Criminal defense lawyer's office searched in New Jersey
In the third search of a criminal defense lawyer's office since spring, 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.
A federal magistrate signed the search warrant, which allowed the seizure of all computer hardware and electronic storage devices from the defense attorney's office, and the attorney's request for a preliminary injunction was denied by U.S. District Judge Robert Kugler. If the defense attorney was a valid target of the investigation - the FBI's affidavit did state "Manno was using computers in furtherance of alleged criminal activity" - then a focused search for specific evidence of crime may be justified, but an all inclusive sweep of all of the attorney's files without regard for attorney-client privilege cannot be justified.
West Virginia defense attorney John Bryan puts this practice into perspective:
It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help.
The judge in this case apparently has approved the review of materials by a "taint team" in order to determine what material is covered by the warrant before it gets to the prosecutor. Last I checked, attorney-client privilege did not apply only to prosecutors - with limited exceptions it applies to everyone who is not attorney or client. 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. To see these kind of tactics sanctioned by judges makes it that much worse.
