Law office searches: the assault on confidentiality and the adversary system.

• Author: Davis, John E.

1. INTRODUCTION II. THE DANGERS OF LAW OFFICE SEARCHES

   1. Attorney-Client Confidentiality

   2. Crime-Fraud Exception

   3. Effect on the Adversary System III. THE LAW OF LAW OFFICE SEARCHES

   1. Advantages of Search Warrants

   2. Advantages of Subpoenas

   3. Zurcher v. Stanford Daily

   4. National Legislative and Rulemaking Action

   5. The Standard for Law Office Searches

   6. Judicial Restrictions on Law Office Searches

   7. The Cali Cartel Lawyers Raid

   8. Putting Teeth into the Reasonableness Inquiry: Central

      Wyoming IV. ALTERNATIVES TO THE CURRENT REGIME

   1. The Subpoena-Preference Rule

   2. The Special Master System

   3. The Hybrid Order V. RECOMMENDATIONS VI. CONCLUSION

1. INTRODUCTION

   The issues raised by [law office searches] involve fundamental

   questions regarding both the power and the role of government

   in our society. The questions posed relate to the most basic and

   central liberties guaranteed to all citizens by the Bill of Rights,

   issues about the relationship between individual

   and government and the proper scope of each one's authority....

   [A] Court sits as an impartial decisionmaker precisely to protect against

   injustices and erosion of the constitutional rights of the citizens of

   this country. Law enforcement officials must act with reasonable diligence

   and care before invoking the heavy hand of government, especially ... where

   the reasons offered by the enforcement authorities do not justify

   resorting to such drastic means when sensitive and delicate matters are

   concerned.(1)

   Prosecutors today are increasingly employing tactics, including searches of lawyers' offices, that are directed toward breaching and exploiting attorney-client confidentiality to obtain evidence in criminal cases.(2) These searches infringe upon the client's Fourth and Sixth Amendment rights, his expectation of confidential communications within the attorney-client relationship, the attorney's Fourth Amendment and work-product rights, and the effectiveness of our adversarial system as a whole.

   Raids on attorneys' files invoke more than a simple conflict between a lawyer's obligation to protect the confidential communications of his clients and the government's desire to obtain evidence in a criminal investigation. Such invasions undermine a lawyer's ability to advance his client's cause and remove from his command two major sources of strength: control over client information and the attorney's own work material.(3) This usurpation amplifies the systemic imbalance of power between the prosecution and defense and undermines the dominant purpose of our adversary system: the search for the truth.

   This Note will address the law and policy issues raised by searches of lawyers' offices and the impact of such searches upon the attorney-client relationship and our legal system.(4) Part I briefly describes the attorney-client privilege and work-product doctrine. This section then discusses the development of the law office search as an accepted prosecutorial tool and the impact of these searches on the attorney-client and work-product privileges. The law office search and the use of the crime/fraud exception to circumvent these privileges imperil the attorney-client relationship and our adversary system as a whole.

   Part II outlines the relevant social, legal, and practical developments dictating the recent surge of law office searches. Although the use of subpoenas to obtain evidence from attorneys has been effective in the past, prosecutors are now turning to search warrants when dealing with their adversaries. Judges have enabled this practice, with almost all courts treating searches of lawyers' offices as constitutionally indistinguishable from ordinary searches. Most judges scrutinize such searches individually to determine whether there has been an incursion on a protected privilege. This highly subjective inquiry has resulted in unsettled and inconsistent case law. There is also an alternative legal doctrine that holds searches of nonsuspect attorneys' offices per se unreasonable. Some courts accomplish this same result by strictly scrutinizing searches for scope and particularity.

   Part III introduces and discusses three possible alternatives to the present regime that seek to deal with the dangers raised by the law office search. One alternative is to require the preferential use of a subpoena instead of a search warrant when nonsuspect attorneys' offices are involved. A second alternative is to establish a special master procedure that insulates documents seized during a law office search from law enforcement inspection until a determination on privilege can be made. The third alternative discussed is the "Hybrid Order," which takes the form of a search warrant but allows the attorney to gather and produce designated documents without excessive government intrusion upon the law office.

