How to act when an investigator seizes items containing attorney–client privilege

Attorney–client privilege is one of the key instruments for protecting the client’s rights and safeguarding the independence of legal practice. It covers not only the content of consultations and legal positions but also documents, electronic media, correspondence and working files containing information about the client, their cases and defence strategy. When an investigator, during a search or other procedural action, attempts to seize such items, this becomes not only a practical challenge but also a test of how real the guarantees of attorney–client privilege are.
Legal framework and the essence of attorney–client privilege
At the heart of the problem lies the balance between the interests of criminal proceedings and the protection of the client’s rights. Legislation on the legal profession generally prohibits demanding disclosure of privileged information from a lawyer and establishes a special regime for accessing the lawyer’s premises, documents and data carriers. In criminal proceedings, a court warrant is normally required for a search of a lawyer’s home or office, as well as for temporary access to items and documents, and the court must separately assess the risks of interfering with attorney–client privilege.
Privilege covers not only “finished” documents such as engagement agreements or powers of attorney, but also draft notes, files on a laptop, correspondence with the client, recordings of phone calls and internal case‑analysis materials. If such items are seized by an investigator without proper legal grounds or in breach of procedure, this creates a risk that confidential information will be used against the client, that the defence strategy will be exposed and that the rights of other clients, whose information may be stored in the same place, will be violated.
Advance preparation: organisational and technical measures
The response to investigative actions starts long before any search. Law firms and practices should build internal procedures in a way that minimises the risk of unauthorised access to privileged information. This includes, in particular:
– clearly separating files by clients and cases;
– using encryption and secure communication channels;
– restricting physical access to archives and electronic media;
– keeping access logs for case materials;
– adopting internal instructions for staff on how to act when law‑enforcement officers arrive.
Advance preparation also involves developing a crisis plan: who is responsible for communicating with the investigator, who records procedural actions and how colleagues or representatives of bar self‑governance bodies are to be called in. This reduces chaos at critical moments and allows the lawyer to focus on protecting clients’ rights rather than improvising.
Checking powers and the court warrant
When an investigator arrives with a search order or temporary‑access warrant, the first step is to carefully examine the documents. It is necessary to determine:
– whether the premises are indeed those of a lawyer (office, home);
– whether there is a court order authorising the search or access;
– whether that order expressly allows seizure of the lawyer’s documents/media;
– whether the order is limited to particular categories of documents, periods or cases.
If the order is generic, with no reference to the person’s status as a lawyer and no clear description of what is being sought, the lawyer has every right to object and insist that any actions involving items containing privileged information are inadmissible. Such objections must be recorded in the official protocol, and the lawyer should demand that a full account of their position be included in the record of the procedural action.
Involving bar‑association representatives
An important element of protection is the participation of representatives of bar‑self governance bodies (bar councils, disciplinary commissions, etc.) during searches of lawyers’ premises. Their presence helps not only to document violations but also to influence the course of the search by reminding the investigator of the statutory restrictions related to attorney–client privilege.
In practice this means that, at the first opportunity, the relevant bar authority should be notified of the search or seizure. Even if its representative does not manage to arrive before the action is completed, the very fact of the notification and a subsequent report may serve as a basis for disciplinary or criminal assessment of the investigator’s conduct.
Separating privileged material from other items
During a search or seizure, the lawyer should insist on clearly distinguishing between items that contain privileged information and other objects. For example, if the search is conducted in connection with a particular criminal case, while the office stores dozens of files, it is reasonable and lawful to demand that the investigator not access materials unrelated to that case.
A practical tool is to propose an inventory of documents and media with a description of which case they belong to, then seal those that may contain privileged information about other clients and submit them to a court or an independent body to decide whether access is permissible. This at least postpones the investigator’s direct access and buys time for a legal response.
Challenging unlawful seizure and use of evidence
If, despite the lawyer’s objections, the investigator seizes items containing privileged information, the next level of protection is procedural challenge. This includes:
– complaints about the investigator’s actions to the investigating judge;
– motions to declare the actions unlawful and to return the seized items;
– applications to have evidence obtained in breach of privilege declared inadmissible.
Later, at trial, the defence can argue that any information derived from such seizure constitutes inadmissible evidence and cannot be used against the client. It is crucial that all objections, statements and motions be recorded immediately, as proving violations after the fact is much more difficult.
Liability for breaching attorney–client privilege
Breaches of guarantees for the legal profession, including unlawful seizure of items containing privileged information, may entail not only procedural but also criminal liability for officials. The lawyer should assess whether there are grounds to file a criminal complaint for abuse of power, interference with the work of the defence or unlawful access to confidential information.
At the same time, it is strategically important not to turn every conflict with an investigator into an all‑out “war”, but to build the defence with an eye on how these actions affect the client’s main case. Sometimes it is more effective to focus on securing inadmissibility of the evidence and the return of seized items than on parallel criminal proceedings against investigators, which may drag on for years.
Practical recommendations for lawyers
Based on practice, several core recommendations can be made:
– organise document management and electronic databases in advance so that materials of a particular case can quickly be separated and others protected;
– train staff (assistants, administrators) in basic rules of conduct when law‑enforcement officers appear;
– always read court orders carefully and ensure all objections are recorded in the protocol;
– involve bar‑self governance bodies at an early stage;
– systematically document all cases of privilege violations for future complaints and procedural steps.
Attorney–client privilege is not an abstract guarantee but a practical tool for protecting clients. Its effectiveness depends on how consistently lawyers are prepared to defend their rights and use the procedural mechanisms available.
If you have any questions or issues related to the seizure of items containing privileged information, searches of lawyers’ offices or the protection of confidential client data, please contact our lawyers for individual advice and professional legal assistance.
Author: Ihor Yasko, Managing Partner of JSC “Law Firm WINNER”, PhD in Law.