RISK/REWARD OF THE SEARCH AND SEIZURE OF A LAW OFFICE: BEST EVIDENCE OR ESCAPE HATCH FOR THE DEFENSE? MAYBE BOTH*
The Poet, Oil on Canvas, 24" x 36", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
EVIDENCE OBTAINED FROM MR. TRUMP’S PERSONAL ATTORNEY
Everyone knows that search warrants are sought and used to obtain evidence of wrongdoing for use in a criminal prosecution. In order to preserve the integrity of that evidence for such later use, however, investigators and prosecutors must comply with strict standards. At least in principle. Evidence obtained through search and seizure of a law office carries with it a higher likelihood that a criminal case cannot proceed due to the prosecution team’s taint through exposure to privileged information.
I trust that before he sought, obtained and executed warrants to search and seize the records of Trump’s personal attorney, the acting United States Attorney for the Southern District of New York (SDNY) concluded (1) the risk was worth the reward and (2) one of two other things:
• his office had exhausted all less intrusive means to obtain the evidence of criminal wrongdoing, or
• exhausting such means would have resulted in the destruction or loss of the evidence of criminal wrongdoing.
That office undoubtedly understands the ramifications of invading the attorney-client privilege on any future prosecution that directly or derivatively (fruit of the poisonous tree) depends on evidence seized in the search. That office assuredly put in place all necessary protections against invading the privilege and tainting any prospective criminal prosecutions. At the end of this post I’ve included a section from the U.S. Attorneys’ Manual, 9–13.420 — Searches of Premises of Subject Attorneys, which sets forth the Department of Justice’s internal requirements and guidelines for seeking and obtaining search warrants on law offices and lawyers. I have little doubt about the SDNY’s scrupulous compliance with those regulations and guidelines, as well as the competence of the participants. Regardless, opting for the most aggressive method for obtaining the evidence handed at least some prospective defendants additional basis to challenge their prosecution. The defense will contend the criminal case is irreparably tainted by prosecutors having gained access to confidential, attorney-client privileged information. That bell cannot be unrung, the argument goes.
A “neutral” federal magistrate must have been convinced that probable cause existed that substantial non-privileged evidence of criminal wrongdoing by Mr. Cohen and people with whom he and his clients interacted would be found at the three locations s/he authorized for search. S/he must also have been convinced that a less intrusive method would have resulted in the loss or disappearance of material evidence of criminal wrongdoing.
The likelihood that Mr. Cohen had possession and control of non-privileged evidence of criminal wrongdoing is high. Pretend, for a moment, he was counsel for a mob boss. A stretch, I know. Communications between lawyer and client for the purpose of committing, advancing or carrying out some wrongful/illegal act such as a crime are not protected. Pretend, for a moment, he himself was actively engaged in criminal wrongdoing. A stretch, I know. Not privileged. Pretend, for a moment, Mr. Cohen recorded communications with third persons, not his clients, for later use, say, to blackmail those persons. Not privileged. Say he was on a board of directors or served as an officer or director of a corporation that was involved in activities of interest to criminal investigators and prosecutors. If those activities did not already fall within one of the foregoing exceptions to the attorney-client privilege, those activities likely would not be protected because he was not acting in the capacity as attorney. These are a few of the exceptions. Others are discussed below. Many courts construe privileges very narrowly because they don’t much like the idea of suppressing relevant evidence.
The key to assuring a prosecution can utilize this and similar information without the taint of legitimately privileged information ending up in the hands of the prosecution team is to assure a clearly delineated, fully functioning taint review process is in place so only non-privileged information is disclosed to a taint-free team.
NOT ALL SEARCHES AND SEIZURES ARE CREATED EQUAL
I have my client’s express permission to share his story with you. Without that permission, my ethical duties of confidentiality and loyalty would likely prevent discussing his case, even though everything mentioned in this post can be found somewhere in the public record.
