Is The Demise of Attorney-Client Privilege Greatly Exaggerated?

by: The Knowledge Group

April 24, 2018


In a widely reported search of Donald Trump’s attorney Michael Cohen’s work spaces, Cohen’s communications with the president, Republican fundraiser Elliott Broidy, and talk show host Sean Hannity have all become entangled in a federal investigation.

Cohen’s own lawyer denounced the search as legally inappropriate and unnecessary, insisting Cohen was already cooperating with federal investigators.

And Cohen’s clients insist that if attorney-client privilege has any life in it at all, it should shield their interactions with Cohen from public examination.

Is Attorney-Client Privilege Weaker for Public Actors?

The attorney-client privilege protects the expectations of confidentiality held by a client or potential client who talks with a lawyer. It lets the client make honest disclosures.

It’s limited, of course. It does not shield interactions between client and lawyer that further any kind of crimes or legal violations. Nor will it cover anything that’s not integral to authentic legal work for a client. Federal investigators maintain that Cohen has carried out image maintenance, not legal work, for the president—and that’s not shielded.

The attorney-client privilege holds even in politically charged cases—although during the Whitewater investigation, President Clinton tried and failed to assert the privilege against subpoenas.  Other presidents, including Nixon, have waived the privilege. Under intense public pressure for transparency, political figures sometimes waive legal protections to which they may be entitled.

Cohen and Confidentiality: Is It Over?

Sean Hannity, who famously defended Cohen’s moves as Donald Trump’s lawyer in the Stormy Daniels scandal, was taken aback to have his own connection with Cohen announced in Judge Wood’s courtroom. Hannity denied paying Cohen—well, more than $10.

Whether a lawyer has been paid or not, privilege can adhere. But what’s the point of the privilege, with so much already laid bare?

The U.S. Justice Department often filters out anything privileged from a haul of seized material, so at least it’s held from the prosecution team. Michael Cohen’s legal team wanted to do this filtering, or at least assign it to an independent special master. But Judge Wood ordered copies of all materials to the Trump and Cohen teams—and to the prosecutors.

That does not mean the privilege is dead or useless. Insofar as it keeps certain items from actually being used in prosecutions, civil proceedings, or an impeachment process, it’s alive and valuable.

Stay updated with all of the latest developments whilst earning your CLE credits.  We recently held an event on Attorney-Client privilege during internal investigations.  We have a number of events available on demand you can access on the privilege by clicking here.