Lead Opinion
This аppeal arises from a petition brought under G. L. c. 211, § 3, challenging a Superior Court judge’s order approving the issuance of a grand jury subpoena duces tecum that compels a law firm to produce a cellular telephone. The single justice reserved and reported the matter to this court, and our analysis is confined to the limited record before us.
The Commonwealth contends that the telephone belonged to John Doe,
1. Background. The law firm began representing Doe in April, 2013. According to the Commonwealth, in June, 2013, Doe transferred the telephone to the law firm in connection with its provision of legal services to him.
After Doe filed his G. L. c. 211, § 3, petition, the law firm filed a motion to intervene. In response to a request by the single justice, the law firm submitted an affidavit indicating that, if the petition were dismissed, and if the Commonwealth served the subpoena on the law firm, it would refuse to comply, subjecting itself to a finding of contempt. Based on this affidavit, the single justice reserved and reported the matter to this court.
2. Discussion, a. Standard of review. While we review a trial judge’s decisions on discovery matters for an abuse of discretion, our review of mixed questions of fact and law, including questions of the validity of an assertion of the privilege against self-incrimination, is de nova. McCarthy v. Slade Assocs., Inc., 463 Mass 181, 190 (2012) (citation omitted). Our review of a decision involving the attorney-client privilege is likewise de nova. Clair v. Clair,
b. The right against self-incrimination, the act of production doctrine, and the attorney-client privilege. We conclude that the subpoena was issued improperly. This conclusion derives from the application of three well-established principles: the privilege against self-incrimination, the act of production doctrine, and the attorney-client privilege.
The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Article 12 of the Massachusetts Declaration of Rights similarly provides that “[n]o subject shall ... be compelled to accuse, or furnish evidence against himself.”
Indeed, the protection against the implicit self-incrimination involved in compelled production stands on even firmer ground under art. 12 than it does under the Fifth Amendment. Unlike the Fifth Amendment, art. 12 specifically prohibits compelling a defendant to “furnish evidence against himself.” We have long recognized, based on the “difference in the phraseology between the Massachusetts Constitution and the Fifth Amendment,” Opinion of the Justices,
In Fisher v. United States,
“Under the facts and circumstances presented” in this case, the motion judge was “satisfied that had a subpoena been served on [Doe] personally, he would be able to assert a privilege against production of his [telephone based on the Fifth Amendment and/or art. 12.” In its brief, the Commonwealth acknowledges that Doe could not be compelled to produce the telephone had he retained possession of it. Nonetheless, the Commonwealth offers several arguments that would avoid the inevitable implications of that concession under the United States Supreme Court’s decision in Fisher. In essence, these arguments seek to sever the chain that links the determination that Doe could not be compelled to produce the telephone, had he retained possession of it, with the conclusion that the law firm likewisе cannot be compelled to produce the telephone, after purportedly receiving the telephone from Doe for the purpose of rendering legal advice.
The Commonwealth contends, for instance, that although Doe’s act of producing the telephone in response to the subpoena would be testimonial and incriminating under the Fifth Amendment and art. 12, the law firm’s act of producing the telephone in response to a subpoena would be “trivial and non-testimonial.” That argument rests on a mistaken understanding of the Fisher rule. The Fisher Court made clear that its analysis hinged not on the law firm’s act of producing the telephone but, rather, on the client’s hypothetical act of producing evidence in response to a subpoena; where materials were transferred to the attorney “for the purpose of obtaining legal advice,” and where “the client himself would be privileged [f]rom production” of the materials had he retained them, “the attorney having possession of the document is not bound to produce.” Fisher,
The focus on whether Doe would be protected against compelled production had he maintained possession of the materials reflects the policy underlying the Fisher rule. “Fisher's rule arose
The policy underlying the Fisher rule reveals the inadequacy of the Commonwealth’s suggestion that “the firm could appoint an alternate third party designee to logistically present the [tele-] phone to the grand jury.” The Fisher rule serves to protect open communication between attorneys and clients by ensuring that a client does not sacrifice the protection that evidence otherwise would receive against compelled production by transferring it to an attorney. The damage to the attorney-client relationship would result whenever previously unobtainable materials become obtainable as a result of being transferred to the attorney, regardless of whether the materials were handed over by a third-party designee or by the law firm itself.