It all began in 2005 when federal agents angrily left his law office after he declined their informal invitation to share with them attorney-client information which he believed he was required to maintain as confidential under legal and ethical mandates. After that meeting, the client and my law firm exchanged extensive, detailed correspondence about this encounter and the client’s and our views concerning the investigation and potential defenses to any criminal charges. The correspondence was conducted under firm letterhead, was extensive, and was between client and lawyers seeking and providing legal advice concerning past conduct. The correspondence also addressed how the client could avoid potential future criminal exposure while he remained under investigation.
The story picked up in March 2006 when a large contingent of armed federal agents occupied his law office for three full days and seized 67 boxes of documents and a terabyte of electronic data comprised mostly of the files, work product, and attorney-client communications of hundreds of his clients, most of whom were not under criminal investigation. Unfortunately, my client and a couple of his clients were under criminal investigation relating to certain business they had transacted together.
The United States, in my view, went about this in completely the wrong way. The government should have proceeded by way of subpoena or scrupulously complied with the regulations and guidelines to protect attorney-client privileged communications and work product. Proceeding by way of search warrant and totally screwing up the taint review process gave later defendants near limitless fodder to challenge the criminal charges and integrity of the prosecution. Our position was once the United States seized law firm records, the government owned the responsibility for determining whether the records were subject to the attorney-client privilege, whether the records fell within some exception to the privilege, and whether the records could be turned over and used by (or must be withheld from) the prosecution team in bringing and sustaining criminal charges against the lawyer and his clients.
Had the government issued a subpoena for the records, my client could have been required to create a “privilege log” identifying any records he withheld and assert appropriate objections to their production based on privilege for his hundreds of clients. A judge, magistrate or special master would ultimately have overruled or sustained those objections after reviewing the records in chambers — in camera — meaning s/he would have made the decisions about privilege without the records’ disclosure to the government. Circumventing this process via search and seizure complicated the government’s job exponentially, setting multiple traps into which the government repeatedly tripped and, on occasion, jumped.
The search and seizure of his law office was conducted pursuant to a warrant issued by a “neutral” federal magistrate. The agents obtained the warrant with the assistance of the local office of United States Department of Justice (USDOJ). The USDOJ had submitted an affidavit of an investigative agent to the federal magistrate in support of its application for issuance of the warrant to search and seize the lawyer’s office. The affidavit, which was signed under penalty of perjury, was later unsealed. It set forth what agents claimed was probable cause that evidence of specific criminal activity existed at the lawyer’s office and in certain client files. The warrant application further explained that other measures to obtain the information from the lawyer had fallen short.
A lawyer’s office is filled with information that, generally speaking, is off limits for search and seizure due to the purpose and nature of attorney-client relationships and communications.
So, the application went to extraordinary lengths to assure the magistrate that if she issued the warrant, everything seized would continue to be shrouded in secrecy and no records from that law office would be turned over to a prosecution team until the records had been thoroughly reviewed by what is known as a “taint team.” The “taint team,” the USDOJ promised, would not be comprised of any of the lawyers or investigators from the prosecution team, although they would be from the same US Attorney’s office and investigative agencies. The government promised the taint team would release to the prosecution team only non-privileged records that fell within the scope of what the magistrate would authorize the agents to search and seize within the four corners of the warrant.
CROSS THEIR HEARTS AND HOPE TO DIE: A FEW SUGGESTIONS, SPEAKING GENERALLY
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.
If the magistrate issues the search warrant based on a promise and inducement that the government will (1) keep all privileged information confidential and (2) not disclose any of it to the prosecution team until the breadth and depth of what may and may not be provided is settled (either by the parties or further order of the court), by all means keep that promise.
If the government assures the issuing magistrate that all seized material will be carefully reviewed by a “taint team” and segregated into “privileged” and “non-privileged” categories, the government ought to be certain (1) the members of the taint team are competent, know what they are doing and understand their mandate, (2) the members understand the attorney-client relationship and privilege, (3) the members understand what potential exceptions exist to the attorney-client privilege, and (4) the “taint team” actually review the documents, one-by-one, for privilege.
