Milton Hirsch is a sole practitioner in Miami, Florida and Past President of the Florida Association of Criminal Defense Lawyers, Miami Chapter. He has handled some of Miami's most sensational and controversial criminal cases including the nationally publicized "Mercado Cops" case. He was an adjunct professor at Nova University Law Center, and is a member of the bars of the Southern, Middle and Northern Districts of Florida; the Fifth and Eleventh Circuits; and the United States Supreme Court where he wrote the amicus brief for NACDL in Florida v. Riley.
A third party search, said the United States Supreme Court, is a search arising in that "recurring situation where . . . authorities have probable cause to believe that fruits, instrumentalities, or other evidence of crime is located on identified property but do not then have probable cause to believe that the owner or possessor of the property is himself implicated in the crime. . . ."1 The third party upon whom the search was visited in Zurcher was a newspaper. Third party searches have also been conducted at banks;2 at the offices of doctors, psychotherapists, and clergymen;3 and in private homes other than that of the suspect.4
But all too frequently, the third party against whom the search is directed is a lawyer. Searches of law offices raise complex Fourth Amendment questions that subsume issues of attorney-client privilege and work product privilege. When the attorney whose office is searched is engaged in criminal representation, Sixth Amendment concerns may be triggered as well.
'All Gaul is Divided in Three Parts . . .'
So said Julius Caesar in his famous De Bello Gallico. But all lawyers upon whom third party searches are likely to be visited are divided in two parts: Those whose clients are suspected of wrongdoing, and those who are themselves suspected of wrongdoing.The Unsuspected Lawyer
In O'Connor vs. Johnson,5 police obtained a warrant to search Patrick's Lounge in connection with an investigation into the making of false statements on liquor license applications. In the course of their search, the officers learned that many of the business records they sought were in the custody of attorney David O'Connor, who had represented the former owners of the bar. Police then sought and obtained a search warrant for O'Connor's office.6 The issue, as the Minnesota Supreme Court saw it, was "the reasonableness of searching an attorney's office for documents and files of a particular client to find evidence of criminal wrongdoing. We have here no claim of wrongdoing [on the part of] the attorney. . . ."7The court began its analysis with an extensive discussion of the attorney-client relationship and the privileges that protect that relationship, i.e., attorney-client privilege and work product privilege. In giving effect to these privileges, "we must take care to protect not only the rights of the client who is suspected of criminal wrongdoing in the case which prompts the search warrant, but also the rights of all clients of the attorney whose office is being searched."8 If police are permitted to search through an attorney's files for documents listed in an otherwise valid warrant, said the court, work product privilege will be rendered a nullity. After all, "there is no way the police officers could be sure that they had found all of the items to be seized unless they searched every file in the attorney's office."9
Even the most particular warrant cannot adequately safeguard client confidentiality, the attorney-client privilege, the attorney's work product, and the criminal defendant's constitutional right to counsel of all the attorney's clients. It is unreasonable, in any case, to permit law enforcement officers to peruse miscellaneous documents in an attorney's office while attempting to locate documents listed in a search warrant.10
Cast in the language of search and seizure law, this is an argument directed to the particularity requirement of the Fourth Amendment. A warrant directing law enforcement officers to seize a named document in the files of an attorney will oblige the officers, in order to obtain that document, to scan dozens, perhaps hundreds, of other documents. The officers, having scanned those other documents, can hardly be expected to expunge their contents from memory. Privilege as to those documents would be destroyed, and having been destroyed, could not be restored. This loss of privilege is particularly invidious with respect to client files not pertaining to the suspect client.11
As noted earlier, the O'Connor court was apparently deeply offended by the very notion of a search of the offices of an attorney of whom no malefaction was suspected. It mandated the strongest possible remedy: In the future, all law enforcement efforts to obtain documentary evidence from attorneys not suspected of criminal complicity must proceed by subpoena, never by warrant. To the argument that an attorney on whom a subpoena for documents was served might be tempted to destroy or camouflage the demised documents, the court gave short shrift. "[A]n attorney has an ethical obligation to the legal system and would be subject to discipline if he destroyed documents which had been subpoenaed."12
The O'Connor court's holding -- that the Fourth Amendment categorically forbids the search of a lawyer's office for client documents absent suspicion of wrongdoing as to the lawyer -- goes further than any other court has been willing to go. Compare Gartley vs. Commonwealth.13 The issue in Gartley was precisely the one that the Minnesota Supreme Court chose to address in O'Connor: "[I]s the use of a search warrant a constitutionally permissible means by which to secure the business records of a client suspected of criminal wrongdoing from the office of a non-suspect attorney?"14
Gartley v. Commonwealth
Like the O'Connor court, the Gartley court began its analysis with an extended discussion of attorney-client and work product privilege, and the centrality of those privileges to the attorney-client relationship. But the court in Gartley drew a distinction between documents prepared by the attorney in the course of his representation and documents prepared by the client or another and then delivered to the attorney in the course of his representation. The latter sort of documents, said the Gartley court, are covered neither by the attorney-client privilege nor by the work product privilege. "The Commonwealth [of Pennsylvania, i.e. the prosecution] was not . . . seeking any of the attorney's personal memoranda or notes regarding conversations with his client but, rather, pre-existing documents. Thus, [the attorney and his client] may not invoke the protection afforded by the attorney-client privilege and the work product doctrine."15 This clever distinction, whether valid or not, succeeds in end-running the two principal obstacles to a law office search pursuant to warrant cited by the O'Connor court. But the Fourth Amendment requirement of particularity is unrelated to considerations of attorney-client or work product privilege. The Gartley court acknowledged the problem:We recognize that in the course of execution of the warrant issued here, truly confidential communications may be inadvertently examined by the inquisitive investigator. . . . We are mindful of the need to protect the rights of "innocent" parties -- the other clients of an attorney whose office is made the subject of a search warrant. Although, as here, a warrant may describe the items to be seized and the location of the office in which they may be found with constitutionally sufficient particularity, such searches remain extremely sensitive, in that the executing officers may unwittingly be exposed to other individuals' confidences and secrets.16
Having acknowledged these concerns, however, the Gartley court was unwilling to apply the remedy used in O'Connor. Instead, Gartley proceeds to balance the confidentiality interests of innocent clients whose files may be "inadvertently" and "unwittingly" examined in the course of a law office search with the law enforcement interest in ferreting out unprivileged evidence of crime. The attorney in Gartley had accepted custody of a suspect client's documents. He need not have done so. He did so knowing that no privilege attached to the documents. To hold that a law office is not subject to search because of the confidentiality of the files of non-suspect clients would be to hold that a law office is a haven and sanctuary for damning evidence secreted in the files of suspect clients. Such a holding, according to the Gartley court, is more than the Fourth Amendment commands.
