A similar but somewhat different procedure is followed when the disinterested third party is a physician, lawyer, or clergyman and the materials sought or other materials likely to be reviewed during the execution of the search warrant contain confidential information concerning patients, clients, or parishioners that was furnished or developed for the purposes of professional counseling or treatment. As with other disinterested third parties, a search warrant should normally not be used to obtain such confidential materials. A warrant should be used only if the use of a subpoena, or other less intrusive means of obtaining the materials, such as a request, (1) would substantially jeopardize the availability or usefulness of the materials sought; (2) access to the materials is of substantial importance to the investigation or prosecution for which they are sought; and (3) the application of the warrant has been approved by the appropriate Deputy Assistant Attorney General (DAAG) upon the recommendation of the United States Attorney or supervising Department of Justice attorney (in a case in which a division of the Department is directly handling the investigation or prosecution). The appropriate DAAG would be a DAAG for the division which supervises the underlying offense being investigated or prosecuted.

If the documentary materials were created or compiled by a physician but, as a matter of practice, the physician's files are maintained at a hospital or clinic, the files, for purposes of these regulations, are to be deemed in the private possession of the physician; therefore, the regulations would apply if the physician is a disinterested third party. Such records would, however, not be deemed in the private possession of the physician if the hospital or clinic itself were a suspect.

Again, an exception to the authorization requirement may be made in emergency situations where there is an immediate need to seize the materials and not enough time to secure DAAG approval. In such situations, the application may be authorized by the United States Attorney or the supervising Department of Justice attorney. However, the appropriate DAAG must be notified of the authorization and its justifying basis within 72 hours of the authorization. However, in these cases (physician, lawyer, or clergyman), there is no provision for an emergency authorization by a supervisory law enforcement officer in the applicant's department or agency (as is the case where the materials sought are held by other disinterested third parties). 28 C.F.R. § 59.4(b)(1) and (2).

[cited in JM 9-19.200; JM 9-19.210; JM 9-19.221; JM 9-19.230]