The prosecutor ought not gain — and ought not give even the appearance of having gained — access to any of the information that is under “taint” review in any form until the “taint” review is complete and the parties (and the court if necessary) determine (1) what is privileged and must be withheld and returned to the lawyer whose office was searched, (2) what falls outside the scope of the search warrant, even if not privileged, and must be returned to the lawyer whose office was searched, (3) what is non-privileged and within the scope of the warrant and can be turned over to the prosecution team, and/or (4) what, if anything, falls within an exception to the attorney-client privilege, falls within the scope of the warrant and can be turned over to the prosecution team.
When one gets caught with his hand in the cookie jar, it is best to be straight with the judge about it.
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 pretty big deal, even if the target of the investigation is someone we don’t much care for. In American jurisprudence, searching a lawyer’s office is tectonic. 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.
Why should the idea of searching a lawyer’s office give us pause? Because it risks exposure of client confidences
This analysis begins with the rights to life, liberty, property and the pursuit of happiness which founding documents declared pre-exist (and are therefore not privileges bestowed by) government. In their wisdom and to attempt to prevent the government from becoming despotic, the Founders established safeguards to those rights against government interference. Given the centrality of those rights, the government ought not be in the business of interfering with or infringing them short of very compelling reasons upon which we collectively agree. Many of those safeguards are found in the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Generally speaking and through legal mandate and our form of self-governance, we allow the government to infringe those rights only on condition it has met certain constitutional thresholds. In principle.
In principle, the government bears the burden of meeting the thresholds within those safeguards before infringing core rights. In principle, the government usually does so within the confines of the criminal justice system by giving notice of allegations against a citizen (indictment, complaint, criminal information) and providing the citizen the opportunity to respond and be heard in a meaningful way. In order to respond and be heard in a meaningful way within a legal system that is foreign to most people, individuals must have access to advice and counsel about their rights vis-a-vis the government. People cannot receive meaningful legal advice without being forthcoming and candid. Without the assurance of confidentiality of communications in which they seek and receive legal advice — attorney-client privilege — people will not be forthcoming and candid.
People also need and seek legal advice in order to understand and conform their behavior to the law. Laws, regulations and the like can be very sophisticated and complex. Secrecy is also often necessary in order to create and preserve value and security. Without the assurance of confidentiality of communications in which they seek and receive legal advice, people and companies will not be forthcoming and candid.
Allowing the government to pierce that sanctuary without a compelling reason completely destabilizes and undermines our system of justice and turns the government into an authoritarian regime, the type the Founders sought to prevent. As one court explained, the attorney-client privilege “is essential to the preservation of liberty against a powerful government” because “[p]eople need lawyers to guide them through thickets of complex government requirements.” United States v. Chen, 99 F.3d 1495, 1499 (9th Cir. 1996).
In the seminal case Upjohn Co. v. United States, 449 U.S. 383 (1981), the United States Supreme Court explained:
“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev.1961). Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U. S. 40, 445 U. S. 51 (1980):
‘The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.’
And in Fisher v. United States, 425 U. S. 391, 403 (1976), we recognized the purpose of the privilege to be ‘to encourage clients to make full disclosure to their attorneys.’ This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U. S. 464, 470 (1888) (privilege ‘is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure’). . . .
[T]he privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice. . . . The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant. See ABA Code of Professional Responsibility, Ethical Consideration 4–1:
‘A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client, but also encourages laymen to seek early legal assistance.’”
EXCEPTIONS TO THE PRIVILEGE
First, generally speaking 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/Cohen matter, a lawyer may be required to establish proof of the attorney-client relationship in order to invoke a claim of privilege.
Second, the privilege belongs to the client, not the attorney. The attorney cannot waive the privilege unless so authorized by the client. As noted the client can waive it, even unwittingly, by sharing the communication(s) with third persons.