The Commonwealth cites In re Grand Jury Subpoena (Mr. S.),
Finally, the Commonwealth seeks to distinguish between the telephone as “physical evidence” and the concededly documentary materials that the telephone contains. The Commonwealth insists that it “only sought a grand jury subpoena for production of the physical item of evidence,” and asserts that, once it acquires the telephone, “it will seek a search warrant to authorize a forensic examination of the device.” But if we were to embrace this distinction, the result would empty the Fisher rule and the act of production doctrine of any effect: the Commоnwealth could compel the production of any document based on the assertion that the subpoena was directed merely at the document as a “physical item” — an amalgam of paper, binding, and ink — and that it would get a separate search warrant before actually opening the document and reading the pages.
The extrajurisdictional case law that the Commonwealth cites in support of its distinction between the telephone as a “physical item” and the telephone’s contents almost exclusively involves items — typically either the instrumentalities or proceeds of crime — whose evidentiary value to the prosecution had nothing to do with their communicative contents. See In re Ryder,
By contrast, the Commonwealth concedes that many of the materials contained on a cellular telephone are documentary. As
Additionally, the Commonwealth notes that Mass. R. Prof. C. 3.4 (a),
Because the Commonwealth does not contest that Doe’s privilege against self-incrimination would prohibit the Commonwealth from compelling Doe to produce the telephone had he retained it, and because under Fisher the law firm cannot be compelled to produce materials transferred to the law firm by a client for the provision of legal advice if the client could not have been compelled to produce them, we conclude on the record before us that the attorney-client privilege protects against compelled production of the telephone.
c. Superior Court judge’s decision. Although the judge approved the issuance of the subpoena, he did so on the basis of a
The judge observed that, had Doe not transfеrred the telephone to his attorney, nothing would prevent the police from finding and seizing the telephone under a properly issued search warrant. The judge noted, however, that, because Doe had transferred the telephone to his lawyers, there was a “fly in the ointment” of the search warrant approach. General Laws c. 276, § 1, a general provision governing the issuance of search warrants, includes in its final paragraph a restriction on the issuance of search warrants for evidence in the possession of lawyers, psychotherapists, and clergymen. It provides, in part, that “no search warrant shall issue for any documentary evidence in the possession of a lawyer . . . unless ... a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue,” or unless “there is probable cause to believe that the lawyer ... in possession of such documentary evidence has committed, is committing, or is about to commit a crime.”
The judge thus confronted a situation in which the Fisher rule and G. L. c. 276, § 1, apрeared, in combination, to place the telephone beyond the reach of law enforcement. Concluding that G. L. c. 276, § 1, “cannot... be used as a shield to protect clearly inculpatory evidence . . . from the reach of the law,” the judge determined that a subpoena could issue compelling the law firm to turn over the telephone, but only upon a showing of the probable cause that ordinarily would be sufficient, were it not for G. L. c. 276, § 1, to acquire a warrant to search the law firm’s offices and seize the telephone. In essence, the judge crafted a new rule through an aggregation of the procedures that would be permitted were it not for the Fisher rule and G. L. c. 276, § 1. In the absence of the Fisher rule, the law firm could be compelled to produce the telephone under subpoena upon the prosecution’s satisfying the requirements of Mass. R. Prof. C. 3.8 (f). In the absence of G. L. c. 276, § 1, the police could acquire a warrant to
This approach, however, contradicts both case law and the relevant statute. The judge’s approach is built on conflating search warrants and subpoenas. Yet the act of production doctrine’s underlying premise is that being compelled to produce evidence in response to a subpoena may involve a forced incriminating statement that would not occur if law enforcement simply found the evidence while executing a search. See, e.g., Commonwealth v. Hughes,
Because the act of production doctrine derives from the privilege against self-incrimination, moreover, it may not be set aside based on a showing of probable cause. We have emphasized the distinction between the protection against unreasоnable searches afforded by the Fourth Amendment and the more absolute protection afforded by the privilege against self-incrimination. “[Ujnlike the more limited protections of the Fourth Amendment prohibition against searches and seizures that are ‘unreasonable,’ ” Blaisdell v. Commonwealth,
Under Fisher, the protection that a client enjoys under the attorney-client privilege is coterminous with the protection that a client would have enjoyed under the privilege against self-incrimination. Consequently, just as the right against self-incrimination may not be set aside based on judicial speculation about
