Whether a lawyer’s digital archive could be seized when the lawyer himself was charged with serious crimes.
Supreme Court order of 17 January 2018, HR-2018-104-A, (case no. 2017/1907), criminal case, appeal against order
A (Counsel Kim Ellertsen and Anders Brosveet) v. The public prosecution authority (Public prosecutor Katharina Rise)
Justices: Bårdsen, Bull, Arntzen, Kallerud, Tønder
In connection with investigation of a former lawyer, the police had seized a large number of digital files. The files were submitted to the district court for a decision as to whether they could be surrendered to the police, see the Criminal Procedure Act section 205 subsection 3. The Supreme Court, having heard the case in chambers, concluded unlike the court of appeal that the prohibition against seizure in the Criminal Procedure Act section 204 subsection 1, cf. section 119 subsection 1 was applicable, irrespective of whether the police, based on the nature of the files, could have been expected to have access to the files themselves, or the lawyer had sent the files to a public authority, including a court, and the police would have been able to access them there. It was deemed decisive that there is a difference between allowing the police to search for information at the recipient bodies and giving the police a joint and direct access to the digital files that make basis for the communication with the public authorities. A different system would also entail a risk that the police get access to information they are prohibited from accessing through seizure of a lawyer's files.