When someone becomes the client of a lawyer, he or she has the constitutional right to expect that the information shared with the lawyer remains absolutely confidential.
This is called "solicitor-client privilege," and lawyers have a positive duty to protect it for their clients.
Solicitor-client privilege can be put at risk during a law office search if proper legal procedures are not followed by the police and law enforcement.
To help protect solicitor-client privilege during a search of a law office, the Law Society of Upper Canada developed Guidelines for Law Office Searches.
Below is an abbreviated summary of some of the things to do when police arrive at a law office; it is published here to make information on law office searches easier to find for lawyers, police and members of the public.
Please note that this page is not a substitute for the Guidelines for Law Office Searches. It must be read in conjunction with the complete guidelines.
What lawyers should do when the police arrive
- Assert solicitor-client privilege over all documents and information that are to be searched for and seized pursuant to the search warrant.
- Inspect the search warrant to ensure that on its face the search warrant is valid and has been signed by the appropriate judge or justice of the peace.
- If there are deficiencies in the warrant, point them out and assert that the police should obtain a proper warrant before searching the law office. Do not obstruct the police, even if you believe the search warrant or its manner of execution to be invalid.
- Determine whether a Court-appointed referee is needed. A referee is needed when:
- The lawyer may be a target of the investigation,
- The lawyer is in a conflict of interest, or
- There is no lawyer present.
- In the event of an electronic search, determine whether an independent forensic computer examiner is needed in the event of an electronic search.
- If a referee and / or an independent forensic computer examiner is needed, raise it with the police and ask them to return to the Court to have one appointed.
- Give only what is demanded by the search warrant.
- Offer to help the police by locating the documents demanded by the warrant and placing those documents in packages. Seal the packages, initial them and then have the police do the same, taking care to ensure that the police do not see any documents or client names. Then ensure that the sealed and packaged documents are delivered to the custody of the Court or an independent third party as designated by the Court.
COMPLETE information on law office searches, including what to do both during and after the execution of a search warrant, is available in the Guidelines for Law Office Searches.
When faced with a law office search, lawyers should contact the Law Society at 416-947-3963 and ask to speak to Senior Counsel to the Director of Professional Regulation for assistance. The fax number is 416-947-9062.