The judge based his decision on a provision in G. L. c. 276, § 1, that states, “Nothing in this section shall be construed to abrogate, impair, or limit powers of search and seizure granted under other provisions of the General Laws or under the common law.” Again, however, this conclusion rests on conflating subpoenas with search warrants, and the prosecution’s ability to compel production of evidence with the prosecution’s power merely to look for it. The Commonwealth did not seek to obtain the telephone through its “powers of search and seizure.” Instead, it hаs sought to obtain the telephone via a subpoena. And the basis upon which we have decided that the Commonwealth cannot obtain the telephone via subpoena has nothing to do with G. L. c. 276, § 1, or any other limitation on the Commonwealth’s “powers of search and seizure.” Instead, our holding is based on our determination that the compelled production of the telephone via a subpoena directed at Doe would violate the act of production doctrine, and consequently that the compelled production of the telephone via a subpoena directed at the law firm would violate the attorney-client privilege under Fisher. Because the Commonwealth here sought, and the judge allowed, a subpoena compelling production of the telephone, the provision of G. L. c. 276, § 1, relating to “powers of search and seizure” has no bearing on the analysis.
d. Availability of a search warrant under G. L. c. 276, § 1. Although the Commonwealth has consistently sought to acquire the telephone via a subpoena, it does indicate that, if we decline to authorize the issuance of a subpoena compelling the law firm to produce the telephone, it “will seek a search warrant to seize the evidence from the law firm.” Even if the Commonwealth were to pursue that approach, however, it would not gain any support from the provision of G. L. c. 276, § 1, preserving “powers of search and seizure.” That provision precedes, rather than follows, the paragraph prohibiting searches of documentary evidence in
The Commonwealth offers two reasons why a search for the telephone would not violate the restrictions that G. L. c. 276, § 1, imposes on searches of law offices. First, the Commonwealth asserts that the search and seizure it contemplates is not for any “documentary evidence,” and thus falls outside the scope of the statute. Second, the Commonwealth contends that, even if the statute did apply to the contemplated search for the telephone, the search falls within the statute’s exceptions for situations where “documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” G. L. c. 276, § 1. We address each in turn.
The Commonwealth’s contention that a search for the cellular telephone would not constitute a search for “documentary evidence” relies upon the same misplaced distinction between the telephone as a “physical item” and the telephone’s undeniably documentary contents that the Commonwealth advances in arguing that the Fisher rule does not apply, and the distinction fails here for similar reasons. For instance, while “files” are specifically identified as “documentary evidence” in the statute, the statute itself does not refer to file cabinets. If we were to accept the Commonwealth’s distinction between the telephone as a “physical item” and the documentary materials that the telephone contains, then the Commonwealth also could acquire a warrant to search an attorney’s office and seize a file cabinet, including the files it contains, as a “physical item.” The Commonwealth conceded in its motion for issuance of a subpoena that the evidentiary value of the telephone for purposes of the investigation derives from the “documentary” materials contained on the telephone, rather than from any aspect of the telephone as a “physical item.” Under these circumstances, it is clear that a search for the telephone is a search for “documentary evidence” within the meaning of G. L. c. 276, § 1.
ii. The Commonwealth next asserts that a search warrant may issue in this case because “there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” For several reasons, we are unconvinced by the Commonwealth’s argument that, “in the event that the Commonwealth cannot otherwise obtain the item, the evidence will effectively be ‘secreted’ and ‘lost.’ ”
The interpretation offered by the Commonwealth diverges from any accepted definition of “secreted” or “lost.” An item is “secreted” when it is “hid[den],” “conceal[ed],” or “removefd] from observation or the knowledge of others”; an item is “lost” when
The interpretation offered by the Commonwealth, moreover, ignores the statute’s requirement for a factual showing. To obtain a search warrant for a lawyer’s office, the prosecutor must make a showing of “probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue,” or that “there is probable cause to believe that the lawyer ... in possession of such documentary evidence has committed, is committing, or is about to commit a crime.” G. L. c. 276, § 1. Under the interpretation urged by the Commonwealth, this requirement of a factual showing of probable cause disappears. Instead, whether an item is “secreted” or “lost” becomes a purely legal issue, on which the Commonwealth can prevail simply by showing that the lawyer holding the evidence has invoked a privilege against compelled production.
