Knock knock! State Bar special master at your door [MCLE]

Legal Malpractice

March 2017

By Jonathan Goldstein

Imagine as you begin your morning routine of responding to emails, returning phone calls, preparing for an afternoon appearance on court-call, you hear a loud series of knocks on the front door and shouting: "police...police...open up!"

Before you have a chance to push back your chair and get out from behind your desk, several police officers rush into your office. They secure the area and tell everyone to put their hands up where they can see them. These officers are not there as prospective clients, but instead are armed with a court issued search warrant for your offices, which may in some cases even extend to your vehicle and person.

Then out of nowhere an attorney appears and introduces him or herself to you as the court-appointed special master from the State Bar. For many attorneys, until this individual appears in their office they have only heard the term special master in the context of general or complex civil litigation matters.

Since 1979, a select group of hand-picked individuals from the State Bar's Special Master's List have been responsible for carrying out search and seizures of documentary and other evidence in possession of or under the control of attorneys, physicians, psychotherapists and clergy members. This dedicated group of volunteer attorneys are appointed by the courts from a list maintained by the State Bar pursuant to Penal Code Section 1524. They are vested with immunity when acting in their role as a public employee of the government entity that caused the search warrant to be issued in the first instance. Their participation in this program is designed to balance the competing interests of protecting professionals and their client's confidentiality while simultaneously providing a mechanism by which prosecutors may search and obtain evidence of suspected criminal activity.

Each prospective special master's background and qualifications are heavily scrutinized by the State Bar to ensure that they are able to perform the tasks required by the courts. These attorneys must meet certain minimum requirements for service, including but not limited to: (1) being members of the State Bar for at least five years; (2) not being involved in the criminal law field to avoid potential conflicts of interest [this includes public defenders, district attorneys, attorneys employed by the attorney general's office, certified criminal law specialists, attorneys who are employees of law enforcement agencies, and attorneys who devote a substantial amount of time to criminal law practice]; (3) not being currently under investigation for an alleged violation of the State Bar's Rules of Professional Conduct; and (4) not having been subject to any discipline during the 10 years prior to the date of their application for service.

What attorneys who are visited by special masters don't often realize is that even before the first ever knock on the attorney's door, there has been a great deal of preparation behind the scenes. The attorneys are completely unaware of not only where, when and how the police are going to execute the search warrant, but they also are not made aware of the existence of the warrant before execution of the search by the special master. Immediately prior to executing searches special masters will often meet with their police or district attorney investigator counterparts on the strike team for briefing and to review the parameters of the search warrant. These briefings usually take place immediately prior to the search at a designated and previously undisclosed location close to the vicinity of the suspect attorneys' offices.

During the search, the special master is charged with securing all files, documents or property described in the search warrant located on the premises and in some circumstances on the attorney's person or in the attorney's vehicle. In one particular instance, an attorney whose offices were being searched had an entire separate storage unit adjacent to his office building where he stored massive amounts of files. The special masters are also in charge of collecting, categorizing, and itemizing on inventory lists for the court's review all files, documents or other property seized. Not only may laptops and desktop computers be seized, but also flash and external hard-drives as well if the files, documents or other property described in the search warrant exist or are likely to be found on those items.

Upon completion of the search those files, documents and other items that the special master designates as containing or potentially containing attorney-client privileged information or consisting of attorney work product are separately sealed for review only by the court. At the conclusion of the search, all seized items are sealed for delivery to the court, a notice of hearing is provided to the attorney as to where they can appear to seek the return of these items, and a hearing is held within a short period of time thereafter on the matter.

In the event that you or a colleague becomes the unfortunate subject of a special master search there is still actions you can take to ensure yourself with the best possible outcome or defenses to be used later in the action: (1) be truthful and cooperate with the special master; (2) be respectful to law enforcement; (3) if you do not know where a particular item is located in the office, ask others who work in the office for assistance; (4) voluntarily produce the items requested under the search warrant to the special master instead of requiring him or her to spend unnecessary time searching throughout the premises for those items; (5) request at the conclusion of the search a copy of the search warrant if one has not already been provided to you by either the police or the special master; (6) follow-up with the court regarding the status of your items; (7) attend the hearing either in pro per or with retained counsel to request the return of those items or at the very least copies of those items; and (8) take any further action as necessary.

Now returning to the scenario discussed at the beginning of this article, if the attorney merely follows the seven steps above then that attorney will be able to get through this difficult experience as best as possible and return to complete his workday rather than risk overreacting and being arrested by the police for actions incidental to the search.

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