The boundless confidence in the integrity and probity of attorneys that characterizes the O'Connor opinion is nowhere to be found in Gartley. The Pennsylvania Superior Court had an understandable lack of sympathy for a lawyer who accepted custody of documentary evidence of crime, hoping thereby to keep the evidence from ever seeing the light of day. Many courts, and a great many prosecutors, would term such conduct spoliation or even obstruction. Just as the O'Connor court's concern for the role of the ethical lawyer may have prompted it to go beyond the facts of its case in rejecting law office searches entirely, so the Gartley court's concern over the conduct of the putatively unethical lawyer may have prompted it to discount confidentiality concerns and place no special restrictions on law office searches.
Plaintiff in Nathan vs. Lawton17 was a criminal defense attorney engaged to represent one Praylo. In the course of a bond hearing, Nathan made it known to the court and the prosecution that he was in possession of a letter from Praylo's co-defendant Wright, which letter exculpated Praylo and inculpated its author, Wright. After the bond hearing, the prosecutor spoke to Nathan in the hallway and asked for a copy of Wright's letter. Nathan declined to provide a copy, because "he did not believe such an informal request was appropriate. . . ."18
The prosecutor consulted his supervisors regarding the appropriate course of action. Consideration was given to obtaining the letter by directing a subpoena to Nathan, but that idea was abandoned "based on Mr. Nathan's refusal to turn [the letter] over on the first request" and out of concern "that had [we] gone with the subpoena, had a hearing been set up, there was always the chance that the judge would rule with Mr. Nathan and we wouldn't get the letter anyway."19
Instead, a search warrant was obtained for Nathan's office, which warrant was executed by a law enforcement team headed by the prosecutor whom Nathan had so affronted by his refusal simply to hand the letter over. The matter came before the federal district court when Nathan filed a civil rights lawsuit under 42 U.S.C. 1983. The court found "that deficiencies in fulfilling [Fourth Amendment] requirements render the warrant invalid and the ensuing search and seizure unconstitutional."20
Like other courts to consider the issue, the Nathan court expressed concern for the confidentiality interests of clients of the firm whose files were unrelated to the subject matter of the search, but whose files would in-evitably be perused by those conducting the search. Invasion of the privacy of those files in the course of a search for the Wright letter would cause those clients to lose "faith in the confidentiality of the attorney-client relationship, thus inhibiting the freedom of consultation which is the basis of our system of legal representation."21 Absent some special and specific assurances that such abuses would not occur, the warrant as drawn and executed was lacking in the constitutionally required particularity.
[T]he warrant states with particularity the object to be seized; i.e., the letter. It fails, however, to describe the place to be searched with sufficient particularity. While the address of plaintiff's office is stated, the warrant would, in reality, allow a wide-ranging look-see throughout the office.... There is no limitation as to where in the office the officials would be permitted to search. They could have legally gone through any file and read anything written on yellow legal paper to determine whether it was the letter they sought. The danger is not that these privileged documents would be taken but that the information gathered would be disclosed, retained and used.22
Unfortunately, the Nathan court does not state precisely what additional precautions should have been built into the warrant, or utilized in the course of its execution, to render it valid. Nor does the court go so far as to state categorically that searches of law offices are per se unreasonable or lacking in particularity. On the contrary; the court expressly rejects the suggestion that prosecutorial authorities must employ the less intrusive subpoena instead of the more intrusive search pursuant to warrant as a matter of course.23
Invalid Warrant
Similar factually to Nathan is Central Wyoming Law Associates, P.C. vs. Denhardt, (CWLA).24 In CWLA, an attorney named Massey represented a juvenile client identified only as "LH." LH, while incarcerated in the county jail, was allegedly sexually assaulted by other prisoners. LH's family asked Massey to look into the prospect of bringing a claim for damages against the jail authorities based on this assault. In the course of his investigation, Massey interviewed another juvenile, "RF," who proved to be an eyewitness to the assault of LH and gave Massey a handwritten account of what he had seen.25A deputy sheriff became aware of the existence of the RF statement. He then sought and obtained from Judge Denhardt, later to be the defendant in the federal declaratory action, a warrant authorizing the search of Massey's law offices and the seizure of "written and/or typed statements by [RF] concerning an alleged assault against [LH] which occurred in the Fremont County Jail." Denhardt accompanied the sheriffs in their execution of the warrant.26 The sheriffs were greeted at the door by one of Massey's partners, who, after some legal research and some attempts to contact another judge, produced a document that satisfied the warrant and those serving it. The officers left without actually searching the files of the law office.