The Commonwealth’s overarching contention is that the exception applies to any situation where the application of G. L. c. 276, § 1, renders documentary materials whose contents are not themselves privileged unobtainable by law enforcement. Nothing in the language of the exception supports this view, and it gains no support from the legislative history of the act that amended G. L. c. 276, § 1, to add the provision at issue here.
The legislative history indicates that the provision was inserted for two main reasons. First, the provision sought to ensure that “the holder [of material sought by law enforcement] has the opportunity to argue that the material is privileged” before the material is seized, an opportunity unavailable with search warrants because they are “granted ex parte with no notice to the holder of the material.” Memorandum from Patricia A. Boies, Deputy Chief Counsel, Office of Legal Counsel, to then Governor Michael S. Dukakis (Dec. 18, 1986). Just so, here, confronted by a subpoena seeking the telephone, the law firm responded by asserting the attorney-client privilege, as articulated in Fisher. Fisher had been the law for more than a decade when the provision was enacted. Because we presume that the Legislature acts against the backdrop of already-existing law, see Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457
Second, the legislative history indicates that the provision sought to counteract the disruptive effect that police searches could have on “the private, confidential relationships between the professionals covered and their clients, patients, or penitents.” Boies memorandum, supra. In particular, the provision was “designed to protect against the situation in which police executing a search warrant may look through many documents, both privileged and unprivileged, relating to clients who are not even the subject of the documents sought, and then must make on-the-spot decisions as to what should or should not be seized.” 1986 House Doc. 6574 (Letter from then Governor Michael S. Dukakis to the Senate and House of Representatives [Dec. 24, 1986]). The risk that law enforcement will inadvertеntly see or seize private, confidential documents related to uninvolved third-parties exists whenever law enforcement executes a search, regardless of whether the documents that law enforcement is looking for are privileged.
Accordingly, we reject the Commonwealth’s contention that documentary evidence is “secreted” whenever an attorney invokes the Fisher rule to resist its compelled production. Instead, we conclude that the exception applies, as it says, only where “there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” As indicated, this is a fact-specific determination. Were the Commonwealth to seek a search warrant on the same record that was before the Superior Court judge in March, 2014, when the Commonwealth moved for judicial approval for a subpoena, it would not satisfy the “secreted” exception. At that time, the Commonwealth agreed that the telephone had been given to the law firm for purposes of acquiring legal advice. Nothing in the record suggests that in March, 2014, the law firm was no longer engaged in providing the requested advice. The privileged retention of client documents in such circumstances cannot be said to be the secretion of those documents. Hence, in this case, on this record, there is no evidence suggesting secretion of the documents. We leave for another day the question whether and under what circumstances the prolonged retention by counsel of client documents unprotected or no longer protected by any privilege might qualify as secreting under the meaning of G. L. c. 276, § 1.
First, G. L. c. 276, § 1, only operates to bar the search of an attorney’s offices in a narrow set of circumstances. Thе statute is limited to searching for documentary evidence and would not typically encompass situations where a client seeks to hide the instrumentalities or proceeds of a crime at an attorney’s office. While the telephone at issue here constitutes “documentary evidence” under the statute, the statute also provides explicit exceptions for circumstances where the evidence “will be destroyed, secreted or lost in the event a search warrant does not issue,” or for circumstances where the holder of the evidence “has committed, is committing, or is about to commit a crime.”
