Attorney-client protections in U.S. strong, but not absolute
Attorney-client privilege isn’t dead, as President Trump claimed after the FBI searched the New York office of his personal lawyer, Michael Cohen. In fact, the confidentiality surrounding lawyer-client communications is stronger in the U.S. than in most other nations, and has even at times delayed disclosure of public health hazards.
But as the Cohen search showed, the shield of secrecy is not absolute, and does not prevent prosecutors from seeking judicial permission to search lawyers’ offices for evidence of ongoing or future crimes.
“The goal of the privilege is to promote trust and candor in attorney-client conversations,” Deborah Rhode, a Stanford law professor and specialist in legal ethics, said Tuesday. “But when the conversation’s goal is fraudulent activities, society has no interest in promoting that behavior.”
Among the information reportedly sought in the search Monday were records of a $130,000 payment Cohen made to Stormy Daniels, the porn film actress, for her silence about a past affair with Trump. The New York Times reported that agents also sought records of a $150,000 agreement with Karen McDougal, a former Playboy model, to maintain her silence about a former relationship with Trump. Agents also sought bank records, according to media reports.
Such records would be privileged, and could not even be sought by prosecutors, if they concerned only past actions by Cohen and his clients, including alleged crimes or frauds. But federal agents can pierce the shield for information that shows a lawyer and client are committing, concealing or planning criminal activity.
“A client having admitted to a lawyer that he has already committed a crime, that would be thoroughly privileged,” said Robert Weisberg, a Stanford law professor and co-director of the school’s Criminal Justice Center. But the privilege of confidentiality, he said, “is not a cover for using the lawyerclient relationship to perpetrate crimes.”
First, to gain access to a lawyer’s records, the prosecutor’s office — here, the U.S. attorney in New York, on a referral from Special Counsel Robert Mueller — needs enough information to convince a federal magistrate that evidence of such crimes will be found in the lawyer’s office. That sometimes proves impossible, Rhode said.
“You don’t know what you don’t know,” she said. By using client-attorney privilege, Rhode said, “companies have been able to shield compromising information for a very long time,” such as the health dangers of cigarettes and asbestos. “Often when the information has come out, it’s only because of a whistle-blower.”
The Justice Department also advises a cautious approach to obtaining law office records. Under long-standing policy, the department instructs prosecutors to first attempt to seek the information from alternative sources, and, if unsuccessful, to seek high-level approval for a subpoena of the records, which the lawyer can challenge in court.
A search warrant, obtained secretly and served without warning, should be sought only if other methods “could compromise the criminal investigation or prosecution,” could result in the destruction of evidence, or “would otherwise be ineffective,” the department’s policy says. It’s not clear which of those exceptions was invoked for the Cohen search.
The search itself is supposed to include additional safeguards, because a lawyer’s office contains a wide range of documents and files. While the lawyer may be suspected of collaborating with a particular client in an ongoing crime, some of the lawyer’s communications with that client may still be privileged, because they describe only past actions, and other documents may involve other clients who are uninvolved in the alleged wrongdoing.
To keep the FBI, and the prosecutors, from seeing material they’re not supposed to see, the initial search is screened by a “taint team” of agents and other officers not involved in the current investigation. The team removes any privileged or questionable material and turns it over to another official, called a “special master,” for a final determination, said Diane Karpman, a Los Angeles attorney who specializes in legal ethics.
In searching a law office, “it’s like they’re using kid gloves,” at least compared to searches of other businesses, Karpman said.
And although lawyers wouldn’t know in advance that their offices were about to be searched, they’re still not without recourse, said Stanford’s Weisberg.
“If they’re really worried about privileged evidence going before a grand jury” for possible criminal charges, he said, “they can try to get a court to limit what can go before the grand jury.”