• What is Attorney-Client Privilege?

    Author : Criminal Defense Associates May 2, 2018

    With the recent FBI raids on President Trump's personal lawyer, Michael Cohen, the President has gone off on a bit of a Twitter tirade, at one point asserting that "attorney-client privilege is dead!" Yet, his tweet demonstrates that he does not appear to understand the full scope of what this privilege covers. And if the President does not know, it seems likely that other individuals will be confused, too. Therefore, the following is a primer on attorney-client privilege, particularly in the context of criminal investigations.

      Definition of attorney-client privilege?

      Essentially, the privilege requires a communication, made by the client to a lawyer that was made in confidence and for the purpose of obtaining professional legal advice (or services relating to legal advice).

      Derived from English common law, the privilege aims to encourage clients to openly communicate with their representatives. Essentially, communications that concern legal advice between a lawyer and his or her client, are protected. Evidence and the substance of these conversations cannot be used against the client in a court of law. But, of course, there are limits and exceptions to this principle.

      What are some exceptions to this privilege?

      The first one – and one that likely will apply to Mr. Cohen's case – is called the ‘crime-fraud' exception. If the client is engaging in a crime and asking the lawyer to help them cover it up, or if the lawyer themselves are committing a crime or fraud, then the privilege will not protect their communications. Mr. Cohen is reportedly under investigation for wire fraud, bank fraud, and campaign violations, and therefore, conversations between himself in his capacity as a lawyer and his clients will likely not be privileged.

      The bar for this exception is very high. There must be a showing that the work product or conversation was used in furtherance of the purported crime. Even compelling evidence of a crime is insufficient – there must be legitimate proof.

      Other times the privilege will not apply is when the client authorizes the lawyer to reveal conversations in order to more effectively represent them, for the lawyer to get advice on an ethical issue, or (less commonly) for a lawyer to assert a defense against a claim their client has brought against them. Of course, if there is a third-party present who is not part of the lawyer’s defense team, then the client has effectively waived this privilege because the conversation is no longer confidential.

      When can a federal agency search specifically for attorney-client communications?

      When it comes to the Justice Department, there are specific guidelines they must follow if they are executing a search warrant on a lawyer’s premises. First, obtaining a search warrant must be used only as a last resort. Prosecutors must try several other methods of getting the information before seeking a warrant, such as informal requests, or even a subpoena. It is not clear whether this was done before – and if not, why not. Some have opined that law enforcement will go straight to a search warrant if they have compelling evidence suggesting the lawyer or target of the subpoena will not preserve documents that are of interest to investigators.

      Next, a U.S. attorney or the head of the DOJ’s criminal division has to approve. The search warrant has to be narrowly tailored with specific documents envisioned. Additionally, once the warrant is actually executed, a special team of agents and lawyers is present to advise agents about what communications are off-limits. If privileged communications make its way into the search, then it can actually taint the entire investigation, rendering any evidence gathered useless.

      Most commentators agree that when a lawyer’s office is searched by the federal government, the prosecution must have an incredibly strong case for it to stand the multiple issues that come out of the attorney-client privilege. If Mr. Cohen’s office has been searched – without other options being explored first – this is an indication that the government’s case against him is nearly watertight.  

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