Second, it is the act of producing the telephone by the law firm, rather than the telephone itself, that is covered by the attorney-client privilege. The client’s right against compelled production by his or her attorney is not absolute. To fall under the Fisher rule, materials whose contents are not themselves privileged must have been transferred to counsel “for the purpose of obtaining legal advice.” Fisher,
Third, nothing we have said suggests that a lawyer, having received materials whose contents are not themselves privileged for purposes of rendering legal advice, may retain such materials indefinitely, absent a continuing bona fide need and purpose related to the provision of legal advice. Any assessment of whether and, if so, when client materials would cease to be protected by the Fisher rule is, of course, a complex matter, involving factual determinations that will depend on the specific circumstances presented. Because the Commonwealth has never
3. Conclusion. Confining ourselves to the record that was before the Superior Court judge in March, 2014, we conclude that Doe’s attorney-client privilege protects against compelled production of the telephone by the law firm. We remand the matter to the single justice for entry of a judgment allowing Doe’s petition for relief under G. L. c. 211, § 3, ordering the Superior Court to reverse the order approving the issuance of a grand jury subpoena duces tecum, and for such other proceedings as are consistent with this opinion.
So ordered.
Notes
A pseudonym.
The Commonwealth asserts that the judge made a specific factual finding that the cellular telephone exists and is in the possession of the law firm. We discern no such finding in the judge’s decision. In the “Facts” portion of his decision, the judge indicated specifically that “[t]he Commonwealth asserts that on or about June 16, 2013, [Doe] delivered his cell phone to [his] attorneys in connection with their provision of legal services to him.” The factual findings that the Commonwealth identifies involve either the judge’s summary of un
The Commonwealth further contends that, in opposing the Commonwealth’s subpoena for the telephone, the firm has implicitly conceded that it has possession of the device. In other words, the Commonwealth would place the law firm in a “Catch-22”: to assert that the attorney-client privilege protects against compelled production of the telephone, the firm must implicitly disclose the client’s privileged communication that the telephone belongs to him, or at least that it was previously in his possession. We reject this suggestion.
Rule 3.8 (f) of the Massachusetts Rules of Professional Conduct,
“not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless:
“(1) the prosecutor reasonably believes:
“(i) the information sought is not protected from disclosure by any applicable privilege;
“(ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
“(iii) there is no other feasible alternative to obtain the information; and
“(2) the prоsecutor obtains prior judicial approval after an opportunity for adversarial proceeding . . . .”
Doe contends that the process by which the judge determined that the requirements of Mass. R. Prof. C. 3.8 (f) were met, and that the Commonwealth had established probable cause that the telephone contained evidence of a crime and was in the possession of the law firm, violated Mass. R. Prof. C. 3.8 (f) and standards of constitutional due process. Because we conclude that the attorney-client privilege precluded the issuance of a subpoena given the facts of this case, we need not reach this argument.
Notwithstanding the Commonwealth’s contention that extraordinary relief would not be available under G. L. c. 211, § 3, until the law firm disobeys the subpoena, subjecting itself to a contempt order, “[wjhere,” as here, “the single justice has, in [her] discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported.” Martin v. Commonwealth,
The provisions relevant to our discussion appear at the end of G. L. c. 276, § 1, and provide in full:
“Nothing in this section shall bе construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law.
“Notwithstanding the foregoing provisions of this section, no search and seizure without a warrant shall be conducted, and no search warrant shall issue for any documentary evidence in the possession of a lawyer, psychotherapist, or a clergyman, including an accredited Christian Science practitioner, who is known or may reasonably be assumed to have a relationship with any other person which relationship is the subject of a testimonial privilege, unless, in addition to the other requirements of this section, a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue. Nothing in this paragraph shall impair or affect the ability, pursuant to otherwise applicable law, to search or seize without a warrant or to issue a warrant for the search or seizure of any documentary evidence where there is probable cause to believe that the lawyer, psychotherapist, or clergyman in possession of such documentary evidence has committed, is committing, or is about to commit a crime. For purposes of this paragraph, ‘documentary evidence’ includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films or papers of any type or description.”
The act of production doctrine is itself not absolute and admits of the “foregone conclusion” exception. See Commonwealth v. Gelfgatt,
We note that the concurrence proposes a protocol in circumstances that are not before us, and we take no view as to its proрriety.
Concurrence Opinion
(concurring, with whom Gants, C.J., and Spina, J., join). John Doe is the target of a grand jury investigation. According to evidence gathered in the course of that investigation, Doe’s cellular telephone contains evidence of the criminal activities under investigation. In June, 2013, Doe transferred his cellular telephone to a law firm that was providing him legal advice. After demonstrating that the Commonwealth had probable cause to believe that the cellular telephone contained evidence of the crimes under investigation, the judge below authorized the issuance of a subpoena to the law firm requiring it to produce the cellular telephone before the grand jury.
