Supreme Court OKs seizure of attorney’s client files

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The District Court did not err in denying a motion to return property seized from an attorney under a search warrant, even though the property included client files and confidential information, the Supreme Court has ruled.

The court left the door open for future challenges to the lawfulness of the seizure, including in criminal proceedings against the attorney, who has been charged with theft by swindle.

But the court also issued a caveat. “The district court should have ordered that copies of the seized client files be immediately returned to K.M. It is vital to any attorney that she have access to her files to fulfill her professional responsibilities. This includes not just advising her clients in ongoing matters, but also notifying clients that their open and closed files have been seized by law enforcement so that those clients can take timely steps to protect their rights,” wrote Justice David Lillehaug for a unanimous court in In Re K.M. v. Burnsville Police Dept. et al.

Two search warrants

The case arises out of K.M.’s representation of two clients in a controlled-substances investigation.  One of the clients then alleged to police that he gave K.W. $15,000 supposedly for the purpose of donating the money to the police union in order to prevent charges against him. K.M. deposited the money into her bank account, the court said.

The Burnsville police obtained a warrant to search K.M.’s home, where her office is located. Police seized a personal computer, a computer tower, a laptop, two external hard drives, two thumb drives and some papers. According to K.M’s attorneys, the electronic devices seized contained approximately 1,500 to 2,000 files about K.M.’s current and former clients, including both civil and criminal matters.

About a week later police obtained a second warrant to search the electronic devices. The warrant authorized not only the Dakota County Electronic Crimes Task Force to search the devices, but also named Burnsville police officers and “any other authorized person.” They were authorized to search for four categories of specified files and documents related to M.W. and J.S. The District Court sealed the application and the search warrant. The police still have the electronic devices.

The same day, K.M. filed a pleading in Dakota County District Court captioned “Motion for Return of Seized Property or Other Relief.” The motion was not accompanied by a complaint, was not captioned as one for a temporary restraining order or a temporary injunction, and was not supported by affidavits or other sworn evidence.

At a hearing a few days later, K.M.’s attorney said he was trying to get the matter into court to “stop the bleeding.” The Burnsville police requested an ex parte hearing under Minn. Stat. §626.04 to advise the court of the status of an ongoing investigation. After the hearing, the court said that the seized property is being held in good faith as potential evidence. K.M. had not been charged at that time, but subsequently was.

Copies of the files were eventually returned to K.M. She filed a petition for a writ of prohibition at the Court of Appeals, which was denied. (K.M. v. Burnsville Police Dep’t (In re K.M.), No. A19-0414, Order at 4 (Minn. App. filed Mar. 26, 2019)).

Some of K.M.’s clients, John Does 1-4, intervened.  The state also intervened as a respondent.

Procedural confusion

The procedural posture of the case resulted in confusion because K.M. filed a motion under section 626.04, but not a petition. At the time there was no civil action and no criminal charge. The District Court then construed K.M.’s motion as a petition under section 626.04, and then decided the motion based on that statute. The Supreme Court said the District Court acted reasonably.

Additionally, K.M.’s motion did not clearly make separate constitutional claims and thus the District Court did not err in failing to decide them, Lillehaug wrote.

“To be sure, we can well understand that K.M. wanted to proceed quickly — all of her client files, apparently including attorney-client privileged communications and work product, had just been seized. Indeed, section 626.04 provides a speedy and informal remedy, and the district court and the parties proceeded expeditiously. Now, with the benefits of time and access to documents previously under seal, K.M. and her intervenor clients have capably articulated and briefed multiple constitutional arguments. But these arguments were not squarely before the district court in the expedited proceeding. Under the circumstances, we cannot fault the district court for construing the motion as a petition under section 626.04, hearing law enforcement testimony and receiving exhibits ex parte, and deciding the motion expeditiously,” the court said.

Good faith

The court went on to determine that the District Court did not err in finding that the property was being held in good faith as evidence. “The district court had the opportunity to hear the testimony of the investigating detective, to observe his demeanor, and to consider the search warrants issued by two other district court judges,” Lillehaug wrote.

It also was not error to refuse to order the immediate return of the property. Although the Supreme Court held in O’Connor v. Johnson in 1979 that a warrant to search an attorney’s office was unreasonable, that case did not involve suspected wrongdoing by the attorney. The target was the attorney’s client.

“Certainly searches of offices of attorneys targeted in criminal investigations raise many concerns, and we share these concerns. We may have occasion to announce guidelines for such warrants, including how client files — paper and digital — may be searched. But the expedited proceeding in this case, with a petition under section 626.04 based on only the first warrant, unsupported by affidavit or testimony, and with a limited factual record, is not the appropriate occasion,” Lillehaug wrote.

The court said that the parties, the intervenors and amici have raised constitutional and privilege issues that were not fully litigated in District Court. Those issues included the breadth of the warrants, precisely who was authorized to search and seize, and when, how, and by whom client files were actually searched.

“Our decision today is without prejudice to those issues as they may be developed in the pending criminal case. Nor does our decision prejudice potential civil claims. Today we decide only a narrow issue under section 626.04,” Lillehaug wrote.

Such a civil claim is on the horizon, since the decision does not resolve all the issues, said attorney Christopher Madel, who represents the John Doe plaintiffs. “Client files are the property of the client. Due process says government cannot deprive you of property without due process. The State provided no notice to KM’S clients that their files were taken. We heard of this case AFTER the court of appeals already ruled. The Supreme Court’s decision punted on the constitutional issue that the State can take a client’s file without any due process, and left us to file a lawsuit, which we intend to do now,” he wrote in an email to Minnesota Lawyer.