July 11, 2018
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).
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship.You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Ronald H. Levine is Chair of Post & Schell's Internal Investigations & White Collar Defense Group and former Criminal Division Chief at the U.S. Attorney’s Office in Philadelphia. He counsels and defends corporations, as well as directors, executives, professionals and others, confronting potential allegations of fraud or other misconduct at all stages of the government enforcement cycle. Learn More.