   Part IV presents the author's recommendation as to the best solution to the problems raised in this Note. A combination of the subpoena-preference rule and post-search procedural protections will best uphold the values underlying the adversary system, including the preservation of privileges, while ensuring that evidence is secured for investigation and prosecution of wrongdoing.

2. THE DANGERS OF LAW OFFICE SEARCHES

   Until recently the government rarely employed search warrants against legitimate businesses or professionals, adopting less intrusive means, such as subpoenas, to investigate wrongdoing.(5) Today, warrants are used much more liberally, even when there is no danger of destruction of evidence and when the subject of the search is not a target of a criminal investigation.(6)

   This section will consider the policies and purposes of the attorney-client privilege and work-product doctrine, and how they are undermined by the law office search. The crime/fraud exception to these privileges can also be used by law enforcement, sometimes in tandem with the law office search, to destroy confidentiality. The effect of a broken privilege on our adversary system is a further shift of power to the prosecution, disserving the search for the truth.

   1. Attorney-Client Confidentiality

      The common law attorney-client privilege is the foundation of the attorney-client relationship and a bedrock of "our government of laws and not of men."(7) Maintenance of confidentiality encourages free communication between attorney and client, thereby allowing the attorney to best advise the client as to her legal rights. To emphasize the importance of this concept, ethics rules make the attorney's obligation to maintain the secrecy of communications with her client a professional mandate.(8) Without this duty, client communications might have to be transmitted to the adversary,(9) which, especially in a criminal situation, would undermine a client's Sixth Amendment right to a fair trial and assistance of counsel as well as her Fifth Amendment rights to due process and against self-incrimination.(10) To uphold and promote the policies behind this privilege, the maximum degree of predictability as to its integrity should be assured.

      The work-product doctrine is a related concept arising out of similar policy interests and provides a safe haven for attorneys to prepare for litigation or trial without disclosure of their efforts to their adversaries.(11) Its goal is to ensure the privacy of the attorney from opposing parties and counsel so as to promote the best representation for the client. Items such as written witness statements may be discoverable upon a showing of need, but the lawyer's mental impressions require an extraordinary showing of necessity.(12) Neither the attorney-client nor work-product privileges are absolute.

      These privileges serve justice by enabling attorneys to guide laypersons through the bewildering thicket of the law. The attorney-client relationship also facilitates the truth-finding process as expressed in our adversary system by encouraging full disclosure from the client.(13) This confidentiality is of paramount importance because the need for independent advocates is built into our system. Forced disclosure of confidential materials usurps the role of the defense lawyer and places him under the control of the prosecutor. Finally, the relationship promotes individuals' interests in privacy, dignity, autonomy, and protection. Faith that the system will work as forecast is what keeps the legal system from breaking down. A raid on confidential files is the equivalent of changing the rules in mid-game; it departs from the settled expectations upon which our legal system is founded and should be guarded against on fairness grounds alone.

      Law office searches threaten these privileges in several ways. The possibility of seizure of privileged documents has a general demoralizing effect on the client's faith in the confidentiality of information entrusted to the lawyer. While nonprivileged documents do not become privileged simply by transferring them to an attorney,(14) the search, no matter how carefully particularized, is likely to involve rummaging through many documents that are privileged or simply unconnected to the subject of the warrant. The chilling effect of law office raids on client communication and trial preparation is incalculable.(15) The client will hold back knowledge and records and the attorney will not elicit or record certain information if it might end up being viewed by an agent of the government.(16) Making work-product available to the adversary might also interfere with the effectiveness of counsel in defending the client by forcing a prejudicial change in litigation strategy. A legal system which cannot assure confidentiality will not encourage full disclosure of information and thus the entire attorney-client relationship will be soured.

      The rummaging effect of a search of client files impairs the attorney's ability to represent his client.(17) Moreover, the stigma of a search in addition to the seizure of client files may harm the...