In recent days we have witnessed the President and various pundits scream (or tweet) that the attorney-client privilege is dead or under serious attack. What they are referring to, of course, is the judicially authorized search of Michael Cohen’s home, office and hotel room by the FBI. Cohen is said to be one of the President’s long-time attorneys.
By way of background, the attorney-client privilege has long been recognized and protected by the courts as it serves two legitimate and essential functions.
First, it promotes and encourages clients to be truthful with their lawyers. A lawyer cannot properly represent and counsel a client if the client withholds the material facts of her matter for fear that her conversations are not protected and confidential.
Second, since a client cannot be compelled to testify against herself under the protections of the Fifth Amendment, that protection would be circumvented if the client’s attorney could be compelled to reveal what the client had said.
In order to properly analyze the Cohen search, one needs a basic understanding of the attorney-client privilege – what it protects and what it does not.
The attorney-client privilege protects conversations and communications (documents, emails, texts, etc.) between an attorney and his client while engaged in providing legal advice on a specific matter. The communications must be related to the scope and purpose of the legal engagement. In addition, only communications between the lawyer, his staff and the client are protected. If the client speaks about the protected matters with third parties, the client has waived the privilege as to those communications.
For example, the client hires an attorney to represent her in a criminal investigation. Anything the client tells the attorney about what she has done in the past regarding the scope of the investigation is privileged and protected. However, if the client discusses the same topic with her friends, or her accountant, or her family, she has waived that privilege and the non-attorneys that she disclosed that information to can be compelled to reveal those communications.
Communications with her attorney are not protected if they are in furtherance of an on-going crime or future planned crimes. The so-called “crime-fraud exception” allows the government to access communications between an attorney and his client if the client is using the attorney’s services to commit a crime, whether the attorney realizes it or not. A common example is when a client uses her attorney to help draft and submit an affidavit to the court that contains false statements. The client has used the attorney to commit a crime. If the government can demonstrate to the court that there is a sufficient basis to believe that a crime has occurred, then the attorney can be compelled to testify as to his interactions with the client. Other examples may include when a client uses an attorney to set up a shell company and that company is used by the client to defraud others. The crime-fraud exception applies when a lawyer’s advice is used to further the crime, whether the lawyer is knowingly involved or, as is most often the case, unwittingly used.
In Cohen’s case, a neutral and detached magistrate-judge reviewed a detailed affidavit from the FBI asserting facts that the judge found to establish probable cause to believe that crimes were committed and that evidence of those crimes would be located at the various locations searched. In addition, sufficient facts would have been provided to demonstrate, at least at this stage, that the evidence cannot easily be obtained through other means and that the government will utilize sufficient efforts to protect the valid attorney-client privileged communications and documents it may recover in the search. That is accomplished in most cases by using a “taint team.” The taint team is comprised of Assistant U.S. Attorneys who are not involved in the investigation and prosecution to review all the evidence seized and pass along to the prosecutors only the information that is demonstrably not subject to a privilege claim.
With these basic principles in mind, the Cohen case presents some fascinating legal issues because the facts are just so unusual. First, it seems that Cohen was not engaged in the full-time practice of law. He seemingly had only a handful of clients, including President Trump, Republican fundraiser Elliot Brody and Fox TV Personality Sean Hannity. Of those three, he negotiated non-disclosure agreements to pay a former porn star and a former Playboy Playmate to not reveal their affairs with Trump and Brody. Other than that, Cohen claims that his practice was limited to providing “strategic advice and business consulting” to his limited client base. Thus, the government has argued that very little of what was seized may actually be protected by the attorney-client privilege. Reporting also indicates that Cohen spends considerably more time working on his various business ventures than representing clients on specific legal matters. It may turn out that Cohen’s possible criminal conduct in his own business dealings, rather than his conduct on behalf of clients, resulted in most of the probable cause contained in the affidavit for the search warrant.
Robert Stahl, and his firm,Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at firstname.lastname@example.org.