In holding the warrant invalid for lack of particularity, the CWLA court made useful suggestion as to how a future court might properly draft a warrant authorizing the search of a law office.
The warrant in this case makes no reference to any dates or approximate dates with respect to the statement sought, including the date that the alleged assault took place, or the date that R.F. gave Massey a statement. In addition, while Judge Denhardt did...accompany the executing officers to [the law] offices, other prophylactic measures could have been taken to expressly delineate the narrow scope of the search. . . . [Judge Denhardt should have] wr[i]t[ten] on the warrant that the "execution of the Warrant is not to violate any attorney-client privilege as such may exist" in order to put the executing officers on notice that special considerations are involved in the search of confidential files belonging to any attorney, especially in a case like this, where the attorney is not the target of the investigation.27
The court stated a clear preference for, but came short of mandating, the use of subpoenas in such situations.
From the foregoing précis of four leading cases, certain principles emerge. No court other than O'Connor has laid an interdict upon the search pursuant to a duly authorized warrant of the offices of an attorney. Absent a display of the sort of righteous indignation that drove the O'Connor opinion, no court is likely to do so again. The trend of authority is to recognize the constitutionality of a properly delimited search.
For a search to be acceptable, the warrant that authorizes it must give special consideration to the particularity requirement of the Fourth Amendment. A warrant that is sufficiently particular to justify the search of, for example, a commercial business or even a home will likely be insufficiently particular to justify the search of a law office. In applying the particularity requirement, courts seem implicitly to be considering whether the lawyer has abused the shield of confidentiality; whether the lawyer's other client files -- those unrelated to the object of the search -- will inevitably come under scrutiny; and whether the magistrate issuing the warrant appends special instructions or limitations expressly intended to protect those other client files. Curiously, the mala fides of a prosecutor or police officer who might as well have proceeded by subpoena do not always form part of the reviewing court's calculus.
These conclusions apply only in the case of the attorney who is not himself suspected of crime. Such an attorney holds documentary evidence because he is an attorney, and for no other reason. For the attorney who holds such evidence, not in his capacity as a lawyer, but in his capacity as the subject or target of a criminal investigation, the rules are, understandably, different.
The Suspected Lawyer
An attorney enjoys no immunity from the consequences of his own criminal conduct. When there is probable cause to believe that a lawyer has engaged in criminal malefaction, courts have not hesitated to authorize the search of a place where evidence of that malefaction may be found -- including the offices of the offending attorney.National City Trading Corp. ("NCTC") was set up by attorney Ira J. Sands ostensibly as a broker of silver and other commodities. In reality, NCTC was a "boiler-room" scam. NCTC was located in Sands's law offices; the only name on the front door was that of Sands. What appeared to be Sands's law library was set up as a telephone room for the boiler-room scheme. "[S]pace utilized by the law office on the one hand and the business operation on the other was for all intents and purposes commingled.... The fact that this was a law office is thus wholly coincidental."28
Federal agents obtained a warrant authorizing the search of the NCTC/Sands premises for evidence and instrumentalities of violations of Commodities Exchange Act violations,29 wire and mail fraud violations, and conspiracy. The warrant expressly authorized seizure of "customer files, customer lists, personnel files, financial records, banking record including canceled checks, telephone records, correspondence, mail and telegram records, sales literature, contracts, tape recordings, calendars, diaries, silver bullion" and a particular photograph.30 A memorandum was given to the federal agents conducting the search. The memo explained that:
National City Trading Company's offices are contained in a suite of law offices belonging to attorney Ira J. Sands. Although Sands is the corporate attorney for NCTC, the search will only concern NCTC and not Sands's general law practice. We have authority to search the entire suite of offices. However, every effort should be made to avoid disrupting Sands's general law practice.31
Additionally, an assistant U.S. attorney cautioned the agents not to seize any documents that did not pertain to NCTC, or to search any briefcases or bags of persons not associated with NCTC.32
Although the court in National City Trading Company was attuned to the issues of Fourth Amendment particularity, attorney-client privilege and work product privilege that concerned the O'Connor, Gartley, Nathan, and Central Wyoming Law Associates courts, it found the facts before it to be "totally distinguish[able]" from those cases. "[H]ere the lawyer actually permitted the allegedly criminal business operation to take place at this office." Quoting the opinion of the district court below, the court noted that "[A] criminal enterprise does not exempt itself from a search warrant by conducting its business and keeping its records in its lawyer's office."33
Lawyer/Banker
The defendant in United States vs. Chuang34 was the chairman, president, and chief executive officer of a financial institution styled the "Golden Pacific National Bank." He was also an attorney, with his law offices located on the third floor of the bank building. Chuang's law office did double duty; it was also his office as bank president. The court described the relationship between the law firm and the bank as follows:At the main entrance to the firm on the third floor near the elevator was a large wood sign marked "Chuang and Associates, Attorney at Law." Chuang's office and the firm were also accessible via an interior staircase from the Bank, which made it easy to travel between the firm and the Bank's office on the first, second and fourth floors. There was no sign to identify the law firm when it was entered this way. Nor was there a sign or directory at the entrance to the building, in the lobby or in the elevator identifying the law firm as an entity separate from the Bank. The law firm apparently shared telephone lines with the Bank. There is no evidence that there was any formal lease arrangement between the Bank and the firm. . . . In a one-year lease in effect [at the time] the firm subleased space on the third floor from the Bank at a below-market rate. The Bank also paid the salaries of all secretaries at the firm. In exchange, the firm charged the Bank lower rates than it charged other clients.35
On June 21, 1985, as a result of an examination by the Office of the Comptroller of the Currency, the bank was closed and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver. The FDIC secured the building that same night, and the next day FDIC employees began an examination of the bank's books and records. In the course of seeking out and examining such documents, FDIC representatives searched files that were later determined to belong to Chuang's law firm.