Third, the privilege does not exist when the communication is for the purpose of committing, advancing or carrying out some wrongful/illegal act such as a crime.
Fourth, the privilege may not apply where the lawyer is not serving in the role as an attorney but instead as a business partner, officer or director.
Fifth, the privilege protects only confidential communications and does not protect information that exists independent of the communication between the client and lawyer.
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 (and I have already bored you to death). What transpired both before and after the indictment issued, however, included the following:
• Shortly after the search and seizure of the law office in 2006, the judge expressed the following concern: “I see a bigger danger of the knowledge being revealed. . . . I see the damage of tainting the prosecution and it is the court’s interest to insure that the process is not subverted or sabotaged by a taint on the prosecution or a taint on the respondents.”
• The subjects of the search and seizure objected to the government’s request that they were somehow obligated to come in after the fact and designate what they believed to be privileged. Why? It was a very expensive process. We simply declared everything privileged, particularly anything the “taint team” came across concerning the non-subjects of the investigation (the hundreds of others of our client’s clients). Those clients’ privilege was not their lawyer’s to waive. More importantly, compelling the subject of the search to tell the government why something was privileged could easily violate the Fifth Amendment right against self-incrimination. A defendant has no obligation to assist the government in his/her prosecution. Moreover, allowing the lawyer’s clients who were also subjects of the investigation to review the seized documents exposed those clients to the privileged information belonging to the other hundreds of clients of the law firm and each other’s privileged information.
• The federal agents had segregated the seized records into different categories for purposes of the “taint review,” including non-privileged and potentially privileged. At the hearing where the judge expressed the concern about government taint, the Assistant United States Attorney in charge of the taint team admitted in court: “We have not relied at all on the initial potentially privileged designation made by the agent[s] at the time of the search warrant. And in hindsight, that was probably a mistake. . . . The agents aren’t trained to review for privilege. We asked them not to even try this time [to segregate the records into designations]. Again, because in our view it was frankly a flop on when that was done with the — the physical documents. It just didn’t — it didn’t work because they weren’t trained to do this. It got us into all sorts of questions of, the government considers these things privileged when the lawyer ultimately responsible for making the call didn’t — don’t necessarily agree with that.”
• Well before the taint review process was abandoned and everything turned over to the prosecution team, 17 boxes of documents were located in a room 12 feet from the lead prosecutor’s office.
• During the purported “taint review” process, the United States turned over a stack of documents it claimed were privileged. The stack, sent over in one manila envelope, was less that one inch thick. Mind you, this was from a law office in which nearly 70 bankers boxes of hard documents were seized.
• During the purported “taint review” process, the leader of the taint team claimed he had reviewed every single document. My client went to the location where the documents were stored and, while going through them, found the attorney-client correspondence between him and my law firm from 2005 in which the client and we had discussed the investigation and potential defenses to any criminal charges in some detail.
• During a hearing, the taint team leader denied the 2005 correspondence was in the seized documents because, in his words, he had reviewed every page of every document and not come across it. It was only after the government abandoned the taint review process, the indictment had issued and the government supplemented its designation of “privileged” documents that the 2005 correspondence was returned to our client, through us, by burying it in the middle of the production. No one from the prosecution or “taint” team chose to correct the record, despite lawyers’ duties of candor to the court. Unfortunately, it seems, the clearly privileged correspondence between our client and us about the very case at issue had been available to the prosecution team. I cannot say whether they actually read it or used it in some fashion to attempt to undermine my client’s defenses.
• At the arraignment, the lead prosecutor (not the leader of the taint team) handed to defense counsel, me, a hard drive containing all electronic records seized in the raid. Clearly, the “taint team” had turned over everything to the prosecution team and not simply the non-privileged documents.
