Is the Attorney Client Privilege Over? Here’s What You Need to Know

President Trump Tweeted that the “Attorney client privilege is dead” after the FBI conducted a raid at the office of Michael Cohen, a New York lawyer and legal representative of Trump. The President is well known for his Tweets, and later continued to tell his Twitter following that “I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided,”. He added, “All lawyers are deflated and concerned!” 

Those who follow Trump, including thousands of lawyers, had plenty of questions after his bold Tweets; namely whether or not what he said had any real truth. Before discussing what the attorney client privilege is, it will be important to understand why the offices of Attorney Michael Cohen were raided. Here’s a few fast facts:

• Michael Cohen is one of Trump’s lawyers.
• The legal FBI raid followed a discovery of evidence by Robert Muller, who is on the special counsel investigating an alleged collusion between Russia and the last election.
• Some say the raid targeted Cohen’s involvement with payments to an adult film star who allegedly had an affair with Trump in 2006.
• He has worked with Trump for more than a decade and was the executive VP and special counsel at the 2007 Trump Organization.
• A Federal Judge has denied Trump’s request to review the seized records before prosecutors view them.

Lawyers and law professors have weighed in their opinion on the matter, with the majority saying that what happened in the Cohen investigation is within the Federal Law, and does not impact the legislation regarding the client attorney privilege. Trump might be upset with what happened, and was quick to speak his mind; however, most people are not sharing his same opinion.

To better understand what the client attorney privilege is, consider the following:

Why the Client Attorney Privilege Exists?

The client attorney privilege is meant to encourage a client to disclose all relevant information to their lawyer. This enables the lawyer to provide candid advice and better legal representation. It does not exist, however, when client is/was using the attorney to commit fraud or a crime. Furthermore, it does not apply when the client has secured legal advice. In other words, if a person calls a lawyer for a free consultation, and the lawyer recommends something, a client privilege relationship has not been established. Rather there should be an spoken, written, or digital agreement that suggests the formation of the relationship. Bare in mind that the agreement does not have to be formal. It could be a simple as a client giving the “go ahead” to the attorney over the phone.

The client attorney privilege does not apply when a third person is present, but is not needed by the attorney. Finally, if a attorney is charged with a breach or wrongdoing because of work for a client, he or she can disclose privileged information in order to defend themself.

Protecting the Identity of the Client

In general, the identity of a client is not protected in the privilege. It is possible for the court to say otherwise, but this would be a special circumstance that might involve minors or a person who is in the witness protection program. In the matter of the Cohen case, nothing has risen that would present this kind of circumstance.

It it Common for the FBI or Other Authorities to Raid an Attorney’s Office?

No, it is very rare for an attorney’s office to be raided by any authority. In general an attorney is given a request or subpoena for documents if they are believed to be holding evidence or information. Getting a warrant to raid Cohen’s office would take the approval from someone who is “high up” in the government. In this case from Deputy Attorney General Rod Rosenstein.

Prosecutors also would have been required to show the Federal court that there was probable cause and the need for a warrant rather than a subpoena. More than likely it was suspected that Cohen would destroy evidence. The probable cause would have also had to relate to a crime committed by Cohen, not Trump or another party. Furthermore, a “taint team” would have been called upon to review all of the records before they are given to prosecutors. The reason for this is so that those working the case do not review any material that could taint the client attorney privilege. The only way for a prosecutor to examine material that could be within the client attorney privilege is if the taint team and/or court finds it to be part of a crime jointly undertaken between the attorney and a client.

Do You Have to Worry About Your Client Attorney Privilege?

At this time, you do not have to worry about your client attorney privileges unless you are knowingly committing a crime or fraud, and rendering the services of a lawyer to help you.

If you would like to learn more about this privilege, call Jim Higgins from The Higgins Firm at 800.705.2121.