The analysis employed by the Chuang court differs significantly from that employed in other cases. The search visited upon the bank was conducted, not pursuant to warrant, but pursuant to the FDIC's authority under 12 U.S.C. 1821(d) to marshal the bank's assets and conduct the bank's affairs. There is well-recognized authority for the proposition that businesses operating in traditionally regulated industries may be subject to warrantless administrative search if the search is conducted pursuant to a statutory scheme that satisfies the purposes of the Fourth Amendment.36 The Chuang court concluded that the banking industry is such a traditionally regulated industry, and that the statutory scheme pursuant to which the FDIC conducted its searches and seizures supplanted the warrant requirement.
Businesses operating within such traditionally regulated industries are deemed to be aware of the statutory search and seizure authority applicable to their conduct, and to tailor their expectations of privacy accordingly. Because Chuang's law office and his bank office were, in effect, one and the same, Chuang had, in the court's view, exposed his law office documents to the statutory search and seizure provisions applicable to his bank office documents. In effect, Chuang had reduced the objectively reasonable expectation of privacy he enjoyed in his law office documents to the level he enjoyed in his bank office documents. That, in any event, is what the court concluded: "[T]he offices of Chuang and his secretary, in addition to being part of the law firm, were also an important part of the bank. Bank business in addition to law firm business was carried on there. . . . [B]y operating his law firm out of the same offices from which he ran the bank, Chuang voluntarily reduced the expectation of privacy in the firm's premises that he might have enjoyed had the firm been located elsewhere."37
The facts of Chuang are more than a little unusual. Chuang himself was suspected of wrongdoing, not in his capacity as a lawyer, but in his capacity as a banker. He had the bad judgment to locate his law office within the bank. He had the bad luck to be engaged in a business subject to administrative search without warrant. Until such time as a lawyer establishes his practice within a "chop shop;"38 a mine;39 a gun and ammunition store;40 a bar;41 or a hazardous waste transportation facility;42 the Chuang case is not likely to be cited as precedent.
In Klitzman vs. Krut,43 attorney Charles Klitzman was the target of a grand jury investigation. Postal inspectors believed that Klitzman had engaged in a conspiracy to defraud insurance companies by submitting false medical reports and inflated medical bills in personal injury cases. The inspectors obtained not one but three warrants to search the offices of the law firm in which Klitzman was a partner.
The first such warrant authorized the search and seizure of
all closed or non-active files of personal injury claimants, business bank account records of the firm, ledger books concerning trust accounts, retainer and compensation agreements and financial records pertaining to personal injury clients, records reflecting payments to attorneys, investigators, and other third parties, case registers, legal diaries, telephone message books and pads, visitors logs, telephone toll records. . . .44
The second warrant authorized the seizure of certain open files of personal injury claimants. The third warrant extended the scope of the search to include the storage room of the law firm. Law enforcement officials closed the law firm's offices for a full day in the course of conducting their search. They seized some 2000 documents, and hauled them away in two large trucks.45 The district court found that the agents seized materials without regard to their relationship to the alleged conspiracy.
The court of appeal found that, notwithstanding Klitzman's status as a target, the search visited upon his law offices was constitutionally impermissible. The warrants invited the officers who executed them to "search all client files, open or closed;" to seize "all of the firm's financial records, file lists and appointment books, regardless of whether those documents were connected in any way to the personal injury files sought by the grand jury;" to engage in "a wholesale search and seizure" of documents.46 There was no "attempt to limit the seizure to files of clients who may have alleged that their medical bills were overstated," nor to "materials involving the medical personnel allegedly involved in the fraudulent scheme." The court characterized the search and seizure as a "government rampage."47 Like other courts to consider the question, the Klitzman court reserved its greatest sympathy for firm clients uninvolved in the alleged scheme to defraud; and for attorneys who, although members of the firm, may have been unaware of Klitzman's misconduct.
'Fourth Party' Problems and the Statutory Response
In its opinion in Zurcher, the Supreme Court offered a rough definition or description of "third party search," which definition appears supra at 5. Essentially, a third party search is the search of property in circumstances in which the owner or occupier of the property is not also the target or subject of the investigation furthered by the search. If the prosecution is investigating Smith, and conducts a search of the offices of Smith's lawyer Jones for no other reason than that Jones is Smith's lawyer, the search of Jones' law office is a third party search and Jones is the third party to the search.To carry the analysis further, I must employ a malapropism. Because there is, for Fourth Amendment and other purposes, a distinction between (in my example) Jones the lawyer as third party, and Jones' clients other than Smith; or between Jones and other members of Jones' law firm; I will refer to those other clients and other lawyers as "fourth parties."
