With the FBI’s seizure of documents during its raid of attorney Michael Cohen’s office, home, and hotel room, the application and scope of the attorney-client privilege is in the national spotlight. What is the attorney-client privilege, and what does it actually protect? Federal prosecutors and the legal team for Mr. Cohen are currently fighting over these very issues, with a federal judge considering the appointment of an independent outside attorney to review the seized documents to determine whether any of the documents are protected.
The attorney-client privilege is one of the oldest privileges in the legal world. Generally speaking, the attorney-client privilege protects communications between the attorney and the client made for the purpose of securing legal advice or assistance. The purpose of the privilege is to encourage full and frank discussions between attorneys and their clients. The privilege recognizes the importance of the client’s candor to the attorney so that the attorney may provide the client with appropriate advocacy and advice. The privilege acts to bar from disclosure any confidential attorney-client communications. These communications are not admissible in evidence and generally may not be used against the client in any legal proceeding.
Not all communications between the attorney and the client are protected from disclosure, though. Privilege only attaches where the communication has been maintained in confidence and no exceptions to privilege are applicable. Communications between the attorney and the client made in the presence of third parties may not be protected. The presence of the attorney’s staff does not remove the privilege, as the attorney-client relationship extends to employees acting under the direction of the attorney. But the presence of other third parties could destroy the privilege, so when speaking with your attorney, be aware of other people who may be able to hear the conversation. If the communication is not confidential, it is not protected.
Some people may think that giving documents to their attorney means those documents are protected from disclosure. This is not necessarily true. Documents that are not privileged in the hands of the client do not become privileged just because they are in the hands of the attorney. The attorney’s possession of a non-privileged document does not afford the document any special protections.
In some cases, a communication made in confidence to an attorney may still be subject to disclosure. Communications between the attorney and the client about a future crime or fraud are not protected. This is known as the “crime fraud exception” to the attorney-client privilege. Any communications made in furtherance of illegal or fraudulent activity are subject to disclosure. The attorney-client privilege may not be used to enable the commission of a crime or fraud. This exception does not prevent a client from talking to an attorney about crimes committed by the client in the past, as these communications are covered by the privilege, so long as the other conditions of the privilege are met.
If a communication or document meets the requirements of privilege—it was made in confidence to an attorney for the purpose of seeking legal advice and was not made in furtherance of illegal activity—it may still be disclosed, but only if the client decides to waive the privilege. Since the privilege belongs to the client, any waiver of the privilege must be an intentional decision by the client. Once the client decides to waive the privilege, the client may not then rely on the privilege to protect the communication from disclosure.
This is a general overview of the purpose and scope of the attorney-client privilege. For any specific questions about the protections afforded to communications with an attorney, please seek the advice of an attorney.