Attorney-client privilege in the news.
Recent events in the news have called attention to the meaning of the attorney-client privilege. On April 9, a federal magistrate judge issued a search warrant allowing the FBI to raid offices of attorney Michael Cohen and seize records including attorney-client communications. Mr. Cohen is the personal attorney of President Trump. Questions have since arisen as to whether there has been a violation of the attorney-client privilege in this case. Attorneys on both sides continue to argue about what information seized in the raid will be covered by the privilege and what information, if any, can be disclosed to the court, opposing counsel, and the public.
Image: Trump attorney, Michael Cohen, leaves Federal Court after a hearing in April 2018.
What is attorney-client privilege?
The "attorney-client privilege" is a privilege belonging to the client ensuring that all information shared by the client with his or her attorney will be held in the strictest confidence. The lawyer cannot and will not share the content of client conversations with anyone without the client's consent. This means that the information will not be shared with law enforcement, a prosecutor, or any other individual, whether they be involved with the case or not.
This privilege has been long-honored in this country, for over 200 years. Courts, law-enforcement, prosecutors, and all other lawyers have the highest regard for the law that protects the confidentiality shared between lawyer and client. A lawyer who breaks this privilege or does not retain his client's confidence risks serious threats to his own career, including the possible revocation of the license to practice law.
Why do we have this privilege?
The purpose of this privilege is to promote candid conversation between attorney and client, so that the client's rights are protected, and the attorney can gather all the information needed to adequately represent the client in the legal matter at hand.
Should a client allow a third party to be present during discussions with an attorney?
In some cases, a client wants a family member or close friend to know about all of the details in a case and/or to be present during conversations with the attorney. While I can understand that, I usually like to talk to my clients about the pros and cons of that decision before they discuss the case with others. I often advise a client not to share the information with other family members or friends. I also usually discourage the presence of third parties in my discussions with clients.
In the end, however, the decision to share the information rests with the client. If a client decides to share privileged information with another person, we say the client has "waived the attorney-client privilege".
I discourage my clients from discussing details of their cases with anyone else until the case is over and the matter is closed. This is most especially true in criminal cases. Anyone the client speaks to could possibly be subpoenaed to testify in court about what the client said.
How is the attorney-client privilege established?
A person who is seeking representation by a lawyer will need to share some information about the case in the first conversation with the lawyer. This usually takes place through a personal phone call or in-person meeting with the attorney. At Dearie, Fischer & Mathews, we will protect all confidential information shared during that first conversation. The attorney-client relationship officially begins when the client formally hires an attorney for representation. At this point, the attorney-client privilege definitely attaches to all privileged information the client shares with the attorney. From then on, all conversations with the attorney are confidential, even after the case has ended, and even if the client dies.
Is all information shared with the attorney protected by the attorney-client privilege?
Some of the information that is part of a client's case will be a matter of public record. The fact that a client has been formally charged in court, and name of the attorney in the case is public. The attorney can share this information with others. Generally speaking, our attorneys will still not share this information with another party unless required to do so by law or requested to do so by the client.
Is there any time when the attorney-client privilege can be broken without the client's consent?
If the attorney client privileged is broken, we say the privilege has been "pierced." There are rare circumstances where this is ordered by a judge. If there is sufficient evidence that the relationship between a client and an attorney is fraudulent or if there is evidence that they have conspired to commit a crime together, they could be forced to divulge the content of their conversations and correspondence. This is extremely rare. In my 25 years of practicing law, I have never been part of a case where the privilege was pierced on either side.