As previously discussed, courts have reached different results when the lawyer whose office is being searched is himself a suspect than they have when the lawyer whose office is being searched is not a suspect. But courts have not employed different analysis in reaching these different results. In both situations, courts measure the warrant and its method of execution against the particularity requirement of the Fourth Amendment. That requirement is, in turn, given vivifying effect in this context by the attorney client and work product privileges. A warrant authorizing police to search for and seize a carefully described pair of bloody gloves in a specifically identified closet of a lawyer's office is likely to be upheld in any jurisdiction,48 whether or not the lawyer is himself suspected of wrongdoing. The search for bloody gloves is a search for evidence against one client of the law firm, and is not an invitation to peruse documents or files relating to other clients, members, employees, or visitors of the law firm (the "fourth parties"). It is a fair summary of the case law to say that courts' willingness to approve law offices searches is directly related to the level of suspicion attaching to the lawyer himself, and inversely related to the level of intrusion into fourth party privacy and confidentiality interests.
The concerns that prompt this solicitude for the rights of fourth parties are real. A warrant authorizing law enforcement to search for and seize all documents reflecting lawyer Jones' complicity in a scheme to enable client Smith to launder drug proceeds may reasonably be interpreted by the executing officers as a license to examine every scrap of paper in Jones' offices. After all, if Jones really is in cahoots with Smith in a criminal enterprise, Jones will likely be cunning enough to conceal crucial documents elsewhere than in his Smith file. How can the executing officers say that they have complied with the mandate of the warrant until they have examined every file in Jones' office, every file in Jones' partners' offices, every file in the offices of all the associates?
Courts have recognized that even when a corrupt relationship exists between a law firm and one or more of its clients, that relationship ought not to entitle law enforcement to seize and read the files of other clients. Such files may hold all the details of a messy divorce, or may include sensitive family secrets noted in the course of preparing an adoption, drafting a will, or litigating a juvenile court matter. It is no answer to say that prosecutors or their agents act with the best of motives; from the point of view of the fourth parties, it is not the prosecutors' motives but their methods that are at fault. The innocent clients of guilty attorneys are as much entitled to protection of their confidences as are the innocent clients of innocent attorneys. And as a matter of legal precedent, if the police can take all client files from an unethical criminal lawyer, they can take all client files from an ethical criminal lawyer, and they can take all the files from a civil lawyer, a doctor, a psychotherapist, or a priest.
Other than the Minnesota Supreme Court in O'Connor, no court has ruled categorically that the office of a lawyer is immune from search so long as that lawyer is not suspected of misconduct.49 Courts have, however, made far-reaching efforts to fashion protection for fourth parties.
Judicial Remedies: Limiting Instructions
One line of authority seeks to protect fourth parties before the fact of the search by providing, either in the warrant itself or in separate instructions to the officers executing the warrant, language alerting the executing officers to the confidentiality interests of fourth parties and directing them how best to avoid infracting those interests.50 In National City Trading Corp., supra, the case agent prepared a memo for distribution to the 25 agents assigned to participate in the search, making them aware that part of the area to be searched included a law office and that "every effort should be made to avoid disrupting" the law office.51 Additionally, the prosecutor in charge of the case gave specific instructions to the agents "not to seize any documents that did not pertain to NCTC or to search any briefcases or bags of persons not associated with NCTC."52Judicial Remedies: Adversary Hearing
In Morley vs. MacFarlane,53 the Supreme Court of Colorado came close to establishing a rule that an adversary hearing is required before documents seized from a law office can be examined by law enforcement authorities. The opinion included these dicta:In order to assure that intrusions into client files and materials do not unreasonably interfere with the attorney-client relationship, an adversary hearing is desirable when the attorney-client privilege or the work product doctrine is invoked to bar the dissemination of documents seized as a result of a law office search. In conducting such a hearing, the trial judge is able to rule on the applicability of the attorney-client privilege and the work product doctrine to each document seized, thereby preserving a detailed record for appeal.54
In the circumstances of the Morley case, however, the court found no error in the decision of the trial judge not to hold an adversary hearing. Morley was himself the target of the investigation, "and the search of his offices was specifically designed to obtain evidence of his criminal activities relating to the formation of sham corporations for fraudulent purposes."55
The efficacy and practicality of the adversary hearing approach is open to question. Apparently the Colorado court was willing to permit officers, acting of course pursuant to warrant, to enter the demised law office and seize documents. The adversary hearing would come afterward; presumably the documents were impounded and sealed in the interim. The problem with this approach, of course, is that it closes the barn door after the horse is gone. During the course of the search and seizure, officers will inevitably examine documents they are seizing, even if their examination is hurried and cursory. Privacy and confidentiality of fourth parties will necessarily be compromised when an adversary hearing comes only after seizure of documents; although not to the same degree that they would be if no adversary hearing were had at all.56
Judicial Remedies: Special Master
Deukmejian vs. Superior Court57 involved the search of law offices in connection with an investigation into fraud in the medical industry. A warrant was served on the law offices of Kaplan, Livingston, Goodwin, Berkowitz and Selvin, commanding the search and seizure of records covering a five-year period. The warrant referred to four attachments containing nine pages with over 70 related entities, persons and documents. Three officers and a prosecutor spent more than three hours serving the warrant.During the course of the search, the law firm managed to contact the trial court and obtain a temporary restraining order. The authorities honored the order, suspended their search, and left without taking any documents. The prosecution then sought an extraordinary writ vacating the TRO.58
Before the appellate court could render a final decision, however, the California legislature intervened. Recognizing the serious problems posed by third party searches, the state legislature enacted California Penal Code 1524. Subpart (c) of that statute provides that no search warrant shall issue for documentary evidence in the possession or control of a lawyer, doctor, psychotherapist, or clergyman "who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested" unless certain procedures are complied with. These procedures, set forth at subparts (c)(1) through (3), require the appointment by the court of a special master. The special master is to accompany the officers serving the warrant, and to "inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested." If the items are not forthcoming, the special master superintends the search for and seizure of those items. These seized documents become the property of the special master, who is not to produce them to the prosecution until a hearing has been had on issues of privilege and other objections to production.
