How to Use (and Keep) Attorney-Client Privilege
Seven months ago, FBI agents raided the office and temporary residence of Michael Cohen, President Trump's personal lawyer. Investigators seized virtually every document and electronic device in Cohen’s possession.
Not surprisingly, President Trump was irate. A few hours after the raid, he tweeted, “Attorney-client privilege is now a thing of the past.”
But is it really?
The idea that you may confide freely with a legal advisor without fear that person will inform others began with the Romans. The concept arrived in the British Isles when Rome invaded in 55 B.C. The British brought their law with them when they colonized North America. So the US and Canada inherited English law and, with it, attorney-client privilege.
As the client of an attorney, you "hold" the privilege. You have the right to refuse to disclose and to prevent others from disclosing all confidential communication between you and your attorney. The attorney may not violate this obligation without your consent.
But there are many exceptions to attorney-client privilege. One exception is if prosecutors obtain a search warrant to search a lawyer’s office for evidence of a crime or crimes.
That’s what tripped up Michael Cohen.
Investigators applied for and obtained a search warrant. Then they carted off the contents of his home and office, including two phones and an iPad. A so-called taint team reviewed these items before turning them over to the investigators. This was done to avoid the possibility that investigators would see documents subject to attorney-client privilege.
However, the taint team concluded that only a tiny percentage of the documents seized were privileged. Only 148 of the 291,770 items found on the phones and iPad were privileged. And 14 out of 639 seized physical documents were deemed privileged.
In light of these events, it would be easy to agree with President Trump that attorney-client privilege is dead. It’s not, but it’s substantially weaker than it was, say, a century ago.
In the early 20th century, a doctrine known as the crime-fraud exception to attorney-client privilege came into effect across the US. The essence of this doctrine is that any help an attorney provides in planning future illegal acts is not privileged. Discussions about prior wrongdoing are protected, so long as the attorney isn’t involved in a cover-up.
The crime-fraud exception makes it dangerous for you ask your attorney about the legal limits of a course of action without fear of being exposed. At what point do probing questions become plans for future illegal acts?
It’s even more dangerous for the attorney. An attorney who answers such questions honestly could be prosecuted for engaging in a criminal conspiracy with the client.
Still, attorney-client privilege remains a valuable aid to keep your planning private. You're in the strongest position to assert attorney-client privilege if you retain an attorney before discussing confidential matters. Thus, when you approach an attorney, inform them that you're considering legal representation.
Attorney-client privilege usually extends to anyone to whom your attorney delegates responsibility. The attorney's secretary and non-attorney associates in the firm will ordinarily be included. Individuals outside the firm working under the attorney's direction are also bound to protect privileged information.
But it's easy to waive attorney-client privilege. Here are some possible situations:
If you disclose information that your attorney conveyed to you in confidence or that you conveyed to your attorney to others.
If someone who isn't a client, employer, or under contract to the attorney participates in a conversation between you and your attorney.
If your engagement with an attorney involves tax planning, especially planning construed by the IRS as a tax shelter.
If written communications to and from your attorney fail to contain a statement stipulating that they are confidential and subject to attorney-client privilege.
It’s important to note that discussions with an attorney someone else is paying for (e.g., your employer) may not be protected. In any kind of investigation by your employer or a government agency, hire your own attorney. Don't rely on the "free" advice provided by an attorney employed by someone else. A lawyer hired by another party will not always treat your disclosures as privileged.
Want to know more about attorney-client privilege and its limits? I recently wrote an article for Nestmann Inner Circle members on this topic. Members can retrieve it at this link. Not a member? Find out about the many benefits of Inner Circle membership here.
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