Trump's Lawyer and the Attorney-Client Privilege

The recent FBI raid on attorney Michael Cohen’s office has generated a lot of commentary. The fact that Cohen is President Donald Trump’s private attorney has made much of this commentary very strange. The ACLU—self-proclaimed champion of privacy and individual and civil rights—trumpeted the government’s use of a search warrant to raid Cohen’s office, home, and a hotel room as supporting “the rule of law.” Hard to imagine the ACLU having a similar reaction if the private lawyers of Hilary Clinton or Barack Obama had been subject to such a raid.

On the other side, President Trump and others have hyperbolically called this the “death” of the attorney-client privilege. So where is the reasonable ground when examining this issue?

Well, let’s remember a few things about the attorney-client privilege.

The privilege belongs to the client, not the attorney.

Read that again so it sinks in. It makes sense when you think about it. The privilege is designed to permit the client to speak frankly with the attorney without fear of potentially embarrassing or incriminating information being made public. The attorney, of course, is the gatekeeper of the confidential client communications and there are specific ethics rules for how attorneys are to handle them. For example, Idaho’s Rule of Professional Conduct 1.6 restricts the attorney from revealing client information “unless the client gives informed consent” to release the information, or one of a few exceptions applies.

This leads to the second point. The privilege is very strong, but not absolute.

Exceptions to the privilege exist but are extremely limited. The American Bar Association’s Model Rule for confidential communications provides an exception “to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services.” Not all states follow the model rule. Idaho’s rule is substantially different as it permits disclosure “to prevent the client from committing a crime, including disclosure of the intention to commit a crime.”

Finally, attorneys sometimes must navigate a modern minefield to avoid mistaken waiver of the client’s privilege.

In the days before recording devices and the internet, maintaining client confidences was relatively easy. A client could communicate with her attorney in writing or verbally and be confident the attorney, if scrupulous, would not reveal what was written or said. Modern technology has made this more difficult. Text messages and emails can be intercepted. They can be sent to multiple people in a group or string, or CC’ed to others, some of whom may be the client(s) who expects confidentiality, some of whom may not be. Computers and servers with internet access are subject to hacking and disclosure or use in blackmail. It’s not hard to see how an attorney might accidentally or carelessly waive a client’s confidentiality and open the door to disclosure of some or all client communications.

We need to look at the Cohen raid through these lenses.

We don’t know what specifically was in the affidavit(s) and documents supporting the request for the Cohen search warrant. Obtaining a search warrant is a difficult process that requires facts showing there is probable cause a crime or evidence of a crime will be found at a certain location. A search warrant for an attorney’s office, at least at the federal level, must pass even greater scrutiny. News reports suggest the reason the Cohen warrant was issued was because of payments Cohen made to porn actress Stormy Daniels and perhaps another woman in exchange for settling any claims they may have had against citizen Donald Trump years ago, and suppressing stories during the 2016 campaign of alleged affairs they had with him.

What’s the alleged crime or fraud supporting the search warrant? Well, that’s equally unclear. Bribery is a possibility, but cases of civil wrongs are settled all the time with confidentiality as part of the agreement between the parties. Is every such settlement now a bribe? If the parties confidentially settle but one party denies committing any misconduct, does the denial amount to fraud?

Some suggest Cohen may have threatened Daniels to get her to settle. Cohen denies this claiming all his communication with her was through her attorney. It seems if her attorney verified this a search warrant would not be needed. Others have suggested violation of campaign finance laws, i.e. Cohen’s payment to Daniels amounts to a “campaign contribution” to candidate Trump’s campaign in excess of what is permitted by law. That seems a pretty slender reed to justify a search warrant of an attorney’s office and home and seizure of all his files. The wild card here is that Cohen has publicly stated he personally paid Daniels out of his own pocket during the 2016 campaign and Trump didn’t know about it. If this is true, then Cohen may have inadvertently disclosed privileged information which could open the door to more privileged information being accessible.

But the issue is even more complicated. If Trump didn’t communicate with Cohen about Daniels’ claims, or about settling with (or paying) her and the circumstances surrounding the settlement, it is fair to ask what confidentiality was there to maintain. One thing to keep in mind about high-profile clients is some of them will give their attorneys blanket authority to address and resolve claims (including nuisance claims and those of dubious merit) for amounts under a certain maximum set by the client, and without the client actively participating much if at all. Such an arrangement does not eliminate the attorney-client privilege, but it can make applying and maintaining its protections more complicated.

