A law firm received a cell phone from a John Doe client under investigation. The state sought the cell phone by subpoena because of a state statutory prohibition against law office searches. Mass. G.L. c. 276, § 1. The phone in the hands of the law firm was still for the purposes of seeking legal advice. There is no indication, on this limited record, that the law firm will destroy the evidence or keep it indefinitely. The state cannot simply use a search warrant to obtain the phone, yet. [See Treatise §§ 26.02–26.09. particularly § 26.04] In re a Grand Jury Investigation, 470 Mass. 399, 22 N.E.3d 927 (2015):
The Commonwealth contends that the telephone belonged to John Doe, the target of a grand jury investigation; that it was transferred from Doe to the law firm to obtain legal advice; and that it contains in the information stored on its memory, particularly in its record of text messages, evidence of a crime under investigation by the grand jury. The Superior Court judge determined that, while a subpoena served on Doe would violate his right against self-incrimination, and a subpoena served on the law firm would violate the attorney-client privilege, a subpoena compelling the law firm to produce the telephone could be served upon an ex parte showing by the Commonwealth of probable cause sufficient for the issuance of a search warrant. We conclude that, on the record before us, the attorney-client privilege protects Doe against compelled production of the telephone by the law firm, and that the protection afforded by the attorney-client privilege may not be set aside based on a showing of probable cause. We therefore reverse the Superior Court judge’s order.
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Finally, the Commonwealth seeks to distinguish between the telephone as “physical evidence” and the concededly documentary materials that the telephone contains. The Commonwealth insists that it “only sought a grand jury subpoena for production of the physical item of evidence,” and asserts that, once it acquires the telephone, “it will seek a search warrant to authorize a forensic examination of the device.” But if we were to embrace this distinction, the result would empty the Fisher rule and the act of production doctrine of any effect: the Commonwealth could compel the production of any document based on the assertion that the subpoena was directed merely at the document as a “physical item” — an amalgam of paper, binding, and ink — and that it would get a separate search warrant before actually opening the document and reading the pages.
The extrajurisdictional case law that the Commonwealth cites in support of its distinction between the telephone as a “physical item” and the telephone’s contents almost exclusively involves items — typically either the instrumentalities or proceeds of crime — whose evidentiary value to the prosecution had nothing to do with their communicative contents. See In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (stolen money and sawed-off shotgun); Hitch v. Pima County Superior Court, 146 Ariz. 588, 590 (1985) (wrist watch allegedly stolen from victim); People v. Lee, 3 Cal. App. 3d 514, 521, 524-525 (1970) (bloody shoes); Anderson v. State, 297 So. 2d 871, 871 (Fla. Dist. Ct. App. 1974) (stolen dictaphone and calculator that defendant was alleged to have received before turning over to attorney); Rubin v. State, 325 Md. 552, 565 (1992) (gun and bullets allegedly used in murder); People v. Nash, 418 Mich. 196, 216 (1983) (wallet allegedly taken from victim and revolver, ammunition, and holster allegedly used in killing); Commonwealth v. Stenhach, 356 Pa. Super. 5, 10 (1986) (broken stock of rifle allegedly used in killing); State ex rel. Sowers v. Olwell, 64 Wash. 2d 828, 829 (1964) (knives allegedly used in crime). But see State v. Bright, 676 So. 2d 189, 193-194 (La. Ct. App. 1996) (diary).
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d. Availability of a search warrant under G. L. c. 276, § 1. Although the Commonwealth has consistently sought to acquire the telephone via a subpoena, it does indicate that, if we decline to authorize the issuance of a subpoena compelling the law firm to produce the telephone, it “will seek a search warrant to seize the evidence from the law firm.” Even if the Commonwealth were to pursue that approach, however, it would not gain any support from the provision of G. L. c. 276, § 1, preserving “powers of search and seizure.” That provision precedes, rather than follows, the paragraph prohibiting searches of documentary evidence in the possession of lawyers. See G. L. c. 276, § 1. The latter paragraph opens, “Notwithstanding the foregoing provisions of this section,” making it clear that it in fact does limit the powers of search and seizure. See id. Indeed, because the paragraph prohibits the issuance of search warrants for documentary evidence except under certain narrowly drawn circumstances, it plainly does “abrogate, impair, or limit powers of search and seizure granted under other provisions of the General Laws or under the common law.” Id.
The Commonwealth offers two reasons why a search for the telephone would not violate the restrictions that G. L. c. 276, § 1, imposes on searches of law offices. First, the Commonwealth asserts that the search and seizure it contemplates is not for any “documentary evidence,” and thus falls outside the scope of the statute. Second, the Commonwealth contends that, even if the statute did apply to the contemplated search for the telephone, the search falls within the statute’s exceptions for situations where “documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” G. L. c. 276, § 1. We address each in turn.
i. The Commonwealth’s first argument is easily dismissed. General Laws c. 276, § 1, contains a broad definition of “documentary evidence.” It provides that, “[f]or purposes of this paragraph, ‘documentary evidence’ includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films or papers of any type or description.” Id. The Commonwealth concedes that “the modern cell phone may contain any and all of the above listed categories of evidence.”
