Friday, August 15, 2008
Two law offices, in different parts of the United States, were recently searched. At Cleveland.com, John Caniglia in an article titled, "FBI raid on lawyer's office was first here in 15 years" writes about a Cleveland law office that was searched. Molly McDonough, ABA Law Journal News, 50 Lawyers Pack Court to Support Solo Whose Office Was Searched, writes about a search of a law office in Texas.
It is surprising to see law offices searched. Prosecutors could easily issue a subpoena for any documents wanted from a law firm. Using a subpoena allows the law firm the opportunity to go to court and contest whether the release of the items would be an violation of attorney-client privilege or work product. It also allows the court to monitor what will be given to the government and what they will be precluded from seeing.
The rationale sometimes provided for using a search over a subpoena is that searches offer surprise and therefore preclude the destruction of documents. The downside for prosecutors using a search is that it requires probable cause and if there are many documents in a place, law enforcement may have to review numerous items to find what they are looking for. This latter point is also a rationale not to allow law office searches. Having the government review documents that serve as the basis for criminal defense cases places the defense at an enormous disadvantage. There is a chilling effect on our system of justice when the government is entering into law offices and removing defense items from that office.
In one case the search is being done by a government agency outside the jurisdiction. This is equally chilling as the government is again making the decision of what is looked at, and what is removed from the premises. The probable cause hearing was ex parte and the defense attorney did not have an opportunity to respond to the government's claims. Having a judge hear about the removal of client documents prior to their removal is important and should be the norm. It is for this reason that the government should use the subpoena process if items from a law firm are needed.
(esp) (w/ a hat tip to Jack King)