Law firms and search warrants — what should you do?

Sometimes during our busy day, there is not time to consider issues when the likelihood of occurrence is low but the impact on a firm’s ability to function is high. Such things have a tendency to fall off the radar.

Cyberattack is one area that we often hear about in the news, but have you ever considered how your firm would react if a search was executed on the firms premises?

There is always a risk that a search warrant will be executed because of a client, a firm employee or the firm itself.

In February 2017, Queensland Law Society launched a set of guidelines agreed between the Queensland Law Society and the Queensland Police Service. The guidelines were drafted to provide adaptability as technology advances. Currently, partial forensic copying of electronic material is more of a theoretical possibility than a practical reality. However, this will change as technology develops.

There is no doubt that a search warrant will have an impact on a firm’s ability to function, even if only for a short period. Solicitors need to know what obligations they have to inform affected clients. The guidelines provide protocols to help guide solicitors through the process, including material on obligations to inform affected clients.

Forensic copying of material stored electronically is now common practice when a search warrant is executed. This could include a firm’s hard drive, backup drive, data stored in the cloud and mobile phones, including text messages sent and received. The guidelines detail how solicitors are able to protect their clients’ legally privileged material, if devices are forensically copied.

Many firms will have experience asserting legal privilege over documents during civil litigation. However, in that situation the firm has some control over the documentation and the process. When material has been seized under a search warrant the process of determining privilege may require a different approach. The guidelines provide a process designed to assist solicitors to make a valid claim of legal privilege and can also be adapted by the parties when circumstances require.

Once a solicitor has validly asserted privilege on behalf of their client, an application to the Supreme Court may be necessary in order to determine the validity of the claim. The guidelines provide detailed guidance of the process involved, including how to identify electronic material.

If you would like to find out what an MD5 hashtag is, understand partial forensic imaging and why understanding the guidelines now could save you time and money, join us for the QLS webinar on search warrant guidelines on 25 May from 12.30–2pm.

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