by Bernard D. Nomberg, Partner, The Nomberg Law Firm
On Tuesday morning, Donald Trump awakened America by tweeting “Attorney-client privilege is dead.” This was in response to his personal lawyer, Michael Cohen, having his office, home and hotel room raided by federal investigators pursuant to a search warrant signed off on by a federal judge. Investigators seized business records, emails and documents related to a payment to another woman alleging an affair with Trump. Based on Trump’s tweet, he is clearly under the impression that the things he has said in confidence to his attorney, under the assumption they were protected by the attorney-client privilege, are now in the hands of the FBI and the attorney-client privilege has been violated. Contrary to the initial outrage of Trump, the attorney-client privilege is not dead and one of the most well-preserved legal privileges.
So, what is the attorney-client privilege? The attorney-client privilege is a set of rules that apply to communications between a client and their lawyer. These rules are designed to protect the confidentially of the communications a lawyer has with their client to ensure the client feels free to be honest while seeking legal advice. This privilege has been shown to benefit the legal system by allowing clients to openly communicate with their legal counsel. Technically, this privilege is owned by the client. This privilege covers communications or documents that relate to either a lawyer providing legal advice or gathering related client information.
As with most laws, there are some exceptions. Lawyers are required to disclose communications with their client about a current or future crime. Similarly, there is an exception for fraud, which arises in civil cases. These two exceptions together are known as the crime fraud exception. Could the crime fraud exception apply to any of the seized communication between Trump and his attorney Cohen? If the two were discussing how to actively violate the law, the exception would likely apply and all documents previously under attorney-client privilege, would be subject to discovery.
In order for the government to successfully seize the documents, they had to have a valid search warrant. However, very rarely will investigators seize attorney’s documents or apply for a search warrant. Typically, subpoenas are used to attain information from an attorney. A valid search warrant requires probable cause to believe a criminal activity has occurred. Does the issuance of the warrant indicate the Judge thinks the crime fraud exception applies? If this exception applies, this will be the only stipulation that will entitle the FBI to validly look at all the documents seized. Otherwise, they must return the documents that fall under the attorney-client privilege.
Furthermore, Cohen’s office potentially contains documents and communications related to all his clients, not just Trump, that are also privileged and confidential. All the documents seized, whether they relate to communications between Cohen and Trump, must be reviewed for privilege claims. If any privileged documents are discovered, they are to be returned to whom they were seized. So, how do they review these without breaking the attorney-client privilege? According to the U.S. attorney’s manual, procedures are outlined to ensure privileged materials are not viewed, seized, or retained. The U.S. attorney’s office has a “taint team” also known as a “privilege team” that are brought in to review the privileged material. This team will be scrounging all the hundreds of privileged documents to look for anything that could show evidence of a crime. Otherwise, all of the privileged documents will be returned to Cohen.
Following his initial tweet, Trump tweeted “A TOTAL WITCH HUNT.” What does this mean? Is he implying the U.S. Attorney’s Office and the FBI will come up empty handed? Only time will tell. My money says the U.S. Attorney’s Office and the FBI will be acting quickly on this matter. Americans will now sit back and anxiously wait for an update relating to all of the seized material from Cohen’s office.
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. He has been selected a Super Lawyer by Super Lawyers Magazine as well as a Top Lawyer by B-Metro Magazine. Bernard is the Chair of the Alabama State Bar’s Workers’ Compensation Section.