The Commonwealth’s contention that a search for the cellular telephone would not constitute a search for “documentary evidence” relies upon the same misplaced distinction between the telephone as a “physical item” and the telephone’s undeniably documentary contents that the Commonwealth advances in arguing that the Fisher rule does not apply, and the distinction fails here for similar reasons. …
ii. The Commonwealth next asserts that a search warrant may issue in this case because “there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” For several [*29] reasons, we are unconvinced by the Commonwealth’s argument that, “in the event that the Commonwealth cannot otherwise obtain the item, the evidence will effectively be ‘secreted’ and ‘lost.'”
The interpretation offered by the Commonwealth diverges from any accepted definition of “secreted” or “lost.” An item is “secreted” when it is “hid[den],” “conceal[ed],” or “remove[d] from observation or the knowledge of others”; an item is “lost” when it is “not be found; missing” or “no longer held or possessed; parted with.” Webster’s New Universal Unabridged Dictionary 1640, 1069 (2d ed. 1983). The Commonwealth’s argument would require that we add to these familiar definitions a new, distinctly unfamiliar definition: “unobtainable by law enforcement because of the combined effect of a legal privilege and a statute.”
The interpretation offered by the Commonwealth, moreover, ignores the statute’s requirement for a factual showing. To obtain a search warrant for a lawyer’s office, the prosecutor must make a showing of “probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue,” or that “there is probable cause to believe that the lawyer … in possession of such documentary evidence has committed, is committing, or is about to commit a crime.” G. L. c. 276, § 1. Under the interpretation urged by the Commonwealth, this requirement of a factual showing of probable cause disappears. Instead, whether an item is “secreted” or “lost” becomes a purely legal issue, on which the Commonwealth can prevail simply by showing that the lawyer holding the evidence has invoked a privilege against compelled production.
The Commonwealth’s overarching contention is that the exception applies to any situation where the application of G. L. c. 276, § 1, renders documentary materials whose contents are not themselves privileged unobtainable by law enforcement. Nothing in the language of the exception supports this view, and it gains no support from the legislative history of the act that amended G. L. c. 276, § 1, to add the provision at issue here.
The legislative history indicates that the provision was inserted for two main reasons. …
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Accordingly, we reject the Commonwealth’s contention that documentary evidence is “secreted” whenever an attorney invokes the Fisher rule to resist its compelled production. Instead, we conclude that the exception applies, as it says, only where “there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” As indicated, this is a fact-specific determination. Were the Commonwealth to seek a search warrant on the same record that was before the Superior Court judge in March, 2014, when the Commonwealth moved for judicial approval for a subpoena, it would not satisfy the “secreted” exception. At that time, the Commonwealth agreed that the telephone had been given to the law firm for purposes of acquiring legal advice. Nothing in the record suggests that in March, 2014, the law firm was no longer engaged in providing the requested advice. The privileged retention of client documents in such circumstances cannot be said to be the secretion of those documents. Hence, in this case, on this record, there is no evidence suggesting secretion of the documents. We leave for another day the question whether and under what circumstances the prolonged retention by counsel of client documents unprotected or no longer protected by any privilege might qualify as secreting under the meaning of G. L. c. 276, § 1.
Notwithstanding the foregoing, we are mindful of the concern that, if evidence possibly obtainable via a search when it was in the client’s hands were to become immune from both search and subpoena when placed in an attorney’s hands, the result will be, as the Superior Court judge noted, “a race … to the lawyer’s office.” We make several observations.
First, G. L. c. 276, § 1, only operates to bar the search of an attorney’s offices in a narrow set of circumstances. The statute is limited to searching for documentary evidence and would not typically encompass situations where a client seeks to hide the instrumentalities or proceeds of a crime at an attorney’s office. While the telephone at issue here constitutes “documentary evidence” under the statute, the statute also provides explicit exceptions for circumstances where the evidence “will be destroyed, secreted or lost in the event a search warrant does not issue,” or for circumstances where the holder of the evidence “has committed, is committing, or is about to commit a crime.”
Second, it is the act of producing the telephone by the law firm, rather than the telephone itself, that is covered by the attorney-client privilege. The client’s right against compelled production by his or her attorney is not absolute. To fall under the Fisher rule, materials whose contents are not themselves privileged must have been transferred to counsel “for the purpose of obtaining legal advice.” Fisher, 425 U.S. at 404. Accordingly, when a client transfers materials to an attorney for purposes of shielding them from law enforcement’s reach, the Fisher rule offers no protection.
Third, nothing we have said suggests that a lawyer, having received materials whose contents are not themselves privileged for purposes of rendering legal advice, may retain such materials indefinitely, absent a continuing bona fide need and purpose related to the provision of legal advice. Any assessment of whether and, if so, when client materials would cease to be protected by the Fisher rule is, of course, a complex matter, involving factual determinations that will depend on the specific circumstances presented. Because the Commonwealth has never argued that either Doe’s initial transfer of the telephone or the law firm’s continued retention of it are not justifiable “for the purpose of obtaining legal advice” under Fisher, and the parties have not provided briefing on the issue, we do not address the availability of a subpoena compelling the production of evidence in other circumstances.
3. Conclusion. Confining ourselves to the record that was before the Superior Court judge in March, 2014, we conclude that Doe’s attorney-client privilege protects against compelled production of the telephone by the law firm. We remand the matter to the single justice for entry of a judgment allowing Doe’s petition for relief under G. L. c. 211, § 3, ordering the Superior Court to reverse the order approving the issuance of a grand jury subpoena duces tecum, and for such other proceedings as are consistent with this opinion.
