Law Offices of Bernard D. Morley, P. C. v. MacFarlane

tape deposition which it suppressed. ordered accept

Accordingly, allegation as be- LAW OF OFFICES BERNARD D. MOR- ing true. LEY, C.; Palace, Inc.; Corpora- P. MJL tion; Colfax, Inc.; 1661, Inc.; and Evans Generally, determination of competency Venture, Plaintiffs-Appellants, of a witness should be made only after a voir dire witness has been conducted v. by the court or by counsel in presence MacFARLANE, Attorney J. General, D. of the court. Wainwright, See Shuler v. Colorado, Gallagh- State of and Robert (5th 1974); F.2d 1213 Cir. Henderson v. er, County Attorney, Arapa- United (6th 1955). F.2d Cir. hoe; Department, County Sheriffs People Coca, See also Colo.App. .39 Arapahoe, Defendants-Appellees. 564 P.2d 431 case, In the present the witness was unavailable compe- for a No. 81SA112. tency hearing. However, tape video Colorado, Supreme Court deposition displaying the taking witness En Banc. oath, acknowledging presence her crime, scene of the alleged and testifying July concerning her memory of the events in question was available to the trial court.

In the absence of an opportunity to voir

dire the witness as to her competency, the tape

video only offered the indicia of the

witness’ demeanor on the. witness stand. itself,

Certainly, evidence, this is relevant

in showing the witness’ ability appreciate

the obligation truth, to tell the her ability

to recollect the question, event in and her

ability to communicate.2

I believe that the failure to consider rele-

vant evidence constitutes an abuse of dis- Spann People,

cretion. See 193 Colo.

561 P.2d 1268 These are determina-

tions which must be made the trial

court; I do not believe that the court can ignore

simply rely, instead, evidence and

upon an expert.

Accordingly, I would remand case to along trial court with an order to view

the video deposition. The court then should prior

reconsider its ruling light of all of

the evidence available to it.

I am authorized to say Justice ER- joins

ICKSON in this dissent. tape deposition 2. The video into was offered into entered evidence and before the court evidence competency hearing. defendant. The exhibit was

1217 Ozer, C., Ozer, relating alleged Robert C. P. Robert C. dence violations of the Conifer, plaintiffs-appellants. Colorado Code. Criminal Jr., Gallagher, Robert H. Dist. Atty., In July Cherry the chief Hills Richardson, P. Deputy Catherine Dist. Atty., Department Police contacted Detective Olli- Littleton, defendants-appellees. la requested investigation into the possible criminal activity Morley, of who is ERICKSON, Justice. a registered attorney. Colorado In re- appeal This was taken from order sponse to the request, Arapahoe County injunctive denying relief to the Law Offices SCAT and the Federal Bureau of Investiga- C.; Palace, Inc.; of Morley, Bernard D. P. joint tion conducted a investiga- undercover Inc.; Corporation; Colfax, 1661, Inc.; MJL tion Morley’s of activities. As part of their and (Appellants), Evans Venture against investigation, agents undercover the Attorney General of the State of Colo- was Morley assisting learned Lowrie in rado, Attorney of Arapahoe his alleged illegal ownership control of the Colorado, County, Arapahoe and the County of several taverns in Colorado the use of Department Sheriff’s (Appellees). corporations “sham” for each tavern. The complaint sought to enjoin the use of mate- sham corporations had people “front” rials seized from the law offices Morley named as officers directors of the corpo- pursuant to a valid search warrant. The rations which obtained liquor Colorado li- warrant was issued as a result of an under- Morley agents censes.1 told the undercover investigation cover of Bernard Morley and that he held the endorsed stock certificates client, his Harold Lowrie. Neither Morley for corporations the various sham and let- nor Lowrie a party to this case. sole resignation ters of signed the front men parties seeking injunctive relief pursuant quickly change in order to the management C.R.C.P. 65 professional are a corporation ownership and the corporations if neces- and a number of corporations which hold sary. Lowrie subsequently confirmed the liquor licenses and which operate taverns in arrangements he had Morley made with Colorado. that, The trial held under agent. conversation with an undercover case, the facts of adversary this Thereafter, in taped conversation with an required not to determine the applica- agent, Morley undercover stated don’t “You bility of the attorney-client privilege or the give ever front stock certificates. [the men] work product doctrine to the seized items seal, stock give ever ’em You don’t because the prosecution prima established a book, book, anything. keep minute We showing facie of the applicability of the By having management here.” contract crime-fraud exception. We affirm. tavern, with the record owner each and with Morley empowered change the man- I. time, agement Lowrie was able The facts of this case are undisputed. On completely control operation financial 26, 1981, January Detective Ollila of the less than five taverns in Colorado. Arapahoe County Special Crime Attack copies public After obtaining cor- (SCAT) Team prepared an affidavit for the porate records and the for li- applications issuance a search warrant for law taverns, quor licenses for the various offices Detec- appellant, Morley, Bernard D. P. C., Arapahoe requested tive Ollila the issuance of a County, Colorado. The af- Morley’s fidavit set search warrant for following forth the offices facts which formed the basis for Detective based facts forth in particular Ollila’s belief set that certain property relating was located at Mor- Morley’s affidavit role ley’s law offices which was material evi- corporations formation of the sham to de- person beverages by any parties 12-47-129, alcoholic (1978 Repl. Section C.R.S. 1973 5), prohibit prevent persons Vol. pursuant “intended to and other than the to the licensed provisions control of the outlets the sale of in this article.” the search validity of the affidavit or On licensing authority.2 liquor

fraud the war- warrant, in which the or the manner warrant was a search January executed. seizure of various rant was authorizing the issued as follows: records described appellants filed January On management pertinent “Records in and in the District Court this action businesses; following operation and seeking to of Denver City County and records, bank de- including, ... financial items of the seized enjoin the dissemination books, records, pur- bank sales posit slips, jury grand and to a investigators to state records, invoices, cancelled credit chase the items and de- reviewed until the court checks, rec- corporate stockholders attorney- termined certificates, rec- ords, employment stock doc- the work ords, ledg- business resignation, letters of to a Pursuant each document. trine as to records, books, accounting corporate er the docu- parties, between stipulation books, seals, stock books and minute with the deposited files were ments and from the busi- proceeds all monies and available for and were clerk of the court nesses: representatives only by authorized viewing ENTERTAIN- 1. INTERNATIONAL stipula- Morley. The of the law offices of CONSULTANTS, MENT INC. party each to submit required also 1601 West Evans Avenue the court’s scope on the written briefs Denver, documents and set of the seized Colorado review in deter- to be followed procedure forth the SERV- 2. EAGLE MANAGEMENT showing facie mining prima whether a ICES, INC. attorney- to exception the the crime-fraud 1601 West Evans Avenue doc- product and the work privilege client Denver, Colorado hearing on At a trine had been established. PALACE, Business as Doing 3. INC.— 5, 1981, ap- the court February district “PT’s” stipulation. the proved 1601 West Evans Avenue Thereafter, received memoran- the court Denver, Colorado law, hearing on Febru- held a second da of Doing 4. MJL Busi- CORPORATION — 13, 1981, an in camera ary and conducted ness “PT’s OF COLORADO On Febru- review of the seized documents. SPRINGS, INC.” 17, 1981, prose- that the the court ruled ary 3250 East Avenue Platte facie show- prima cution had established a Springs, Colorado Colorado of the crime-fraud ing COLFAX, Business as Doing INC.— release of the docu- permit the exception “SATURDAYS, INC.” search war- pursuant ments seized 8315 East Avenue Colfax all of the The also found that rant. court Denver, Colorado pad one file and one seized documents but ONE, 6. SIXTEEN INC.—Do- SIXTY were within the stock certificates of blank ing Business as “BOOGIE DOWN” addition, In of the search warrant. scope 1661 West 64th Avenue determined that none of the Denver, Colorado” scope pro- of the warrant were within the be- attorney-client privilege The search warrant was executed the tected the to third cause had been disseminated Arapahoe County Department they Sheriff’s that the The court also concluded January parties. and the client files and the work not fall within corporate appellant corpora- books of the documents did they prepared were not Morley’s product tions were seized from offices. In rule since or trial. Ac- appeal, appellants anticipation litigation this the do not contest 1973; 39-21-118, conspiracy, in vio- alleged degree forgery, C.R.S. 2. The affidavit second 18-2-201, (1978 18-5-103, in violation of lation of section C.R.S. section C.R.S. (1978 fraud, 8). Repl.Vol. 8); Repl.Vol. section violation of be injunctive judge. court relief would resolved trial The cordingly, denied documents, that and ordered with parties agreed that the'court would main- exceptions, released above-noted custody tain the sealed documents until Attorney State General’s offices and to the addition, the issues were resolved. Department.3 Arapahoe County Sheriff’s that, stipulation provided following submis- briefs, sion of the court would examine II. the seized documents determine if they trial appellants contend scope were within the of the search war- allowing not erred in adversarial Thereafter, rant. the court towas deter- conjunction the in with camera subject mine whether the documents were inspection prior seized items the attorney-client privilege to either or the dissemination of the In their documents. product work doctrine. Those documents view, regarding attorney- evidence subject were to either the attor- product client and the work doc- ney-client privilege product the work trine have should been heard the trial prosecu- doctrine were to be released to the a ruling court before made on the was tion. The documents which the court deter- application injunctive against relief might mined fall either attorney- within use of the seized also documents. It work doc- prosecution’s prima asserted that facie suppressed pros- trine were unless showing of the crime-fraud prima showing ecution made a facie satisfy requirements insufficient the crime-fraud applied. judicial screening of the documents. parties also that the had the agreed court particular significance option making Of is of the determination at ei- this ease ex parte stipulation hearing the or parties regarding adversary between ther an at an injunction the hearing.4 manner in which the From the record the facts issues and determine, instance, appellants petitioned 3. The Su- documents and in the first thereafter the preme stay scope Court the district court’s order within if the documents are the the or, alternative, pending appeal for a writ warrant. prohibition requiring to the it district “The Court will determine if the attor- then corporate to maintain the files seal. under ney/client privilege prod- or the work (S.Ct. 81SA62). No. In an order entered Febru- exemption applies any the uct seized ary Supreme the Court denied the documents. Those which the Court documents petition. subject are the attor- determines either ney/client privilege product or the work ex- 5, February 4. At the on trial the emption will be released for ordered forthwith judge following stipulation set the forth by prosecution. use the approved by open counsel in court: to those which the Court ... “As THE “The COURT: record should reflect that attomey/client subject determines are privilege to the informally the Court has conferred with coun- product exemption, the or the work length, really, parties sel for—at the now —and prima showing require will facie Court then stipulate agree and as follows: prosecution privilege exemp- or the that the quo “The status of the documents seized pur- by virtue of tion is dissolved the criminal Morley’s from Bernard office will be main- pose exemption privileges. per stipulation signed tained as by and order will, itself, showing at an ex “This be made parties through attorneys ap- their parte hearing by prosecution at an ad- proved date, February the Court this versary type hearing at which Plaintiffs’ coun- By Wednesday, February 5:00 P.M. on present, determines. sel will be as Court so 11th, 1981, parties both will submit written hearing to have a make “And Court will duplicate scope briefs to the Court in determination, will so that all counsel have that the Court’s review of the nature and extent the seized documents arguments opportunity their show of the cause hear- regard. in that Court ing prosecution ... at which the must establish custody “The microfilms are now in prima showing any attomey/client facie under the ... will retained Court product exemption work dis- jurisdiction subject will to such Court’s application solved virtue of the of the crimi- appropriate. further orders as the Court deems purpose exemption privileges. nal to those the seized “After the Court reviewed “Following receipt of briefs of both sides documents, will then set matter the Court indicated, the Court will then review the seized us, “Generally, we the attorney-client privilege which are before conclude that protects not err communications between the at- judge releasing trial did client, and the torney promotion without and the adversary seized documents of such to exist confidences said hearing.

benefit of the client. Losavio District Court, supra; Tramway Denver Co. v. A. Owens, 20 Colo. 36 P. 848 On attorney-client common law hand, the other work-product exemp- privilege has been codified in Colorado in tion generally applies to ‘documents and 13-90-107(l)(b), (1981 section C.R.S.1973 tangible things ... prepared anticipa- Supp.), as follows: litigation trial,’ tion of or C.R.C.P. “There particular relations in which 26(b)(3), goal and its is to insure the it is policy of the law to encourage from opposing inviolate; confidence preserve and to parties and counsel.” A. v. District therefore, a person shall not be examined Colo, Court, 550 P.2d at 327. as a witness in following cases:” however, recognized, We have * * * * * * that neither the attorney-client privilege “(b) An attorney shall not be examined nor the product exemption work is absolute. without the consent of his client as to policies underlying social doctrine each communication made the client to him may prevail sometimes conflict with other given or his advice thereon in the course and, ing public policies in such circumstanc professional employment; nor shall an es, the attorney-client privilege and the attorney’s secretary, paralegal, legal as- work doctrine give way. must sistant, stenographer, or clerk be exam- Losavio v. District supra. See also ined without the consent of his employer Clark v. United U.S. fact, concerning any knowledge regard, 77 L.Ed. 993 this which he has acquired in such capacity.” purposes” excep “crime-fraud” or “criminal It is well-established that the attorney- developed tion has as a limitation on the personal exists for the attorney-client privilege bene protection fit and of the client who holds product exemption. work The at privilege, and that it must be torney-client privilege asserted been sub always by the client. It extends only ject to confiden qualification communica tial matters by communicated or to the tions attorney made to an to obtain his client in counsel, the course gaining of ad advice for the commission of criminal acts vice, or respect direction with protected to the client’s are not privilege. Simply rights See, or obligations. e.g., stated, A. v. Dis the crime-fraud provides Court, trict 191 Colo. 550 P.2d 315 that communications a client and between (1976), denied, cert. 429 97 privileged they U.S. S.Ct. his are not if 737, 50 (1977); L.Ed.2d 751 Losavio v. Dis made for the purpose aiding the commis Court, trict 188 Colo. 533 P.2d 32 sion of a future crime or con (1975). The work product Court, doctrine is re tinuing crime. v. District Caldwell lated but distinct theory Colo., out (1982); arises 644 P.2d 26 A. v. District similar policy Court, Court, interests: supra; Losavio v. District su- “Oh, for on the matters covered COUNSEL APPELLANTS: FOR Yes." agreeable briefs at a date to all counsel. THE Beckman?” COURT: “Mr. preliminary injunction “The approve scheduled for COUNSEL APPELLEES: “We FOR 1:30 this afternoon is deemed moot virtue of it.” stipulation.

this THE COURT: “Mr. Hilton?” correctly “Yes, stipulation [H]ave dictated the APPELLEES: CO-COUNSEL FOR into the record?” Your Honor.” COUNSEL right. stipulation FOR APPELLANTS: “That THE COURT: “All fine, sounds approved Your Honor.” then is and made an order of “Okay. you approve THE COURT: And it?” Court.”

1221 pra. See also In re September 1975 Grand the attorney-client privilege. The ra- Term, (10th F.2d Jury 1976); 532 734 Cir. supporting tionale in both State, (Alaska 1978). v. 580 Webb P.2d 295 virtually areas is identical. The work product privilege perverted is if it is used recognition In public policy illegal further as is activities the attor- warranting considerations a crime-fraud ex ney-client there privilege, and are no ception to attorney-client privilege, we over-powering considerations in either Court, in A. v. supra: held District situation that would justify shielding “The attorney-client privilege is rooted in of evidence continuing that aids or future the principle open that candid and discus- (Citation activity.” criminal and footnote sion the client to without omitted.) In Jury Proceedings re Grand fear disclosure will promote the order- (FMC Corp.), 604 F.2d at 802. ly justice. administration of The criminal Court, See also Caldwell v. supra; District purpose exception to the privilege grows Zletz, (7th 1969); Natta v. 418 F.2d 633 Cir. out of a competing value of society our Hercules, Inc. F.Supp. v. Exxon 434 Corp., which is manifested in the rule ‘the (D.Del.1977). case, 136 In either the ration public right has the every man’s evi- ale excluding such communications from dence, particularly grand jury proceed- scope attorney-client privilege ings.’ Consequently, the attorney-client product exemption the work is that the. (Citation is not absolute.” Colo, policies supporting inap their existence are omitted.) footnote 191 at 550 plicable sought where the advice and aid P.2d at 324-25. refer to future rather wrongdoing than to Court, See also Caldwell District supra; prior misconduct.5 Caldwell v. District Jury (FMC In re Grand Proceedings Corp.), Court, supra. Walsh, also In re 623 (3rd 1979); 604 F.2d 798 Cir. Clark v. Unit- (7th 1980), F.2d denied, 489 Cir. cert. 449 States, supra. addition, ed just as the U.S. 66 L.Ed.2d attorney-client privilege may not be abused (1980); In re September Jury 1975 Grand as a shield ongoing illegal future Term, Evidence, supra; Wigmore, 8 J. activity, the attorney product work doctrine (McNaughton 1961); Rev. C. § cannot allowed to protect perpetra- McCormick, Evidence, (2 1972). ed. § wrongful conduct. See Caldwell v. Court, again In A. v. District supra, and Court, Thus, supra. District principles we supra, Caldwell underlying the crime-fraud exception have the procedure addressed to be followed in applied also been the work doc- determining ex- whether crime-fraud trine: ception applicable particular to a case: “[Wjhen consulted, lawyer not with judge order disclosure of the respect past wrongdoing, may but to future “[A] activities, illegal allegedly privileged longer is no defensible prima showing and the facie the future exception crime-fraud play.... comes into [Tjhere exception applicable.... is no actual crimes [T]his in inconsistency applying prima showing crime-fraud facie ‘not tantamount exception case,’ to the work well product proof prima as as a facie but requires 5. The Code ognizes ney-client privilege DR 4-101 states: vent or court order. crime and the under “(C) “(3) The intention of “(2) Confidences or secrets when A the crime-fraud ^[******] Disciplinary Lawyer may crime.” of Professional information and work Rules reveal: his exception Responsibility necessary product required to commit to the attor- permitted doctrine. pre- rec- a fraudulent,” gal engage conduct trary P.2d 315 Of See also 102(A)(3); course, conduct in other a A. (1976). Disciplinary or v. District involving DR “counsel lawyer illegal lawyer 7-102(A)(7); shall moral conduct Rule,” or knows assist turpitude,” 191 Colo. DR or “engage or conduct his client 7-102(A)(8). “knowingly illegal DR con- ille- 1- or an enhanced Consequently, privacy founda- there is showing that there be a of ‘some alleged illegal for the con- underlying attorney-client fact’ interest rela conduct may duct. ... trial tionship heightened which warrants a de [T]he allegedly priv- an in camera review of the gree judicial protection supervision requiring documents without first ileged subject when law offices are the of a search if it determines prima showing a facie general for client files or documents. See that this would aid its assessment Bloom, ly, The Law An Office Search: privilege’s The ultimate applicability. Emerging Suggested Problem and Some party asserting burden is the Solutions, However, (1980). Geo.L.J. privilege, and must be judicial regarding propriety decisions the exception applies demonstrated that protections law office searches and the af to each document before that document is forded must- attorney-client privilege stripped of its privilege.” Caldwell v. Upjohn be made on an ad hoc basis. See Court, 644 P.2d at 383, 101 v.Co. United Caldwell, In (1981). we determined that in order to 66 L.Ed.2d 584 It is therefore protection reconcile “the need for of the within the sound discretion of the trial attorney-client relationship compet- and the prosecution court to determine whether the ing need to relationship avoid use of that proper a foundation in fact established perpetration wrongful shield for the for the of the crime-fraud ex applicability conduct,” quantum of proof required to ception and whether the overall search and invoke the crime-fraud was “not seizure was conducted in a reasonable man proof prima tantamount to of a facie case.” ner in view of the enhanced inter Rather, we that a prima held facie show- est. In September Jury re 1975 Grand ing gives a foundation in fact Term, 532 F.2d 734 In order to —one ongoing the assertion of or future crimi- assure that intrusions into client files and nal conduct—was sufficient to invoke the materials do not unreasonably interfere applicability of the crime-fraud exception. with the attorney-client relationship, an ad Id. September Accord In re 1975 Grand versary hearing is desirable when the attor Term, (on Jury supra a claim of privilege, it ney-client product the work is necessary only demonstrate a potential doctrine is invoked to bar the dissemination relationship between the seized documents of documents seized as a result of a law charges under investigation). We office conducting search. such a hear approved this lesser proof burden of in rec- ing, judge the trial is able to rule on the ognition the significant proof problems attorney-client facing proponent of the crime-fraud ex- and the work doctrine to each docu ception. Note, Id. See also The Future seized, ment thereby preserving detailed Crime or Tort Exception to Communica- record for appeal. Privileges, tions (1964); 77 Harv.L.Rev. 730 Under the circumstances of this Gardner, The Exception Crime or Fraud case, however, the trial court did not abuse the Attorney-Client Privilege, 47 A.B.A.J. its by releasing discretion the documents Morley’s seized from offices without an ad B. versary hearing. ques The documents in pursuant tion were seized to a search war

