NOTE ON SCOPE: For purposes of this policy only: (1) “subject” includes an attorney who is a “suspect, subject or target,” or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime; and (2) “premises” includes any location or item where potentially protected attorney-client materials may be encountered – including physical locations and materials, electronic devices, and communications content held by third-party providers, e.g., email, social media, and cloud-based accounts of an attorney who is or may be engaged in the practice of law on behalf of clients. This policy applies to proposed warrants to search the premises of any employee, contractor, or agent of an attorney, including a paralegal, accountant or consultant retained by an attorney, as well as unlicensed or disbarred practitioners of law, if the materials to be searched potentially include information related to the representation of a client. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for "documentary materials" held by an attorney who is a "disinterested third party" (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and JM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).

There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:

1. A. Alternatives to Search Warrants. In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from the premises of a subject attorney, including communications content held by a third-party provider. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.

NOTE: Prior approval must be obtained from the Assistant Attorney General for the Criminal Division to issue a subpoena to an attorney relating to the representation of a client. See JM 9-13.410.

1. B. Authorization by United States Attorney or Assistant Attorney General. No application for such a search warrant may be made to a court without the express approval of the United States Attorney or pertinent Assistant Attorney General. Ordinarily, authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected.
2. C. Prior Consultation. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division through the Office of Enforcement Operations, Policy and Statutory Enforcement Unit (PSEU), which can be reached at (202) 305-4023 or pseu@usdoj.gov.

NOTE: Attorneys are encouraged to consult with PSEU as early as possible regarding a possible search of an attorney's premises.

To facilitate the consultation, the prosecutor should submit a form available to Department attorneys through PSEU’s intranet site. The prosecutor must provide relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and filter protocols to be followed to ensure that the prosecution team is not "tainted" by any privileged material inadvertently seized during the search. Such filter protocols are discussed further below. This consultation process does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.

If exigent circumstances prevent such consultation before the warrant is presented to a court, the Criminal Division should be notified of the search as promptly as possible. In all cases, the Criminal Division should be provided as promptly as possible with a copy of the judicially authorized search warrant, search warrant affidavit, and any special instructions to the searching agents.

The Criminal Division is committed to ensuring that consultation regarding attorney search warrant requests will not delay investigations. Timely processing will be assisted if the Criminal Division is provided as much information about the search as early as possible. The Criminal Division should also be informed of any deadlines.

As part of the consultation process described above, the Criminal Division shall consult with the Office of the Deputy Attorney General, as set forth in the Attorney General’s December 30, 2020 memorandum.

1. D. Safeguarding Procedures and Contents of the Affidavit. Safeguarding procedures, including filter protocols, should be designed to ensure that privileged materials are not improperly viewed, seized, or retained during the course of the search. While the procedures to be followed should be tailored to the facts of each case and the requirements and judicial preferences and precedents of each district, in all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.
2. E. Conducting the Search. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.

While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a "filter team" should be designated, consisting of agents and lawyers not involved in the underlying investigation. Prior to conducting any search of a subject attorney’s premises, prosecutors should consult the Department’s Guidance on Attorney-Client Privilege and Attorney Work Product Filter Protocols for Search Warrants (July 2020), also available on PSEU’s intranet site.

The filter protocols and other search instructions should be provided to the filter team and thoroughly discussed with the filter team prior to the search. The protocols should set forth procedures designed to minimize intrusion into privileged material, and should ensure that the filter team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the filter team. Filter team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.

The affidavit in support of the search warrant may attach the search instructions and filter protocols, depending on district practice. At a minimum, the affidavit should generally state the government's intention to employ procedures designed to ensure that attorney-client privileges are not violated, and the approved search procedures and filter protocols should be followed.

The PSEU Filter Team Procedures Template, which provides sample filter team instructions and guidance, is available on PSEU’s intranet site. Any questions regarding the template or its application to particular scenarios may be directed to PSEU.

If it is anticipated that electronic devices or electronic records will be searched or seized, prosecutors are expected to follow the procedures set forth in the current edition of Searching and Seizing Computers, published by the Computer Crime and Intellectual Property Section (CCIPS).

1. F. Review Procedures. The following review procedures should be discussed and memorialized prior to approval of any warrant, and should take into account the practice in your district, the circumstances of the investigation, and the volume of materials seized.
   1. • Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
   2. • Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
   3. • Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm's operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
   4. • Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching electronic data (i.e., procedures which recognize the broad nature of computer seizure and are designed to avoid review of materials potentially implicating the privilege of clients whose conduct is not encompassed by the proposed warrant).

These guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.

[updated January 2025]