The special master procedure subsumes many of the better features of the judicially crafted remedies discussed above. Properly implemented, it softens the blow. It is, however, an incomplete remedy, see discussion infra.
Statutory Remedies
The Department of Justice59 has published "Guidelines on Methods of Obtaining Documentary Materials Held by Third Parties." The claimed purpose of these guidelinesis to assure that federal officers and employees do not use search and seizure to obtain documentary materials in the possession of disinterested third parties unless reliance on alternative means [described elsewhere in the guidelines as "a subpoena, administrative summons, or governmental request] would substantially jeopardize their availability (e.g. by creating a risk of destruction, etc.) or usefulness (e.g. by detrimentally delaying the investigation, destroying a chain of custody, etc.).60
A disinterested third party is defined to mean a "person or organization not reasonably believed to be (1) [a] suspect in the criminal offense to which the materials sought under these guidelines relate; or (2) [r]elated by blood or marriage to such a suspect."61 By their terms, the guidelines apply not only to the search of a law office, but also to the search of a doctor's office62 and a clergyman's study.
Pursuant to the guidelines, no federal agent or employee is to apply for a warrant in lieu of using other, less intrusive methods to obtain documents from third parties unless the application has been approved by the United States attorney for the jurisdiction and authorized by a deputy assistant attorney general.63 In determining whether the use of a search warrant is justified, government attorneys are to consider whether the use of a less intrusive form of process would "likely . . . result in the destruction, alteration, concealment, or transfer" of the demised documents;64 and to consider the immediacy of the government's need for the documents or other evidence, i.e. whether immediate seizure of evidentiary materials is necessary to prevent injury to human life, compromise of an investigation, or destruction of the materials.65
Although the guidelines are cast in very reasonable and helpful language, they create no enforceable rights in persons victimized by their violation. 28 CFR 59.6 provides that, "an issue relating to the compliance, or the failure to comply, with the guidelines set forth in this part may not be litigated, and a court may not entertain such an issue as the basis for the suppression or exclusion of evidence."
The guidelines purport to implement 42 U.S.C. 2000aa, the Privacy Protection Act. In fact the guidelines go well beyond the statute. The Privacy Protection Act affords a small measure of protection from search and seizure to activities within the ambit of the First Amendment. Subject to a great many limitations and qualifications, it is illegal for federal officers, in the course of a criminal investigation, "to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. . . ."66 Unsurprisingly, there have been few lawsuits brought under this statute, and even fewer successful ones.67
In Nathan vs. Lawton, supra, plaintiff claimed, in addition to a violation of his Fourth Amendment rights, a violation of rights secured to him under the Privacy Protection Act. The act protects one's work product interest in public communications; Nathan claimed that the exculpatory letter seized by the prosecution was a public communication because Nathan planned to introduce it in the course of a public trial.68 The court made very short work of this argument.69
Very different conclusions were reached in Klitzman vs. Krut, supra. The court, although "recogniz[ing] that the statute [i.e. the Privacy Protection Act] and the regulations [under 28 CFR 59.1 et seq.] do not by their terms extend to an attorney . . . who is the target of a criminal investigation" insisted that the protections embodied in the statute and regulations thereunder did apply to "other lawyers in the firm who have no connection with the illegal activity."70 The court was not called upon to order, and did not order, the suppression or exclusion of the seized materials in a criminal proceeding; such an order would in any event have been in clear derogation of the provisions of the Privacy Protection Act and the implementing regulations. Exercising its inherent equitable power, however, the Klitzman court did fashion a "procedure that the parties should follow in any subsequent proper government effort to obtain documentary materials...."71
If the government requests specific materials, the Klitzman firm should have the right, in the first instance, to provide the documents voluntarily. If the law firm declines to produce the documents, the district court should institute a workable procedure to protect the interests of the litigants. The procedure should accommodate the needs of the investigating authorities and at the same time protect the significant interests of Klitzman clients who have no connection with the subject of the investigation and also the interests protected by the work product doctrine.72
The court cited the special master procedure of California Penal Code 1524 as an approach consistent with, albeit not required by, its order.73
Conclusion
The special master procedure represents the most fully developed response to the unique problems created by the search of a third party; particularly when the third party is one who can and must assert privileges arising out of his relationship with the person or persons whose confidentiality interests may be compromised by the search. But it is not enough to protect the interests of the third party attorney, doctor, or clergyman. The most empathetic victims of law office searches are the innocent clients, i.e. those clients not suspected of misconduct and not suspected of being aware of or involved in the putative misconduct of the attorney. The special master procedure without more is inadequate to safeguard the rights of these "fourth parties."When the court appoints a special master, it should consider appointing a guardian ad litem for the fourth parties. Such a guardian would not be responsible for superintending the search, conducting the initial review of documents, entering orders as to assertions of privilege, or the like; these are the functions of the special master. The guardian would identify the fourth parties and prepare an inventory of what has been seized with respect to each such party. He would see to it that each such fourth party has been made aware of the fact of the search, and would identify, insofar as it is possible to do so, the documents or other materials taken in the search relating to that fourth party. He would provide the fourth parties with an overview of their legal status and with an outline of what legal redress was open to them. He would keep them aware of court dates and hearings, to the extent those dates were known and those hearings were open to the fourth parties. He would attempt to determine what information, if any, the prosecutorial agency conducting the search had as to each fourth party before the search, and to determine whether the agents learned anything about any fourth party during the course or as a result of the search.