Any search of a law office for rant conjunc client files issued district court and materials must precisely ongoing investigation limited and tion with an of con restricted to prevent explor atory search. It in tinuing activity allegedly is axiomatic that criminal which the confi dentiality of the attorney-client Morley Morley volved as well as his client. relationship must be preserved by protecting target investigation, the com was therefore a of the munications, documents, specifically and materials and the search of his offices was which a client has made designed available to his evidence of his criminal obtain lawyer in order to legal obtain advice. of sham relating activities to the formation ty Cf. the corporations purposes. for fraudulent circumstances as shown the by Johnson, O'Connor v. 287 N.W.2d 400 case, record in this including stipulation the Deukmejian (Minn.1979); Superior and the manner in which the attorney-client 253, 162 103Cal.App.3d Cal.Rptr. 857 privilege the and work rule Bloom, generally, The Law Of asserted, been we are satisfied that the An Emerging fice Search: Problem and nexus between the documents seized and Solutions, Suggested Some 69 Geo.L.J. type of ongoing criminal de- conduct Gurfein, (1980); The Assault on the Citadel scribed in the affidavit supports finding of Privilege Apace: Proceeds The Unrea that the crime-fraud was applica- Searches, sonableness of Law Office permit ble to the disclosure of the seized Fordham L.Rev. 708 documents. Moreover, we are not confronted in this judgment Accordingly, of the district appeal with claim regarding the reason- court is affirmed. ableness of the search of in Morley’s offices light of privacy the enhanced interest un- J., QUINN, specially concurs. derlying the attorney-client privilege. The claim, appellants not do assert constitu- Justice, QUINN, specially concurring: otherwise, tional proce- directed to the I concur specially Although in result. dures used law enforcement authori- appellants specifically did not in assert ties seize the files and in their complaint Morley’s that the search of issue. The sufficiency accuracy of the law office violated their constitutional affidavit, validity of the search war- rights privacy under the Fourth Amend- rant, and the in manner which the search ment to the United States Constitution warrant was executed are therefore in not II, Article 7 of the Colorado Consti- Section issue this case. People Hearty, Cf. tution, did they irrep- claim that the search Colo., 664 P.2d 302 (1982). The sole issue arably right harmed their “legally protected now before us attorney- is whether the confidentiality protected of documents prevents client privilege the dissemination attorney-client privilege,” they [the] of the seized documents. requested enjoining an order the disclosure We do not have the documents us before parties. of the seized documents to third I review, and we are with faced minimal stipulation do view between sparse references in a regarding record parties the appel- as an abandonment of precise nature and content of the docu- but, lants’ for an request adversary However, ments seized. it is clear that rather, nothing I as interpret it more than before the trial court its entered written agreement submit briefs court order concluding prosecution that the had on the proper procedure to be followed a prima made facie showing that the crime- resolving appellants’ injunc- claim for fraud applied to all the seized appel- tive Given nature of the relief. documents which were within scope us, I lants’ claim and the record before warrant, it reviewed the affidavit for appellants believe the were entitled to at the search warrant and the briefs submitted some form adversary hearing least parties, conducted an camera in- protect order to their enhanced review of all the seized documents. The rela- grounded lawyer-client terests documents which the court determined not However, doc- tionship. because the seized to be scope within the of the warrant were already been uments have disseminated then appellants. returned The trial granting an ad- agencies, enforcement court also found disclosures versary hearing stage pro- at this Morley and his client to third parties of the the disclosures ceedings existence of would not undo the documents prepared part and, of their for this ongoing already place have taken scheme to defraud the liquor licensing reason, dis- authority judgment defeated their believe claim of privilege. sepa- In reviewing the totali- I write trict must affirmed. 1224 doctrine, (1) however, plain reasons: seized under the view which for two

rately, procedural only requires need for safe- there be a reasonable point up the pro- and above the traditional nexus between the documents seized and guards, over the issuance and E.g., Coolidge cedures associated with criminal behavior. v. New warrant, 443, 464-72, in order to 91 Hampshire, execution of a search S.Ct. intrusions, 2022, 2037-42, prevent unjustified likely to oc- 29 L.Ed.2d 581-87 Franklin, during (1971); People cur law office search without these 640 P.2d 226 a search, A without safeguards, upon privacy (Colo.1982). interests un- law office derlying lawyer-client relationship; protective procedures, will inevita special that, without (2) explain why bly chilling attorney-client believe cause a effect post-seizure pose significant communications a procedural safeguards, these right on the crime-fraud ex- constitutional adversary hearing threat a client’s not, itself, adequately pro- guaran does of counsel ception effective assistance right privacy tect the constitutional im- teed the United and Colorado States VI; plicated the law office search. Amend. Constitutions. U.S.Const. II, 16; see Weather Colo.Const. Art. See. 51 Bursey, ford v. 429 97 S.Ct. U.S. I. (1977). L.Ed.2d 30 lawyer’s The search of a office for client The is the oldest poses special attorney-client files threat to the confiden privileges of the for confidential communi- tiality attorney-client relationship of the be cations known to the common law. 8 J. cause it circumvents the assertion of the (J. Wigmore, McNaughton Evidence 2290 attorney-client privilege, thereby exposing § 1961). purpose encourage rev. ed. Its is to normally unobtainable information to the Bloom, full and frank communications between at- police. See The Law Office Search: in order Emerging Suggested torneys pro- An Problem and and their clients Some Solutions, (1980); Note, public mote the broader interests involved 69 Geo.LJ. 1 justice. in- Assault in the administration Such Privilege On Citadel Pro dignity terests include Apace: preserving ceeds The Unreasonableness of Law Searches, by assuring given pro- individual that he is Office 49 Fordham L.Rev. 708 (1981). Putting rights against power aside tective any potential incur Thus, privilege recognizes privilege against sion self-incrimi state. “[t]he legal advocacy nation result that sound advice or serves might from such searches, States, public see Fisher ends and that such advice or advoca- v. United 425 391, 416, 96 1569, 1583, cy depends upon lawyer being fully U.S. S.Ct. 48 L.Ed.2d J., Upjohn (1976) (Brennan, concurring), 58 informed the client.” Co. States, 383, 389, 449 101 lawyer’s unmonitored search of a office en United U.S. 677, 682, dangers 66 L.Ed.2d privacy only interest not need for the against lawyer those clients whom the search is rests on the directed but also the “to know all that relates to the client’s privacy interest of seeking representation other reasons for if the investigation clients not under who attorney’s professional have made confidential mission is to be disclosures to the carried out.” Trammel v. United attorney. 906, 913, U.S. 100 S.Ct. executing Law enforcement officers L.Ed.2d search warrant in a office lawyer’s likely recognized will find it the en- necessary peruse legislature miscellane- Our ous papers attempting to locate the ma- interest inherent in the at- hanced terials 13-90- sought. torney-client relationship. Even when documents are Section located, (1981 there includes might 107(l)(b), Supp.), still be other entries in C.R.S. within that relationship documents which are immune to disclo- the attorney-client “in it is sure under an of relations applicable privilege. special category Fur- thermore, encourage confi- any client have his file of the law to may policy