• In light of the ugly history of incompetence and misrepresentation concerning the taint review process, the lead prosecutor tried to shift the obligation to the defendants and to claim none of the information to which he and his team had been exposed was privileged. His argument speaks for itself: “We have now made our bed and we are sleeping in it, for better or for worse, and so that will be our position consistently throughout this case that the information that we have [been] provided is not privileged. Now, there will be motions likely to suppress based on the attorney-client privilege. We obviously are going to oppose those motions. If at some point down the road the Court determines that some of this information is privileged, then the government has to live with the ramifications that flow therefrom. We are prepared to do so.”
Prosecutors should be “ministers of justice,” not in it to win at any cost. Some prosecutors, however, are in it to win. Yes, they can achieve convictions, particularly in courts where judges give the government the benefit of a doubt they seldom give defendants. But at what cost — to the prosecutor and the system of justice? As Justice Brandeis wrote the following in his dissenting opinion in United States v. Olmstead, 277 U.S. 438, 479 (1925):
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born of freedom are naturally alert to repel invasion of their liberty by evil-minded rules. [But] greater dangers to liberty lurk in insidious encroachment of men of zeal, well-meaning but without understanding.
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizens. In a government of law, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by it example. . . . To declare in the administration of justice that the end justifies the means — to declare the government may commit crimes in order to secure the conviction of a private criminal — would bring a terrible retribution. Against this pernicious doctrine the court should resolutely set its face.”
US ATTORNEYS MANUAL:
9–13.420 — Searches of Premises of Subject Attorneys
NOTE: For purposes of this policy only, “subject” includes an attorney who is a “suspect, subject or target,” or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for “documentary materials” held by an attorney who is a “disinterested third party” (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and USAM 9–19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).
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. Therefore, the following guidelines should be followed with respect to such searches:
A. Alternatives to Search Warrants. In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.
NOTE: Prior approval must be obtained from the Assistant Attorney General for the Criminal Division to issue a subpoena to an attorney relating to the representation of a client. See USAM 9–13.410.
B. Authorization by United States Attorney or Assistant Attorney General. No application for such a search warrant may be made to a court without the express approval of the United States Attorney or pertinent Assistant Attorney General. Ordinarily, authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected.
C. Prior Consultation. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division.
NOTE: Attorneys are encouraged to consult with the Criminal Division as early as possible regarding a possible search of an attorney’s office. Telephone No. (202) 305–4023; Fax No. (202) 305–0562.
To facilitate the consultation, the prosecutor should submit the attached form (see Criminal Resource Manual at 265) containing relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not “tainted” by any privileged material inadvertently seized during the search. This information should be submitted to the Criminal Division through the Office of Enforcement Operations. This procedure does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.
If exigent circumstances prevent such prior consultation, the Criminal Division should be notified of the search as promptly as possible. In all cases, the Criminal Division should be provided as promptly as possible with a copy of the judicially authorized search warrant, search warrant affidavit, and any special instructions to the searching agents.
The Criminal Division is committed to ensuring that consultation regarding attorney search warrant requests will not delay investigations. Timely processing will be assisted if the Criminal Division is provided as much information about the search as early as possible. The Criminal Division should also be informed of any deadlines.
D. Safeguarding Procedures and Contents of the Affidavit. Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. While the procedures to be followed should be tailored to the facts of each case and the requirements and judicial preferences and precedents of each district, in all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.
E. Conducting the Search. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.
While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a “privilege team” should be designated, consisting of agents and lawyers not involved in the underlying investigation.
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.
The affidavit in support of the search warrant may attach any written instructions or, at a minimum, should generally state the government’s intention to employ procedures designed to ensure that attorney-client privileges are not violated.
If it is anticipated that computers will be searched or seized, prosecutors are expected to follow the procedures set forth in the current edition of Searching and Seizing Computers, published by CCIPS.
F. Review Procedures. The following review procedures should be discussed prior to approval of any warrant, consistent with the practice in your district, the circumstances of the investigation and the volume of materials seized.
o Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
o Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
o Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm’s operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
o Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).
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.
See the Criminal Resource Manual at 265, for an attorney office search warrant form.
[updated October 2012] [cited in Criminal Resource Manual 265]
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers.