROSS THEIR HEARTS AND HOPE TO DIE

It is not a good idea to lie to the issuing magistrate about the probable cause for issuing the warrant or about the measures in place to protect against disclosure to, and use of, privileged information by the prosecution team.

BACK TO MY CLIENT’S STORY

The fight over privilege, taint, and government misconduct lasted some three years before the USDOJ caused a grand jury to issue an indictment in 2009 against my client and two of his clients/business colleagues. Post-indictment the fight continued for years, even though we later learned the government threw in the towel on the “taint” review a year before the indictment issued. The depth and complexity of the issues cannot be fully explicated in a post such as this. What transpired both before and after the indictment issued, however, included the following:

US ATTORNEYS MANUAL

9–13.420 — Searches of Premises of Subject Attorneys

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