Moreover, did the warrant seek documents and files about Trump that had nothing to do with Daniels? A search warrant in such instances is usually a last resort when all other attempts at cooperation have failed or there is an imminent fear documents will be destroyed. Cohen apparently had been cooperating with the special counsel and FBI and had voluntarily turned over thousands of pages of non-privileged documents. He has not been shy about publicly responding to Daniels’ attorneys. The Daniels settlement has been discussed in the news and the subject of many interviews. She and her attorney(s) have a copy of the settlement agreement and details of it have been leaked to the press. She, too, has not been shy about attempting to stay in the spotlight and keeping her claims alive. Understanding the client truly owns the privilege, and without knowing more about the support for and scope of the warrant, there are serious concerns the warrant was an extreme step, an overly broad fishing expedition that likely violates the attorney-client privilege of Trump and others.

Another issue: Did the warrant seek documents and files from other Cohen clients? Apparently, yes, since Fox News host Sean Hannity was outed as a Cohen client yesterday. Hannity claims he only had some consultations with Cohen and no representation in any dispute. Many consider the attorney-client privilege to cover the client’s name and whether the person is even a client. Obviously, such information may need to be disclosed to pursue a claim or may be publicly available through the courts when litigation is initiated. But what business is it of anyone else’s if the client is merely consulting with the attorney on private legal matters, or trying to secure some private legal advice? Whether you love or hate Hannity, surely he is right to expect his attorney-client communications would be privileged.

Yesterday, Judge Kimba Wood, the federal judge hearing the Cohen case, suggested she would deny Cohen and Trump’s request to review the seized documents before prosecutors do to see which documents are protected by the attorney-client privilege. The mainstream media nearly cackled with glee calling it a defeat for Trump. However, Judge Wood also dealt a blow to federal prosecutors by suggesting she will consider the appointment of a “special master” (an independent court-authorized person, often a judge) to review the documents first and make recommendations on what should remain protected. Another possibility she will consider is appointment of a “taint team”—a team of prosecutors unrelated to the investigation to review the documents and withhold from investigators those protected by the attorney-client privilege. Appointment of a special master or a taint team is a reasonable, arguably necessary step to protect privileged information, and hopefully Judge Wood will follow one of these options. She should also send a message about the importance of the attorney-client privilege by strongly cautioning all sides against leaking any information contained in the documents.

If she doesn’t, and she allows prosecutors unfettered access to all the seized documents, potentially grave consequences could result. For example, what if the FBI obtained Trump files unrelated to Daniels but without probable cause to believe any crimes or evidence of crimes existed in these files? Should they be permitted to comb through the files regardless, looking for unrelated criminal activity simply because they seized them? What about embarrassing or incriminating information contained in other client files that have nothing to do with Trump?

Think about it in a more personal way. Let’s say you had retained an attorney to help you buy a house. Sometime later you get arrested for a crime unrelated to the home purchase. You consult with the same attorney and during your conversations with her you confessed to committing the crime. Now assume the attorney wrote your confession down in her file notes but you are never charged with with the crime. If the FBI seizes all your lawyer’s files pursuant to a search warrant related to possible crimes involving real estate matters, should they be allowed to seize your unrelated criminal file? Should they be able to uncover your confidential confession to your lawyer? If yes, then should you then be subject criminal charges and trial based on your confession? This is clearly prohibited under the current laws and ruels, but it is not too far a stretch to believe this could start happening based on what is going on with Cohen and his clients, including Trump. How likely are you to be truthful and candid with your lawyer if you knew there was a chance law enforcement could access your attorney-client privileged communications indirectly or through a back channel?

We know the FBI sought and obtained FISA warrants to surveil Trump campaign aide Carter Page. Much of the evidence used to support these warrants has been debunked or linked to unreliable witnesses. We also know there are regular and significant leaks from federal officials—leaks of information that are clearly partisan, likely unethical and potentially criminal. Put this together with the Cohen warrant. Again, we don’t know what was in the Cohen warrant application or the warrant itself so jumping to one extreme conclusion or another is inappropriate. However, if law enforcement can use dubious evidence to secure broad fishing expedition search warrants, and obtain potentially embarrassing or incriminating information that should be protected by the extremely strong attorney-client privilege, what can they not do? If they obtained information you shared with your attorney, how confident are you that your privileged information won’t be used against you or leaked to the public?

A client's ability to confidentially communicate with his lawyer is essential to our American system of criminal and civil justice. The attorney-client privilege should only be invaded for the most necessary and critical reasons. We should soon learn more about the Cohen warrant. But at this point, the warrant to seize Cohen’s files should concern you greatly regardless of whether you support or oppose, or like or dislike President Trump.

Leaving your feelings about Trump, pro or con, aside, ask yourself this question: Would I want my confidential attorney-client discussions exposed for all the world to see?