The Seizure of Attorney-Client Communications: Fighting Back

DOJ Guidelines and Regulations

1. They are limited to searches of an attorney's “premises” — a law firm's or in-house attorney's office and files — and arguably it does not apply to searches of other offices or other computers at a business in which legal materials may be located; and
2. They are limited to searches regarding “subject attorneys,” defined as an attorney who is either:
   1. a “suspect, subject or target”;
   2. related by blood or marriage to a suspect; or
   3. believed to be in possession of contraband or the fruits or instrumentalities of a crime. U.S.A.M. at §9-13.420. Search warrants for premises of subject attorneys must be approved by the U.S. Attorney after consultation with the Department of Justice. Search warrants regarding attorneys who are not “subject attorneys” but rather “disinterested third parties” require approval by a Deputy Assistant Attorney General. See, 28 C.F.R. §59.4(b)(2) (cited in U.S.A.M. at §§9-19.220-221).

1. Whether the advance notice provided by a subpoena would likely result in the destruction, alteration, concealment or transfer of the materials sought because the suspect has direct control over, or indirect access to, the materials sought (via friendship with, loyalty to, or sympathy for, the possessor of the materials); and
2. Whether the immediate seizure of the materials is necessary to prevent injury to persons or property or to preserve their evidentiary value and/or to prevent delay in obtaining the materials, which delay would significantly jeopardize an ongoing investigation or prosecution.

1. Review of either all seized materials, or of just those materials thought arguably to be privileged, by a judicial officer or special master;
2. The provision of a copy of seized materials to the defense attorney; and
3. Defense attorney input to the court regarding disputes over the seizure of privileged documents.

Pushing Back

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return …. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

1. Whether the government displayed a callous disregard for the rights of the movant;
2. Whether the movant has an individual interest in and need for the property he wants returned;
3. Whether the movant would be irreparably injured by denying return of the property; and
4. Whether the movant has an adequate remedy at law for the redress of his grievance.

Conclusion