1225 preserve dence and .. son’s that papers . inviolate” com- are not necessarily munications made in the course thereof. present executing in a warrant to search extends privilege to all information physical objects whose relevance is conveyed by corporate both individual and more easily ascertainable. In searches clients to in attorney confidence for the is certain some papers, it that innocu purpose of obtaining legal Upjohn advice. examined, ous documents will be at least States, Co. supra. v. United inviolabili- order cursorily, in to determine whether ty of the is particularly significant are, fact, they in those among papers in criminal prosecutions where the constitu- dangers, authorized to be seized. Similar tional right necessarily to counsel includes a course, executing are a war right in private confer with one’s attor- rant for the ‘seizure’ of telephone conver ney. 80, Geders v. United 425 U.S. searches, sations. In both kinds of re 96 1330, S.Ct. 47 L.Ed.2d 592 sponsible officials, judicial including offi cials,

The devastating effect of a law office must take care to assure that they search apparent is all too the target when are in a conducted manner that minimizes a search is law office engages which privacy.” unwarranted intrusions on 427 in the representation of criminally ac- n.11, 482, 2749, n.11, U.S. at 96 49 S.Ct. work, cused. Criminal defense defini- L.Ed.2d at n.11. tion, litigation govern- involves in which the theme, We recently echoed this same ment itself is Under adversary. such specific lawyer’s context of the of a search nothing scrupu- circumstances less than a office, v. 644 People Hearty, P.2d lous unnecessary avoidance all intrusions 313 (Colo.1982),where we stated: into confidential communications gov- rigid “We that believe adherence ernmental is agents absolutely essential to requirement particularity appropriate integrity lawyer-client relation- lawyer’s where a office is searched for ship. designated Anything documents. less The United States Court Supreme has than a strict limitation of the search and recognized that the constitutional require seizure to those documents particularly ments of might reasonableness well vary described in warrant could result in a with the privacy expectations affected wholesale incursion into com- privileged search. example, For a warrant “sufficient a highly sensitive nature. munications to support the search of apartment or an privileged Once the communication is re- automobile not necessarily] be rea [would police, vealed to the for all sonable supporting the search of a news practical lost.” purposes has been paper office.” Zurcher v. Daily, Stanford privacy Because the enhanced interest 547, 569-70, 1970, 1983, 436 U.S. 98 S.Ct. of a law- is undercut J., (1978) (Powell, L.Ed.2d concur office, yer’s Supreme of Minneso- Court ring); Michigan see Tyler, also v. ta where an is not held that 499, 506, 98 S.Ct. 56 L.Ed.2d suspected and there wrongdoing of criminal 496 (1978) (“[t]he showing probable cause is no to a pertaining threat necessary to secure a may vary warrant with authoriz- object destroyed, will be a warrant intrusiveness of the search”). Maryland, In Andresen of a se ing lawyer’s per the search office U.S. and, instead, 49 L.Ed.2d 627 subpoena duces unreasonable (1976), the Court referred to enhanced attorney. tecum must be served attaching private interests pa Johnson, O’Connor 287 N.W.2d 400 pers: however, (Minn.1979). procedure, en- This of poten- tails the risk of loss or destruction recognize

