The attorney-client privilege in The Justice System, which ensures that a client can honestly communicate with an attorney in seeking advice and aid, is a cornerstone of the U.S. legal system. The privilege generally prevents an attorney from being compelled or even voluntarily disclosing information conveyed in confidence by a client for the purpose of seeking legal counsel.
For the attorney-client privilege to apply, there must be an attorney – client relationship. There must be an agreement between the attorney and the client about representation. Common examples include an engagement letter, a fee contract, or even an oral agreement may suffice. There must be a meeting of the minds between the attorney and the client. A client must have a reasonable belief that they are represented by the attorney, which may be demonstrated by factors such as: payment of fees, context of the conversation, request and receipt of legal advice, and former representation between the attorney and the client.
Once the attorney-client relationship is established, the question is whether specific communications are protected. As a prospective or actual client, it is vital to know what is not protected by the attorney-client privilege. For example, the factual circumstance surrounding the communications are not protected, such as the date and time of the communication, the fee arrangement, and the names of participants in the meeting.
Moreover, the client can waive the attorney-client privilege. This commonly happens when a third-party is present for the communication. This is why as a matter of routine practice Mr. Freeman always meets privately with clients to discuss the specific facts and circumstances of an investigation or case. While third-parties, such as a client’s spouse or parents may participate for portions of a meeting, Mr. Freeman deliberately avoids discussing the underlying facts of representation in the presence of third persons.
Another exception to the attorney-client privilege is the crime-fraud exception. Generally speaking, if a client seeks advice from an attorney to assist in the commission of a crime or fraud, or to conceal a crime or fraud, then the communication is not privileged. However, if the crime or fraud has been completed and the person then seeks legal counsel, those communications are still privileged.
The FBI raid of President Trump’s personal attorney Michael Cohen is a prime example of the government’s reliance on allegations that could trigger the crime-fraud exception. According to media reports, the government obtained a search warrant based upon probable cause and executed a search for evidence relating to bank fraud, wire fraud, and campaign finance violations. The FBI went into Mr. Cohen’s home and business, seized computers and documents, and will later search through for matters related to potential crimes. Regardless of a warrant, as stated by legendary law professor Alan Dershowitz, this raid constitutes “a very dangerous day… for lawyer-client relations.” Moreover, regardless of whether a “taint team” is utilized to initially review the seized items, the government has undoubtedly compromised the privacy and confidentiality of countless clients who may have consulted with Mr. Cohen on a variety of legal matters.
As a prospective client seeking help with a criminal investigation or case in The Justice System, it is vital that you consult with an experienced criminal defense attorney who practices ethically and understands the limits of the attorney-client privilege. If you are in such a situation, contact us immediately. Your freedom could depend on it.