Law Firm Did Not Have to Hand Over Client’s Cell Phone – In the Matter of a Grand Jury Investigation

In the case of In the Matter of a Grand Jury Investigation, a certain law firm agreed to represent a client in April 2013. At the time, the client was under investigation by a grand jury, but an indictment had not yet been issued.

According to allegations by the Commonwealth, the client gave his cell phone to the law firm a couple of months later in connection with the firm’s representation of him. Nearly a year after the firm undertook its representation of the man, the Commonwealth sought judicial approval for a grand jury subpoena forcing the law firm to turn over the man’s phone.

The Decision in the Trial Court

The trial judge initially denied the Commonwealth’s motion but did so without prejudice to refiling, suggesting that he would allow the subpoena if the Commonwealth could establish probable cause as required under the Fourth Amendment. He also indicated that this could be established via an ex parte proceeding. At a later hearing, the trial judge granted the Commonwealth’s motion for judicial approval of a grand jury subpoena to the law firm. However, the judge stayed the issuance and execution of the subpoena so that the client could seek relief from the county court under Mass. Gen. Laws ch. 211, § 3.

Intervention by the Law Firm

After the client sought relief from the county court, the law firm sought to intervene in the matter, submitting an affidavit to the effect that it would not comply with a subpoena. The law firm admitted that this could subject it to a finding of contempt. The justice reserved and reported the matter to the court.

The Full Court’s Decision

Upon consideration, the court reversed the trial court’s decision, holding that the attorney-client privilege prevented the law firm from being compelled to produce the client’s phone. The court further found that the protection under the attorney-client privileges could not be set aside based on a showing of probable cause by the Commonwealth.

Noting that both its review of questions as to the validity of an assertion of the privilege against self-incrimination and its review of a decision involving the attorney-client privilege were de novo, the court concluded that the trial court’s issuing of the subpoena was improper. In so holding, the court relied upon the principles of the privilege against self-incrimination guaranteed by the Fifth Amendment, the act of production doctrine contained in Article 12 of the Massachusetts Declaration of Rights, and the attorney-client privilege.

How to Contact an Experienced Attorney to Help with Your Case

Since technology is ever-changing, so are the laws concerning technological devices such as cellular telephones, tablets, and computers. Staying abreast of the current state of the law is very important, since so much of our lives is contained in our devices these days. If you are facing criminal charges or need an attorney to represent you concerning an automobile accident or other injury case, you need an attorney who is dedicated to staying current on legal developments and who will work hard to represent you zealously and aggressively. Call the law firm of John C. Manoog, III at 888-262-6664 today to speak with an attorney in the Cape Cod area about your legal matter.

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