“We grave there are dangers evidence, tial executing especially inherent when warrant authorizing par- a search and of a third per- might totally seizure not be a blameless will legitimate for this reason I would not mandate accommodate needs ty, and Rather, where presump- it at this time.1 in criminal investigations.2 enforcement sought to be tively privileged materials warrant should describe material seized, policy I believe the same concerns sought heightened degree particu- with a People recent decision in guided which our with larity commensurate information Hearty, supra, v. applicable are here. In known to the officers at the time the war- view, my following strict adherence to the People su- Hearty, sought. rant is procedures judges issuing search war- pra. specificity drafting in will Greater adequate protection rants will afford to the reduce the risk that officers executing endangered by the interests lawyer’s of a office and at the same time warrant will need to examine unrelated reversing nonsuspect ruling party, In because the once a federal district court’s third prohibited the issuance of search war- subpoena, preserve with a will served against parties required rants poena ence, third and a sub- ultimately lawfully respond. evidence and prefer- duces tecum as a constitutional difficulty assumption with this is that Supreme Court Zurcher v. Stanford employed early search warrants are often 547, 560-61, 1970, Daily, 436 U.S. 98 S.Ct. identity investigation, perhaps an before the certainly 525, (1978), 56 L.Ed.2d 538-39 stated: any likely criminal and before all event, any presented by “In the reasons perpetrators are or could be known. The adopted by Court Court of seemingly party posses- blameless third Appeals arriving at its remarkable conclu- may sion of the fruits or evidence not be First, analysis. sion do not withstand as we all; is, may innocent at and if he he neverthe- said, apparent have third-party it is that whether the the sympathetic less be so related to or so with not, occupant suspect is or culpable that he cannot be relied to enforcing State’s interest in the criminal law preserve may retain and plicate the articles that im- recovering and same; the evidence remains the innocence of the friends, notify his or at least to not seeming and it is the damaged by those who would be the evi- property owner that the District Court relied dence that the authorities are aware of its But, on to foreclose the warrant to search. event, likely location. real that the respondents concede, as themselves now if culprits property, will have access to the party the third knows that contraband or delay employing and the poena opportunity involved the sub- illegal property, other is materials are on his he tecum, offering duces as it does the sufficiently culpable justify the issuance validity, litigate its could easi- Similarly, of a search warrant. if his ethical ly dence, disappearance result in the evi- factor, determining stance is the us that whether or not he knows that the it seems to good whatever the faith of the third party.” sought-after prop- articles are secreted on his erty and whether or not he knows that the aggrieved by 2. Because those the search of a fruits, articles are in fact the instrumentali- lawyer’s parties, office often third are see no ties, crime, or evidence of he will be so in- distinguish, purpose proce- reason to served, formed when the search warrant is herein, dures described search between a law office and it is doubtful that he then should permitted hold, involving suspected search, in- object to with- there, activity if volvement in criminal it is the evidence of crime reasonably possessed by believed to be who is not. him property, or secreted on his search and insist that the officers serve him and to forbid the Mary “The mere fact that in [v. Andresen land, 96 49 L.Ed.2d subpoena with a duces tecum. (1976)] Superior 627 and Burrows [v. “Second, unpersuaded we are that the Dis- Cal.Rptr. 13 Cal.3d 529 P.2d denying trict Court’s new rule search war- (1974)] attorneys charged both were with against parties insisting rants third crimes creates' a distinction without a differ subpoenas substantially priva- would further dealing ence when we are with considera cy seriously undermining interests without affecting privileged tions An material. attor law enforcement efforts. Because the fun- ney suspected activity of criminal should public implementing damental interest in have the same concerns about the confiden tiality law, warrant, criminal the search a hereto- containing privileged of files matter as constitutionally acceptable fore effective and party attorney alleged an innocent third who tool, suppressed enforcement should not be ly possesses containing and controls files evi on the basis of surmise and without solid Deukmejian dence of conduct.” criminal supporting change. evidence trict As the Dis- Angeles, Superior Los 103 Cal. Court of it, denying third-par- Court understands Cal.Rptr. App.3d ty search warrants would not have substan- tial investigations adverse effects on criminal given om- must be to the attorney files and documents. Such catch-all or whose office and, phrases “any per- nibus and all records” was searched in the event the attorney taining persons to a class of or even to a present, copies is not should left his particular person simply too broad executing office. The officer the warrant satisfy requirement constitutional required deposit should also be forthwith Only particularity.3 possible where it issuing with the judge all documents seized by caption, describe files and documents during and sealed the execution of the war- frame, author, title, date or recipient time rant and to file written of all inventory characteristics, identifying similar either property during taken search. See because information is unknown to Model Code Prearraignment Procedure officers is not on the materials § 220.5 be to sought, generic should resort had such After warrant execution of the the court descriptions as “real estate records” or “in- unnecessary notify without the delay should and, instances, come tax records” these attorney whose office was searched of the the expressly records must be confined to a seizure, and should provide opportu- also specified person and transaction. to nity examine the documents and file a Additionally, issuing judge the should in- any for return motion the of documents corporate into face the the of warrant ground the that the search and vio- seizure clearly worded directions ex- governing the his lated constitutional or privacy interests ecution of the search itself. If the papers those of his Upon clients. the of the filing sought are readily cursory identifiable documents, motion for the return of the examination of an outside folder or contain- court shouldset the matter for a and er, require the warrant should the execu- permit present to evidence and ting officer to seize and seal the papers if argument support Only of the motion. once located without any further examina- and as upholds seizure hand, tion their of contents. On the other constitutional should it then consider if the papers sought cannot be identified appro- might whether the seized documents examining without their contents or priately be disclosed to enforcement documents, contents of other the warrant reason of the crime-fraud authorities should restrict the officer executing to such exception. again, should Here necessary examination only properly to argu- and permitted to evidence identify papers as within the of scope attorney- ment on the of the and, identified, the warrant when so excep- and the crime-fraud require warrant should the officer to seize to the seized documents. and seal the documents. The warrant ade- procedures necessary further These completion should direct that upon of protect expecta- the search a of those copy quately legitimate the warrant and a copy inventory of property taken tions of which are inherent Abrams, investigation possible practices, 3. See United of fraudulent States v. 615 F.2d 541 (1st 1980) (warrant authorizing unconstitutionally Cir. seizure overbroad because was pa- investigated precise “certain business and medical records of was nature of the offenses tients ... which show actual medical services to nar- not delineated and no effort was made performed by category, period and fraudulent services claimed time row performed have been like); Superior in a scheme to defraud of San Burrows v. Court County, United States and to false submit medicare 529 P.2d Bernardino 13 Cal.3d payments” (warrant and medicaid (1975) claims for was uncon- Cal.Rptr. autho- stitutionally no attorney’s overbroad because there was rizing and seizure search of office description specific records, to be books, records seized and bank state- accounts “all pertained); the time frame to which the receipt records and and cancelled checks ments Lafayette Academy, (1st In Re 610 F.2d 1 Cir. money file or docu- disbursement (warrant 1979) books, authorizing seizure of [particular referring un- clients]” ments papers, letters, correspondence many other imposed constitutionally because it overbroad types of documents from a vocational home- upon objects meaningful no restrictions study participating federally school insured seized). program, student loan in connection with an right against to be free an unlawful which, I be- lawyer-client relationship origin seizure is constitutional lieve, search or protection are entitled to enhanced designed prevent improper and is investi- II, under Article 7 of the Colorado Section the incentive Constitution, gatory by eliminating tactics if not also under Fourth LaFave, 1 W. generally, them. Amendment to the United States Constitu- Search and Seizure 1.1 Central § tion. an unlawful determination of whether II. whether the aggriev- seizure has occurred is expectation ed has a reasonable party procedural safeguards Without these privacy in the area searched or the materi- post-seizure adversary believe that a hear- See, e.g., Katz v. United als seized. ing, exclusively application devoted to the 88 S.Ct. 19 L.Ed.2d of the crime-fraud to the seized materials, adequate is not itself safeguarding task of constitutional under the crime- inquiry focus right privacy implicated by the search of upon fraud is not the constitu- a lawyer’s excep- office. The crime-fraud tional of the manner in which significance evidentiary admissibility tion is a rule of the evidence was nor acquired, designed resolving which is whether significance of the disclosure to under- confidential information disclosed interests of those about lying constitutional subject client to an is nonetheless Rather, aggrieved by to be the disclosure. to testimonial disclosure in the course of a particu- is limited to whether a inquiry judicial proceeding,4 during pretrial lar the evidentiary communication satisfies contrast, discovery phase litigation.5 of In exception. features of the standards of 4. whether the crime-fraud over the 315 leged documents, federal courts have differed naed documents to a In A v. the by tration of ter which the Colo, dence in the before the documents were admitted in evi- be ‘driven facie case. that there must have been some foundation give confidential medical records —the disclosure will ifested right competing evidence’ mentioned in Clark v. United grand jury proceedings.’ exception Branzburg in fact for the (1932), context of the (1976) “The “We in the client to the establishing principle colour to the the context of the disclosure of 33 L.Ed.2d 626 ^[******] procedures required. Compare recognize 289 U.S. is not tantamount attorney-client privilege every we examined the crime-fraud justice.... away’ the rule that ‘the to the value of our It means in the that candid and grand jury Hayes, man’s grand jury proceeding.” promote charge 550 P.2d at subpoena there standards that before the privilege grows charge.’ evidence, particularly grand jury (1972)). must of 191 Colo. The criminal society exception applies ” conspiracy of orderly proof assertedly open without investigating— public which is man- ‘something is rooted determining 10, ‘prima and stated: of a discussion very L.Ed. 993 out situation adminis- 550 P.2d (quoting 92 S.Ct. purpose has the subpoe- to steal fear excep- prima In Re privi- facie mat- of can of in wrongful conduct sufficient to invoke the crime vant to the We held that 644 P.2d 26 cability lege there is “a factual basis cability or fraud crime-fraud good civil fraud is to matters “not evidencing of documents in the to be panelled February fraud, where “the 449 U.S. cludes documents) well because C.R.C.P. existence of the only by (1980) (court approved (10th cially-created Cir. era on facts September Walsh, Recently, in Caldwell v. District question 1979) (attorney has occurred.” 644 P.2d at 33. The faith belief Cir. protected by in the context of a grand jury 623 F.2d 489 of the crime-fraud of the crime-fraud revealing exception 1976) (no adversary hearing required 1975 (Colo.1982), discoverability underlying with In of exception establishing alleged use attorney’s 101 S.Ct. whether privileged.” Grand privilege may immunity) examination of privilege gives way 14, 1978, permitted to possession Matter of Grand (7th a reasonable and the very 26(b)(1) privilege”). Jury facts makes a we claim in camera adequate request Cir. exception 531, attorney-client privi- involvement of material in Cald- exception examined the information Term, demonstrating 603 F.2d 469 1980) and In Matter of proponent of limits 66 L.Ed.2d 291 testify for showing privilege pre be Court, Colo., 532 F.2d 734 person subpoenaed cert. denied under to material proceeding production support presented discovery was rele- Jury attorney. in cam in civil sought where appli- appli- judi Em- (3d however, admissibility, evidentiary hearing on the propriety of the search and proxy rights. constitutional Evidence seizure, an adversary on the hearing crime- competent otherwise and relevant nonethe- itself, fraud exception, by does not provide might subject to less exclusion because protection to the privacy interest threat- acquired by the manner in which was ened by the a lawyer’s office for governmental agents. client files. Because the documents seized in this already case have Being been distributed to evidentiary exception to a testi- officers, law enforcement privilege, monial no purpose crime-fraud simply does not address the served remanding constitutional case to the district dimensions the problems court for underlying and, further proceedings accord- search of a lawyer’s office. For example, ingly, I concur affirmance has no bearing ques- on the judgment. tion whether an affidavit proba- establishes