The foregoing would constitute a great deal of inconvenience and expense for somebody, probably for the court itself. Critics will argue, and fairly so, that the burden resulting from such intricate prophylaxis will be considerable. Such critics can be asked, with as good a grace, whether their real objection is to the prophylactic methods used to secure the sanctity of the attorney-client privilege, or to the privilege itself.
The question is far from frivolous. The attorney-client privilege is viewed in many quarters as a necessary evil, and in certain quarters as an unnecessary one. No less a figure than Jeremy Bentham, arguably the father of the modern law of evidence, took the position in his Rationale of Judicial Evidence that a "lawyer ought . . . to be compellable or receivable to disclose a matter of fact, the disclosure of which would be dis-serviceable to a client of his, in respect of a suit or cause . . . in which such client is party, plaintiff, or defendant".74 Attorney-client privilege is to be distinguished from priest-penitent privilege, says Bentham, because the role of the clergyman who hears a confession is to dissuade the sinner from further transgression. By contrast,
the part taken by a lawyer in the character of counsel for the defendant, is exactly the part which is taken by an accessory after the fact to that same felony, with no other difference than that between ignorance and danger on the one part, and knowledge, skill, and security, on the other.75
The attorney-client relationship, says Bentham, is based on contract. A contract to maintain the secrecy of criminal acts, with the hope and intent that their perpetrator go unwhipped of justice, ought in Bentham's opinion to be void as violative of public policy.
Modern critics of the attorney-client relationship as it exists in America today may lack Bentham's stature, and their arguments may lack the force of his, but they have numbers on their side. Yet even those who view lawyers as Shakespeare's Henry Bolingbrooke viewed the abettors of Richard II -- "the caterpillars of the commonwealth" -- must concede that a great injustice is done when the files of 100 innocent clients are seized from a lawyer's office (even a corrupt lawyer's office) along with the file of one guilty client. Those 100 innocent clients are entitled to expect of the legal system that it protect, not infract, their privacy; even if doing so necessarily implies expense, burden, or inconvenience; even if doing so necessarily implies protecting the privacy of guilty clients, and of lawyers. n
Notes
1. Zurcher vs. Stanford Daily, 436 US 547, 553 (1978).2. See, e.g., United States vs. Chuang, 696 F.Supp 910 (S.D.N.Y. 1988), discussed infra at ___. The search of a bank as a third party, or the subpoena of bank documents in the course of the investigation of a depositor, must be analyzed by reference to the Right to Financial Privacy Act, 12 U.S.C. 3401-22. See, e.g., United States vs. Mann, 829 F.2d 849 (9th cir. 1987).
3. Cf. 28 CFR 59.4(b).
4. See McClain vs. Crowder, 840 F.Supp 897 (S.D.Fla. 1994), citing Steagald vs. United States, 451 US 204 (1981) for the proposition that an arrest warrant for Suspect X does not entitle the police to enter the home of Y to arrest X, absent a search warrant referencing Y's home. Cf. the following recent news item:
A Singaporean court was told that 50 Bibles were seized in a police raid on a private home under the country's Undesirable Publications Act. The court was hearing evidence against 66 Jehovah's Witnesses, a sect which is banned in Singapore.
5. 287 N.W.2d 400 (Minn.1979).
6. Id. at 400-1.
7. Id. at 401. The court could certainly have taken a narrower view of the issue. When the police arrived to serve the warrant at O'Connor's office, O'Connor was present and persuaded the officers, before they attempted to affect service, to accompany him to the chambers of the judge who issued the warrant to discuss quashing it. In the event, the judge obliged O'Connor to leave a box of records with the court for review, but let him retain documents he identified as his work product. Nothing was produced to the police. A week and a half later, the judge, having reviewed the box of documents, produced them to the police. The judge later undertook a review of the documents he had initially permitted O'Connor to retain as work product. The Minnesota Supreme Court, considering these facts, stated:
Because the attorney was present so that his office was not searched as the officers had a right to do in executing the warrant, and because the officers were willing to allow the attorney to bring the file and box of records before the court to make a determination of privilege before a seizure was made, it would be relatively easy to find on this record no violation of constitutional rights, the attorney-client privilege, or the work product doctrine, and thus to approve a hybrid procedure -- part warrant, part subpoena. This we decline to do. We must instead examine the validity of the search warrant upon which the court's order was based to determine the propriety of that order.
Id. at 401. Whether the court was correct in finding that it "must" examine the constitutional validity of a search warrant that was never executed and resulted in no search is open to question. Clearly the court wanted to make the strongest possible expression of its position.
8. Id. at 403.
9. Id. at 404.
10. Id. at 405.
11. See discussion infra at ___.
12. Id. at 405. In this respect, the O'Connor court distinguished the holding of the U.S. Supreme Court in Zurcher, supra. In Zurcher, a student newspaper was allegedly in possession of photographs which were evidence of a crime then under investigation. The newspaper, however, had announced its intention to destroy the photos. The Minnesota Supreme Court clearly felt that an attorney not suspected of crime was entitled to the presumption that he would act ethically and would refrain from destruction or spoliation of evidence. The court seemed almost hurt at the contrary suggestion.
13. 491 A.2d 851 (Pa. Super. Ct. 1985).
14. Id. at 857.
15. Gartley at 860.
16. Id. at 860. See also the discussion of "fourth party" problems infra at ___.
17. 1989 U.S. Dist LEXIS 1398 (S.D.Ga.1989).
