Fighting the Seizure of Attorney-Client Communications
The government’s seizure of attorney-client communications, a headline event when it involves the President’s lawyer Michael Cohen, actually is a recurrent problem in white-collar criminal investigations due to the convergence of several trends.
- First, the genteel days, when a subpoena sufficed and search warrants were a last recourse absent credible fears of document destruction or flight, are over. Nowadays, many prosecutors see the corporate search warrant as a way to gain immediate access to documents, eliminate tiresome negotiations with defense counsel about the scope and timing of production, and gain the leverage of sending a “shot across the bow” of the corporation.
- Second, as corporations expand their in-house legal capacity and bring more matters in-house, and as in-house counsel integrate themselves more fully into business operations, the sheer quantity of legal messages within a corporation has increased.
- Third, with the advent of electronically stored information and warrant-authorized wholesale imaging of employee laptops, cell phones, and other devices, it is much more likely that attorney-client communications will be sprinkled among the seized texts and inboxes of many non-lawyer corporate employees.
In short, government seizure of attorney-client communications is not cabined to searches of law firms or even to searches of an in-house counsel’s office. It is a potential issue in just about every corporate search.
In the July 2018 issue of Law Journal Newsletter’s Business Crimes Bulletin, I discuss Department of Justice policies and regulations concerning attorney searches and explore ways to seize the initiative when such a search occurs. (The Seizure of Attorney-Client Communications: Fighting Back).
