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Attorney-Client Privilege Is Far from Dead

Attorney-Client Privilege Is Far from Dead

When FBI agents in New York raided Michael Cohen’s home and office on April 9 and confiscated his computer, phone and financial records, President Donald Trump was furious. He called the raid on his long-time private attorney a “break-in,” even though it had been authorized by a federal judge who found sufficient evidence to approve a warrant. In a tweet the next morning, Trump said, “Attorney-client privilege is dead.”

Despite the President’s comments, the attorney-client privilege is alive and well. Regardless of the outcome of the investigation into Cohen’s activities, this long-standing legal principle continues to protect a client’s confidential conversations with an attorney under most circumstances.

Legal historians believe that the concept of privilege arose in the 1500s in England, along with the right to trial by jury. While the application of this legal principle has evolved through the years, its essence has not changed.

If you are facing a challenging personal, business or criminal problem, you want to be sure that what you tell your attorney is confidential. For example, you might admit your guilt in a criminal case, and talk about potentially extenuating circumstances. In civil litigation, you might provide your attorney with sensitive business documents that could be damaging to your company’s reputation if they become public.

When does privilege apply?

When clients meet with attorneys, there is usually an expectation that the discussion will remain confidential. When individuals reasonably believe they are seeking and obtaining legal advice, those conversations are considered privileged under most circumstances. Certain documents, such as a client’s summary of events or a written response to an attorney’s question would also be privileged.

Clients can decide to waive privilege by announcing that their conversations with an attorney were not related to legal matters, or that they did not hire the attorney to represent their interests. For instance, Fox political commentator Sean Hannity denied being one of Cohen’s three clients after his name was revealed in a New York court hearing. Hannity said he was never represented by Cohen or ever retained him as an attorney, saying they only had a few conversations about real estate.

Clients can give up or lose that right to privilege in other ways, as well. A client who provides confidential information to other people can no longer claim that protection. An individual who says, “I relied on the advice of counsel,” in a case, generally waives the privilege related to those issues.

Privilege does not apply if the client and attorney discuss matters in a public setting in front of other people or on social media. A casual conversation on the golf course or in a social setting might not be considered privileged, either.

From the attorney’s perspective, it’s important to clarify the concept of privilege early in the professional relationship. At the initial meeting an attorney might ask a prospective client not to discuss anything they would regard as confidential until they have a formal agreement. A few clients have also been known to abuse the confidentiality privilege by revealing something to an attorney they do not intend to hire. Instead, they want to prevent the other party in the proceeding from using that attorney due to a conflict of interest.

The Issue of Fraud     

From a different perspective, an attorney who is accused of fraudulent activities cannot hide behind the principle of privilege. If there is evidence that the attorney assisted a client in a fraud or engaged directly in illegal activities, those conversations are not protected and could be presented as evidence in the courtroom.

Other exceptions to the principle of attorney-client privilege may include legal malpractice lawsuits and fee disputes. An attorney accused of malpractice might need to reveal the client discussions to the court in order to mount an effective defense. Disputes over legal fees may also require the parties to present privileged information in order to resolve the issues.             Finally, there is a concept called the “at-issue waiver.” An attorney who injects a factual issue into a case as evidence, may be required to disclose privileged conversations related to those facts. Otherwise, those facts could go unchallenged, which would not be fair to the opposing party.

As for the Cohen case, any client communications, including those with President Trump, would not be protected by attorney-client privilege if they were related to Cohen’s misconduct or criminal activities. In that regard, this legal principle is being applied appropriately in this high-profile matter.

John H. Genovese focuses his practice on commercial litigation and bankruptcy as a shareholder at Genovese Joblove & Battista, P.A. in Miami

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