Tuesday, April 10, 2018
The attorney-client privilege has had its challenges over the years. But to say the "attorney-client privilege is dead" is clearly an exaggeration and inaccurate.
As noted here, there have been many law offices that have been searched throughout the years. (see here). The government has protocols in place to handle these searches. And hopefully a court will take it a step further and appoint an independent taint team to protect any client information. As you can tell, I am not a fan of the FBI or DOJ being the "taint team." But this does not diminish the ability of the government to stop potential criminality whether it exists inside or outside a law firm.
Some basics - "The core protection of the privilege requires (1) a communication, (2) that was made by the client to a lawyer, (3) that was made in confidence, and (4) that was made for the purpose of obtaining professional legal advice (or services relating thereto)." (See Podgor & Israel, White Collar Crime in a Nutshell 5th Ed. p. 461). One of the exceptions to this privilege is the crime-fraud exception, an exception that does not provide a privilege to client communications that are made for the purpose of furthering an ongoing or future crime or fraud. In assessing whether something falls within the crime-fraud exception, "[t]he key is the purpose of the client, not the knowledge of the lawyer, as the exception applies whether or not the lawyer is aware of the client’s purpose. It also applies whether or not that purpose was actually achieved." Id. at 489.
What we don't know with regard to the search of the President's lawyer's office: 1) whether or not the information sought in the search involved activities of the President, activities of the lawyer, or the activities of others. If this involves activities of the lawyer, an issue of attorney-client privilege may not be implicated. We also do not know whether any confidential communications were being sought. Finally, we don't know if the crime-fraud exception was even a basis used for this search.
And as I say again, white collar investigations take time. Let's give the government, whether it be a special prosecutor or a US Attorneys Office, the time to properly conduct their investigation. If they overstep their authority, there will be plenty of time down the road to challenge it.