Shortly after the Federal Bureau of Investigation (FBI) raided the New York office and hotel room of President Donald Trump’s personal lawyer, Michael Cohen, the president tweeted that attorney-client privilege was “dead.” According to news reports, the federal agents were seeking records regarding women who allegedly received payments in exchange for their silence. This is after claiming they had affairs with the current president. It is likely that an entire legal team, which consists of assistant U.S. attorneys, support staff, and FBI analysts, will have to painstakingly go through all of the government-seized documents from Cohen and set aside any communication that is covered by the attorney-client privilege.
Attorney-Client Privilege Explained
Attorney-client privilege is a legal concept whose purpose is to keep communications between a client and his or her attorney secret. This privilege is usually asserted after a lawsuit is filed and a demand is made by the other side for information. Courts provide strong protections for attorney-client privilege communications. This protection is different from an attorney’s duty of confidentiality. That being said, there are exceptions to this privilege.
Because of the long-held tradition of protection of attorney-client privilege communications, there are specific processes in place to access them that are less invasive than a government seizure. For example, there is a preference to requesting these documents be handed over voluntarily or for issuing a subpoena to compel production of the communications. If the government believes the less intrusive means could result in the destruction of evidence or could compromise a criminal investigation or prosecution, then a search and seizure is deemed appropriate. The government will ask a “privilege team” that works separate from the investigation team to remove all attorney-client privileged information so that the investigative team never sees these communications. If they do, a case may be dismissed.
Check Your Privilege
It is rare for investigators to be able to comb through files, wheher they are electronic or otherwise, that are held in a typically off-limits attorney’s office, but that is what has happened in the case of Michael Cohen. Materials that are privileged would benefit from additional protection and remain private. Others may still be exposed even if they are attorney-client privileged because they fall into an exception, such as the crime-fraud exception. If the attorney-client communication was made by the client with the intent of covering up or committing a crime or fraud, the communication loses its protection. This exception is applicable if the client was either intending to commit a criminal or fraudulent act or if he or she was in the process of doing so and communicated with the attorney with the intent to further the fraud or crime, or to cover it up completely.
As practicing lawyers, it is imperative to understand the rules that govern communications with your client and what your obligation