Law office search warrants
Guidelines: Recommended terms for law office search warrants
"Recommended terms for law office search warrants," Summer 2013 Benchers' Bulletin
Very rarely, a criminal investigation of a lawyer or a lawyer’s client will result in the authorization of a warrant to search a law office. In such a case, a lawyer must remember that professional duties must be observed.
In particular, a lawyer’s obligation to protect the privilege and confidence of clients persists, even if the lawyer is the target of the search. Consequently, it is important to ensure that the warrant authorizing the search of the law office includes processes that will preserve that privilege.
At the request of the Associate Chief Justice, the Law Society, in consultation with the Public Prosecution Service of Canada, the Ministry of Justice – Criminal Justice Branch and the BC Association of the Chiefs of Police, has developed guidelines for the terms contained in and procedures associated with the execution of warrants to search a law office. The intent is to clearly set out the steps that need to be in place in advance of the search to ensure the privilege of clients is protected during the search.
The guidelines contemplate the appointment of a “referee” (a lawyer who will have the same or similar qualifications as those necessary to be appointed as a special prosecutor) whose responsibilities are to:
- under the direction of the officer in charge of the search, search for and seize documents, including electronic documents and images of data stored on computer equipment, and computer equipment itself, that are authorized to be seized by the warrant, in the manner authorized by the warrant;
- maintain the continuity and the confidentiality of the documents in accordance with the warrant; and
- examine and handle the documents in accordance with the procedures established in the warrant.