Ore. Judge Orders Police to Return Lawyer's Papers

By Phil Cogswell | The Washington Post | October 18, 1979

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A judge today ordered the return of documents siezed from a lawyer's client file last week by Portland police.

Presiding Multnomah County District Court Judge Philip T. Abraham ruled the seizure violated the traditional protection accorded attorney-client communications.

The Oct. 10 police action, made under the authority of a search warrant issued by another district judge, had brought an immediate challenge from the American Civil Liberties Union, representing lawyer Milton Stewart. It also drew expressions of concern from the Oregon State Bar over what bar officials said was an intrusion into the attorney-client privilege.

More than 1,000 pages of documents were seized in connection with an embezzlement investigation involving one of Stewart's clients. Two lawyers sharing offices with Stewart have said they will seek dismissal of charges against clients in a pair of related cases because police looked through their files during the search.

Abraham's ruling came after a three-day hearing, during which officers indicated they had led District Court Judge Thomas Moultree to believe Stewart would not object to the seizure if a search warrent was obtained. Stewart said he had expected to be served instead with a subpoena for the documents, which he could then challenge in court.

Officers also said that Stewart suggested he would turn over the documents.

ACLU lawyers claimed in the hearing that police misled Moultre when they obtained the search warrent from him by claiming, in effect, that no attorney-client privilege was involved.

Abraham, however, said an affidavit supporting the search warrant was so general that "it permitted exactly what occurred. It would permit rummaging though files that very well may have been protected by the attorney-client relationship."

ACLU officials have said they are considering further legal action for damages against officers over the incident. Meanwhile, an attorney for the city of Portland said an appeal of Abraham's order was possible.

Abraham on Friday had taken the documents into his custody pending a decision on the request that they be returned, but testimony during this week's hearing raised the possibility that some of them had already been copied by officers.

ACLU officials said they did not know of another case where police had taken documents from a lawyer's client file.

Stephen Houze, one of three lawyers cooperating with the ACLU,termed Abraham's ruling "a resounding victory."

However, Tom Gordon, representing the city, said the seized materials was valuable as evidence and should not be released until the police had studied it. He said the police had a right to the information.

Abraham, however, said the affidavit supporting the search warrant was invalid because it did not show probable cause for believing a crime had been committed or that the evidence would be in Stewart's office. He noted that an affidavit for a search warrant, not yet executed, involving bank records in the same case, was much more specific than the one involving the lawyer's office.

Stewart said the judge's ruling was a decision that "citizens must be free to consult an attorney in confidence. That wouldn't be possible if police were allowed to obtain lawyer-client files in which those confidences are contained."