Recommended terms for law office search warrants
Warrants must include processes that will preserve privilege
Fortunately, the authorization of a warrant to search a law office occurs only infrequently.
However, it is possible that a criminal investigation of a lawyer’s client or client matter or, in rare and unfortunate cases, a matter in which a lawyer has direct involvement, will result in a law office search warrant.
When a lawyer is faced with the presence of the police or investigators at the office, it is not always easy to 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. The lawyer must ensure that the warrant authorizing the search of the law office includes processes that will preserve that privilege.
Some years ago, the Supreme Court of Canada struck down the provisions in the Criminal Code that purportedly dealt with the protection of privilege during the search of a law office.
Since then, it has become evident that providing some direction for recommended terms of a warrant to search law offices would assist the profession and the investigating authorities, particularly when the lawyer is the target of the search or closely associated with the target, or where the lawyer’s whereabouts are unknown at the time the search is to be executed.
To this end, the Associate Chief Justice asked the Law Society, in consultation with other interested parties, to develop guidelines for the terms contained in and procedures associated with the execution of warrants to search a law office in order to protect solicitor client privilege. The resulting guidelines represent the combined efforts of the Law Society, the Public Prosecution Service of Canada, the Ministry of Justice – Criminal Justice Branch, the Vancouver Police Department and the BC Association of Chiefs of Police. The guidelines were forwarded to the Associate Chief Justice and no reservations were registered.
The intent of the guidelines 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.
Documents identified and seized by the referee are to be delivered to the custody of the Supreme Court. The guidelines contain procedures for the notification of clients whose privilege may be affected, including information about how privilege claims can be addressed before the Court. There are also provisions in the guidelines for when the search involves the seizure of computers and electronic records.
The guidelines can be downloaded from the Law Society website at Lawyers > Law office search warrants.