18. Id. at 4. The written opinion does not record the precise words with which defense attorney Nathan declined to provide so vital a piece of information in response to so informal a request. One can only speculate whether the language employed may have kindled the prosecutorial desire to see Nathan's office searched, and searched in as destructive a fashion as possible.
19. Id. at 5-6. The opinion does not make clear whether the letter was discoverable under the prevailing Georgia rules of criminal procedure. 20. Id. at 15. The court was obliged to grant summary judgment, however, on the basis of the immunity enjoyed by the prosecutors who committed the constitutional tort.
21. Id. at 26.
22. Id. at 27-8 (footnotes omitted).
23. The court also considered a claim made under the Privacy Protection Act provisions of 42 U.S.C. 2000aa. See discussion infra at ___.
24. 836 F.Supp. 793 (D. Wyoming 1993).
25. Id. at 794-5.
26. Id. at 796.
27. Id. at 804-5. The court added that it was
very skeptical and wary of law enforcement tactics that seek to obtain evidence through the back door, especially when the defendants in this case knew, or at a minimum should have known, that the plan that they were embarking on by seeking and authorizing the search of an attorney's confidential work product, would involve sensitive and confidential matters.
28. National City Trading Corp. vs. United States, 635 F.2d 1020, 1024 (2d Cir. 1980),
29. 7 U.S.C. 6b(2) and 6c(c).
30. National City Trading Corp. vs. United States at 1021.
31. Id. at 1023.
32. Id.
33. Id. at 1025-6.
34. 696 F.Supp. 910 (S.D.N.Y. 1988).
35. Id. at 911.
36. See, e.g., New York vs. Burger, 482 US 691 (1987), cited in Chuang at 913.
37. Chuang at 912-3.
38. New York vs. Burger, 482 US 691 (1987); United States vs. Proffitt, 843 F.Supp. 350 (M.D.Tenn. 1994).
39. Donovan vs. Dewey, 452 US 594 (1981).
40. United States vs. Biswell, 406 US 311 (1972).
41. Colonnade Catering Corp. vs. United States 397 US 72 (1970).
42. United States vs. V-1 Oil Company, 63 F.3d 909 (9th Cir. 1995).
43. 744 F.2d 955 (3rd Cir. 1984).
44. Id. at 957.
45. Id.
46. Id. at 959.
47. Id. at 960.
48. Except Minnesota, see O'Connor, supra.
49. Other courts have come close to such a ruling. The opinion in Central Wyoming Law Associates, supra, includes the following dictum at p.805: "[B]ecause the aim of this warrant was to obtain a copy of [the witness's] statement, a subpoena duces tecum could have been used to achieve the same result. This would have avoided granting the executing officers a license to search and seize confidential records of [the attorney] by allowing him to do so himself." See also Gartley, supra, at p. 861 et seq.
50. See, e.g., United States vs. Mittelman, 999 F.2d 440, 441 (9th Cir. 1993); United States vs. Tamura, 694 F.2d 591, 595-6 (9th Cir. 1982).
51. National City Trading Corp. at 1023.
52. Id.
53. 647 P.2d 1215 (Col.1982).
54. Id. at 1222.
55. Id. at 1222-3.
56. See also the concurring opinion of Justice Quinn, p.1223 et seq.
57.103 Cal. App. 3d 253; 162 Cal. Rptr. 857.
58.The petition for the writ was brought in the name of the then-attorney general of California, Deukmejian. Respondent was the court issuing the TRO.
59. 28 CFR 59.1 et seq.
60. 28 CFR 59.1(b).
61. 28 CFR 59.2(b).
62. In appropriate circumstances, this can be taken to include the offices of a psychologist, psychiatric social worker, or nurse. See 28 CFR 59.4(b)(1) and (5).
63. 28 CFR 59.4(b)(2).
64. 28 CFR 59.4(c)(1). In addressing this issue, government attorneys are to consider whether a suspect has access to the documents in question; whether there is a close personal relationship between the party in possession of the documents and the suspect; whether the suspect is in a position to exercise some manner of control over the party in possession of the documents; whether the party in possession of the documents has any reason to want to prevent the government from obtaining the documents; whether compliance with process would likely subject the party in possession of the documents to reprisal or threats of reprisal; whether the party in possession of the documents has ever acted to obstruct justice, or has ever refused to comply with court orders; and whether the party in possession of the documents has expressed any intention to destroy or conceal the documents. Id. at subparts (i) through (vii).
65. 28 CFR 59.4(c)(2)(i) through (iv).
66. 42 U.S.C. 2000aa(a).
67. See, e.g., Barnes vs. Missouri, 960 F.2d 63 (8th Cir. 1992); Minneapolis Star vs. United States, 713 F.Supp. 1308 (D.Minn 1989); Doe vs. Stephens, 851 F.2d 1457 (DC Cir. 1988); Doe vs. DiGenova, 642 F.Supp. 624 (DDC 1986).
68. Nathan at 33.
69. Id. The court also pointed out that the Privacy Protection Act and regulations thereunder are binding only on federal agents or employees, and the defendants in Nathan were state agents and employees.
70. Klitzman at 961.
71. Id.
72. Id. at 961-2.
73. Id. at 962. "[A]t the expense of the government, the court could appoint a master to examine in camera any material that the law firm object to producing. The master could be considered as a special officer of the court with full judicial immunities to preserve all confidences encountered and could make a ruling, which either party could then appeal to the district court."
74. Bentham, Rationale of Judicial Evidence (Bowring edition; London, 1843) p.99.
75. Id. at 100.