In the last day, I've heard a number of analyses of attorney client privilege and how it is impacted in the case of Michael Cohen (President Trump's attorney). To say the least, most of the people on TV talking about attorney-client privilege have no idea what they are saying. Much of the coverage is a joke.
Here's a simple rule: if a person consults an attorney seeking legal advice that communication is privileged. No one, including the government, can obtain those communications unless the person consents. If that person provides information to the attorney so that he or she can formulate the legal advice, those communications are also privileged. The only meaningful exceptions to the rule are that a communication is not privileged if the subject is in furtherance of future or ongoing criminal activity. Also, if the attorney is not acting as an attorney, his or her status will not cloak the communication with privilege.
What does this mean? If a client tells his attorney that he robbed a bank last week, that is privileged. If he tells his attorney that he plans to rob a bank next week, that is not privileged. If the attorney enters into a business deal with a client to buy a building, those business discussions are not privileged. If the attorney is part of a group carrying out illegal activities then the discussions are not privileged.
It's important to remember, however, that the attorney client privilege is not lost for all communications just because one or more fall outside of the privilege. If a person tells his lawyer that last week he robbed a bank and then in the next conversation he tells the lawyer that he plans to rob another bank next week, only the second conversation loses its privileged status.
So what does this mean in the case of Michael Cohen?
1. The FBI seized his records including much material that was communications with his clients. Normally, these would be privileged and the FBI action would be improper.
2. There are allegations that Cohen may have engaged in illegal activity. Even were it proven that these allegations are true, the communications between Cohen and his clients would still be privileged unless those communications were part of the commission of a crime. In other words, if Cohen was engaged in criminal activity involving taxi medallions in New York City, Cohen's communications with President Trump remain privileged unless Trump was also part of the taxi mess and engaged with Cohen in criminal activity. That means that all those reporters who keep talking about how privilege disappears if the attorney engages in criminal activity don't understand what they are saying.
3. The privilege belongs to the client, not the attorney. That means in effect that before the government can get documents that appear to be attorney client communications, it has to show that the client was involved in criminal activity. The lawyer's conduct won't deprive the client of the protection of the privilege. To date, there is no evidence of any wrongdoing by Trump, so there is no way that this privilege was lost.
4. The identification of Sean Hannity as a client of Cohen is just so much more nonsense. There is no basis under which records of communications between Hannity and Cohen can be revealed.
Here's a simple rule: if a person consults an attorney seeking legal advice that communication is privileged. No one, including the government, can obtain those communications unless the person consents. If that person provides information to the attorney so that he or she can formulate the legal advice, those communications are also privileged. The only meaningful exceptions to the rule are that a communication is not privileged if the subject is in furtherance of future or ongoing criminal activity. Also, if the attorney is not acting as an attorney, his or her status will not cloak the communication with privilege.
What does this mean? If a client tells his attorney that he robbed a bank last week, that is privileged. If he tells his attorney that he plans to rob a bank next week, that is not privileged. If the attorney enters into a business deal with a client to buy a building, those business discussions are not privileged. If the attorney is part of a group carrying out illegal activities then the discussions are not privileged.
It's important to remember, however, that the attorney client privilege is not lost for all communications just because one or more fall outside of the privilege. If a person tells his lawyer that last week he robbed a bank and then in the next conversation he tells the lawyer that he plans to rob another bank next week, only the second conversation loses its privileged status.
So what does this mean in the case of Michael Cohen?
1. The FBI seized his records including much material that was communications with his clients. Normally, these would be privileged and the FBI action would be improper.
2. There are allegations that Cohen may have engaged in illegal activity. Even were it proven that these allegations are true, the communications between Cohen and his clients would still be privileged unless those communications were part of the commission of a crime. In other words, if Cohen was engaged in criminal activity involving taxi medallions in New York City, Cohen's communications with President Trump remain privileged unless Trump was also part of the taxi mess and engaged with Cohen in criminal activity. That means that all those reporters who keep talking about how privilege disappears if the attorney engages in criminal activity don't understand what they are saying.
3. The privilege belongs to the client, not the attorney. That means in effect that before the government can get documents that appear to be attorney client communications, it has to show that the client was involved in criminal activity. The lawyer's conduct won't deprive the client of the protection of the privilege. To date, there is no evidence of any wrongdoing by Trump, so there is no way that this privilege was lost.
4. The identification of Sean Hannity as a client of Cohen is just so much more nonsense. There is no basis under which records of communications between Hannity and Cohen can be revealed.
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