TX14: Client had standing to object to seizure of her files from her attorney’s office for his misapplication of her fee into trust account

A search warrant was executed on a divorce lawyer’s office for some client files after a $75,000 retainer was paid into the IOLTA account which had a -$49,000 balance. The district court erred in holding the client had no standing in her own files in the attorney’s office. There was probable cause for the search warrant to seek to prove the lawyer’s alleged crime of misapplication of funds of the client. The Houston County DA’s office was using a taint team to separate the client files. In re Cook, 2020 Tex. App. LEXIS 1563 (Tex. App. – Houston (14th Dist.) Feb. 25, 2020):

The attorney-client privilege is personal to the client, and the right to waive the privilege belongs solely to the client. Bailey v. State, 507 S.W.3d 740, 745 (Tex. Crim. App. 2016); Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Cook also has right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-22 (Tex. 2004) (orig. proceeding) (per curiam) (defendant asserting work-product privilege in addition to attorney-client privilege). Furthermore, a client owns the contents of his or her file. McCann, 422 S.W.3d at 705. Cook owns her files, and she has standing to assert her rights to her property and the attorney-client and work product privileges.

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We conclude there was probable cause to search Cook’s files to investigate offenses Woodfill allegedly committed with Cook’s retainer. According to Vaclavik’s affidavit, Cook’s retainer check was deposited into Woodfill’s IOLTA account and was used to cover a negative balance in the IOLTA account. Vaclavik further described the amount of the retainer that had been expended on Woodfill’s representation of Cook as compared to the amount of the retainer that was used for purposes not related to Cook’s divorce case. The warrant to search Cook’s files is specific as to the investigation of Woodfill’s alleged crimes.

Courts have upheld search warrants under similar circumstances. In United States v. Lebovitz, a search warrant permitted the seizure of 25 client files from a law firm’s office. 506 F. Supp. 249, 250-51 (W.D. Pa. 1980). The affidavit stated the defendant attorneys and their firm represented clients who were involved in accidents in claims against insurance companies. Id. at 250. The affiant interviewed the doctor to whom the clients were referred for treatment. Id. The doctor stated that he furnished the attorney and the firm with false and inflated medical bills and physicians’ reports. Id. The doctor further stated that on two or three occasions, one of the attorneys came to the doctor’s office to obtains bills and physicians’ reports on the clients and the doctor prepared inflated bills and reports in the presence of that attorney. Id.