ble cause to search in the first instance.

Also, the timing of the hearing, which nec-

essarily place subsequent takes to the sei- documents,

zure impossible renders it safeguard against the indiscriminate ex-

amination purportedly privileged docu- during

ments Furthermore, search.

narrow evidentiary character of a offers no opportunity aggrieved to those COMPANY, RANGER INSURANCE the search to contest the truthfulness of the Products, Inc., Metro Oil affidavit validity or the of the search and Sherry Hoggard, Petitioners, seizure conducted under the If warrant. the affidavit in support the warrant fails probable false, establish cause or is ifor The DISTRICT COURT In and For the documents are an seized in unconstitutional DENVER, CITY AND COUNTY OF manner, then disclosure of the docu- Brooks, Colorado, State of and John sit- necessarily ments undercuts in- ting Judge Respon- as the of said persons terest those whom the docu- dents. ments granting relate. Even the of a mo- No. 82SA61. to suppress the seized evidence course of proceedings later hardly Colorado, Supreme Court remedy effective to restore the confiden- En Banc. tiality those long communications which since have been parties. disclosed to third July Before the application the crime-fraud court, is ever considered persons those aggrieved by a law office

search must be afforded an opportunity

raise and have resolved constitutional

propriety of the search and seizure in the

first Only instance. if the search sei- are constitutionally

zure upheld, should

adversary hearing on the

the attorney-client privilege and the crime-

fraud exception come into play. imposition believe that without the

the previously safeguards relating described

to the issuance and execution warrant, the post-seizure constitutional

Case Details

Case Name: Law Offices of Bernard D. Morley, P. C. v. MacFarlane

Court Name: Supreme Court of Colorado

Date Published: Jul 6, 1982

Citation: 647 P.2d 1215

Docket Number: 81SA112

Court Abbreviation: Colo.