At the recent ABA White Collar Crime Institute in sunny Miami, I was lucky enough to be on an excellent panel about search warrants. The panel was notable because it had a solid cast of speakers and was in a room the size of my entire house. About 150 hardy souls took a break from the cocktail party circuit to hear what we had to say.
The theme of the panel was that even though our clients may wear suits and work in fancy offices, they are not immune from the government’s use of investigative techniques that used to be reserved for street crimes. Techniques such as, guess what? Search warrants.
When the government executes a search warrant on your client, there are the immediate concerns (how should the client react? what should the client tell its employees?) and then there are the long term concerns such as taking every step possible to protect the attorney client privilege.
The government may seize privileged documents when it executes the search warrant. In fact, if you are a big company, the government will seize them. Trust me, the FBI agents executing the warrant will not carefully examine every memo to see if is a communication between an attorney and client for the purpose of obtaining legal advice.
So, it is the responsibility of inside or outside counsel to take steps to protect the privilege. For the ABA conference, I wrote what I hope is a helpful article describing the seven key steps you can take to protect the privilege for your client.
Much of the article deals with how to challenge the government’s use of “taint teams.” If you aren’t familiar with them, you should be. The government may be the one who decides whether your client’s documents are privileged or not.
If that doesn’t wake you up in the middle of the night in a cold sweat, then you aren’t a criminal defense lawyer.
Sara, your article presented in Florida in March (when we were freezing up here) was intriguing and the 7 steps organized and interesting. Hope I am never in a spot where the government comes with a warrant! If so I’ll give you a call. G.Reed 5/14/14
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