Q&A: Attorney-client privilege is a privacy shield, but not for continuing crimes
The attorney-client privilege is not written into the U.S. Constitution or federal law, but it is “one of the oldest recognized privileges for confidential communications,” then-Chief Justice William H. Rehnquist wrote 20 years ago.
“The privilege is intended to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.”
But it is not an absolute or unlimited protection for privacy, he added, saying it should be “interpreted in the light of reason and experience.”
Rehnquist spoke for the Supreme Court in 1998 when it upheld a privilege claim by a Washington lawyer who had taken notes when a deeply troubled White House deputy counsel, Vincent Foster, came to see him. Less than two weeks later, Foster committed suicide and independent counsel Kenneth Starr went to court years later demanding to see the notes. By a 6-3 vote, the Supreme Court refused, saying that the shield of confidentiality did not die with the client.
But at other times in that era, the justices sided with the independent counsel and decided President Clinton’s White House lawyers could not invoke the attorney-client privilege to shield their conversations or notes.
The issue arose again this week as the FBI raided the New York offices of President Trump’s personal attorney, Michael Cohen. Investigators reportedly were looking for information about payments made by Cohen to women alleged to have had affairs with Trump, including adult-film actress Stormy Daniels.
“Attorney-client privilege is dead!” a furious Trump tweeted Tuesday.
Here’s a primer about the legal protection and how it may affect the current federal inquiries:
So what is the purpose of the attorney-client privilege?
It allows clients who have a legal problem to talk candidly with a lawyer. Under ordinary rules, any person who has witnessed or heard about a crime can be required to testify about it. But if that ordinary rule applied in law offices, no one would feel comfortable speaking to a lawyer because it could result in confessing to a crime.
While the privilege is seen as necessary for legal practice, “there has always been some anxiety about the privilege,” legal scholar and ethics expert Geoffrey Hazard once wrote. It is “not only a principle of privacy, but also a device for coverups.”
What are the limits to the privilege?
The most commonly cited limit is the “crime-fraud exception.” Generally, a lawyer and his client cannot be compelled to talk about past crimes. But if the lawyer is working with the client to carry out a continuing or future crime — for example, by preparing a false document or to pay off a witness — their dealings are probably not shielded.
Legal experts also say the privacy privilege covers only specific legal matters and advice, and not all of the possible discussions between a lawyer and a client.
“Why is this relevant? Because President Trump has said quite publicly that he did not know what Cohen was doing with respect to the alleged payments to the actress known as Stormy Daniels, payments that appear to be at the core of [New York] investigation,” wrote Washington lawyer Paul Rosenzweig on the Lawfare blog. “He has said he was unaware of the payments and did not know why they were made (and suggested that the press had to ‘ask Michael’ about them). If this is true, then it seems that Trump could not have an attorney-client relationship with Cohen regarding the Daniels payment.”
Do investigators often seek to search an attorney’s office if they see evidence of a crime?
No. “It is extremely rare to get a search warrant for a law office. Nothing so high profile occurs to me,” said New York University law professor Stephen Gillers, a recognized authority on legal ethics. “Prosecutors instead use subpoenas or simple requests. So here there must have been fear that items would be destroyed.”
The U.S. Attorneys’ Manual authorizes searches of law offices but sets special rules and procedures. Investigators are urged to first consider a subpoena, which is a request for information. Before seeking a search warrant from a judge, investigators must also obtain “authorization by a U.S. attorney (in this instance, in New York) or Assistant Attorney General” in Washington, according to the manual. “During such a search, the government may encounter material protected by a legitimate claim of privilege. It is important that close control be exercised over this type of search,” it says.
Who decides whether material seized is protected by privilege or is evidence of a crime?
The Justice Department’s manual says it will have others take the first look. “To protect the attorney-client privilege, … a ‘privilege team’ should be designated, consisting of agents and lawyers not involved in the underlying investigation.” Their task is to protect “privileged material” or “defense strategy” from being disclosed to the agents or prosecutors.
If investigators find evidence of other possible crimes, can they use it or turn it over to special counsel Robert S. Mueller III?
Most legal experts say the answer is yes, but only after judges rule on objections.
“The judge would have identified what could be seized,” Gillers said. “Other items can be seized if without having looked for them, the search uncovers other items that show criminality. The safest course then would be to seize them and go back to the judge for authority to inspect them.”
In Cohen’s case, his defense lawyers will almost surely take the fight to court and argue that items that go beyond the terms of the search warrant should be shielded and returned to him.
On Twitter: @DavidGSavage
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