In objecting to the issuance of the subpoena, neither Doe nor the law firm contends that the cellular telephone contains any communications or other information stored on its memory that might be protected by the attorney-client or any other privilege. Rather, they contend that because the cellular telephone may contain incriminating evidence, compelling Doe to producе it before the grand jury by means of a subpoena would essentially compel a testimonial acknowledgement from him that the cellular telephone was his. Consequently, the law firm argues, having come into possession of the cellular telephone in the course of
I agree with the court that Fisher v. United States,
General Laws c. 276, § 1, was amended by c. 691 of the Acts of 1986 to provide special protections for documentary evidence in the possession of lawyers, psychotherapists, and clergymen, from the intrusions that might be caused by the execution of search warrants, except in circumstances where the failure to issue such a warrant might result in the evidence being unavailable through secretion, destruction, or loss.
As repeatedly articulated by the proponents of the legislation, over the many years it was under consideration by the Legislature, the legislation was intended “to protect innocent third parties in a confidential legal or medical relationship . . . [and] would affirm that in Massachusetts ... the privacy of innocent people is protected against unnecessary intrusion.” Hudner letter, supra. The proponents also proclaimed that the amendment would nоt impede the legitimate interests of law enforcement because “their right to subpoena the very same material would still be available to them.” Letter from James T. Hilliard, Counsel, Massachusetts Psychiatric Society, to then Governor Michael S. Dukakis (Dec. 16, 1986). In other words, there would be “no harm from this [amendment], which would merely shift [the gathering of evidence] to the usage of a subpoena duces tecum,” a more surgical instrument, thereby “permitting] orderly litigation of the issue of privilege.” Letter from Arnold R. Rosenfeld, Chief Counsel, Committee for Public Counsel Services, to then Governor Michael S. Dukakis (Dec. 10, 1986). See Letter from Nathan A. Talbot, Committee on Publication for Massachusetts, The First
To interpret the 1986 amendment to bar the seizure upon warrant of unprivileged evidence of a crime, where the evidence cannot be obtained by subpoena only because of the incriminating nature of the act of compelled production, runs counter to (not in accord with) the purposes of its enactment as articulated by the Governor and its proponents. See, e.g., Boies memorandum, supra (explaining opportunity to litigate privilege issue before seizure was crucial to proponents). Simply put, the amended law was never intended to permanently shield from seizure unprivileged evidence оf criminal activity placed in the hands of an attorney by a client under investigation, or to create a depository for the secretion or sequestration of such evidence from law enforcement. See, e.g., 1986 House Doc. No. 6574 (proposing language — ultimately accepted — that avoids unintended protection of unprivileged materials). Indeed, the exclusions in the amendment for documents that might become destroyed, lost, or secreted from the Commonwealth is consistent with the Legislature’s intention not to make unprivileged material unavailable to the Commonwealth.
In light of the extensive legislative history at the court’s disposal laying out the contrary intentions of all parties to the legislative process, the court’s responsibility is to interpret the statute in accord with those intentions if at all possible. Commonwealth v. Parent,
Accordingly, while I would reverse the judge’s order authorizing the issuance of a grand jury subpoena, I would not preclude thе issuance of a search warrant on a more complete record with regard to the status of the cellular telephone evidence, its utility as evidence of a crime, and whether its continued retention is necessary for the purpose of rendering legal advice.
The amendment also provided that a search warrant for such documentary evidence could be obtained if there was probable cause to believe that the
The Restatement (Third) of the Law: The Law Governing Lawyers § 119 comment c (2000) (physical evidence of a client crime), provides that although it may be reasonably necessary for purposes of representation to take possession of evidence for the time necessary to examine it, “physical evidence of a client crime in possession of the lawyer may not be retained to a point at which its utility as evidence for the prosecution is significantly impaired.”
“Secrete” is defined in Black’s Law Dictionary 1557 (10th ed. 2014), as “to remove or keep from observation, ... to conceal ... to hinder or prevent officials . . . from finding it.”