When the Police Come to Your Office Door

Last week the Law Society of Upper Canada issued Guidelines for Law Office Searches.

Such searches are rare but when they do occur, lawyers must realize that they have certain duties and obligations to protect solicitor-client privilege, which is a fundamental right belonging to the client. The Supreme Court of Canada has held that the Criminal Code procedures governing law office searches were unconstitutional. So when a search occurs, lawyers are advised to consult the Guidelines, which are intended to assist them in protecting the common law solicitor-client privilege of their clients and which also provide best practices and general advice for dealing with particular situations.

Here are the highlights:

WHEN THE POLICE ARRIVE AT A LAW OFFICE
Inspect the search warrant
• Ensure that the law office is identified as the place to be searched,
• Ensure that the date the Police have attended at the law office is the date authorized,
• Ensure that the documents sought are identified,
• Ensure that the offence under investigation is identified,
• Ensure that the requisite judicial officer has signed and dated it,
• If there are deficiencies on the face of the warrant, point them out to the Police and assert that the Police should obtain a proper warrant, and
Do not obstruct the Police, even if you believe the search warrant or its manner of execution to be invalid.
Assert Privilege over all documents to be seized under the search warrant.
Is a Referee required?
Where the Lawyer may be a target of the investigation, if the Lawyer is in a conflict of interest and where there is no Lawyer present, this should be raised with the Police and either the Police or the Lawyer should make an application to the Court for the appointment of a Referee.
Is an Independent Forensic Computer Examiner required?
If the documents sought are on a computer or other electronic device/media, the assistance of a Court appointed Independent Forensic Computer Examiner may be required.
Do I need a Lawyer?
You are the only one who can answer that question. However, you can contact a Lawyer and you may find it helpful to speak with a Lawyer.
Lawyers should contact the Law Society at 416-947-3300 and ask to speak to Senior Counsel to
the Director of Professional Regulation for assistance when faced with a law office search

Next steps to be taken by the Referee or the non-conflicted Lawyer
• Keep notes of participants, contacts, happenings and timing,
• Identify and assert privilege with respect to all documents,
• Offer to, or if requested by the Police, locate the documents and, where practicable, make and keep copies of them,
• Comply with the terms of the search warrant and give only what is demanded by the warrant,
• Retain copies of all documents, to the extent that it is possible, time permitting,
• Offer to, or if requested by the Police, seal the documents in packages marked for identification and
initialed by you and the Police; taking care to ensure that the Police do not see the documents or any client
names,
• Ensure that the sealed packages are delivered to the custody of the Court or an independent third party as designated by the Court in accordance with the Court order, and
• Make reasonable efforts to contact the Clients whose documents are subject to seizure to advise what is happening and advise that they may wish to obtain independent legal advice.
The Search Warrant has been executed – Next Steps
If necessary initiate or respond to applications before the Court that may include applications for,
• An order to unseal and access the sealed packages,
• The appointment of a Referee or an Independent Forensic Computer Examiner,
• The determination of objections to the search warrant or its manner of execution,
• The determination of issues of solicitor-client privilege,
• Further searches such as a comprehensive electronic search of an electronic device/media or a forensic image, and
• Direction with respect to the notification of the Clients of the search for and seizure of solicitor-client
privileged documents.

The law is well described here and the entire report to Paul Schabas’ committee is here.