A few days ago, I posted about an extremely troubling trend emerging whereby lawyer’s offices are being searched as part of a criminal investigation of their clients. Since then, Scott Greenfield at Simple Justice picked up the conversation with this post. He first noted mine and Bobby Frederick’s concerns, stating that:

My ilk will go on auto-pilot and pound the keyboard exclaiming how these searches, where the government comes in, seizes everything in sight and sorts it all out later when they can examine every file at its leisure. This blunderbuss approach has been condemned by South Caccalacca criminal defense lawyer Bobby Frederick and West Virginia criminal defense lawyer John Bryan, and their concerns are well-founded.

But he also argued that “when a lawyer gets too close to his clients, such that he becomes a party to their enterprise,” there is a legitimate reason to search for evidence. And in these situations, Greenfield argues that a mutually agreed upon “Special Master” should be appointed to conduct the first level of scrutiny. It seems to me that this is not a bad idea.

But it will never happen – not as long as you have prosecutors who are willing to go between judges to get their warrant, and not as long as you have gullible or malicious judges who grant the warrant without conferring with the first judge. And let’s not forget this is only legitimate in the scenarios Greenfield points out: where the lawyer has helped the client engage in wrongdoing. This absolutely should not apply in a Texas murder case where the prosecutor is merely fishing for evidence with no evidence of wrongdoing by the attorney.

Bobby Frederick, of the South Carolina Criminal Defense Blog, also noted that now “a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer’s office, including the files of clients who were not targets of the search.”

Frederick also cited my game-leveling dream scenario where defense attorneys could do the same thing, and concluded that:

This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process.

And I think that is something we all agree on.

– John H. Bryan, West Virginia Attorney