What is Attorney-Client Privilege?

When Does It Not Apply?

With the recent news of the FBI raiding the home and office of President Trump’s personal attorney, Michael Cohen, and President Trump tweeting that the “Attorney-client privilege is dead!,”people are asking “What is Attorney-Client Privilege?”

Generally, attorney-client privilege protects confidential communications between a lawyer and client from disclosure to others.  The law recognizes that the administration of justice is furthered when clients are encouraged to make full and frank disclosures to their lawyers so that lawyers may provide sound and informed legal advice, and represent the client as effectively as possible.

There are certain essential elements that must be proven before attorney-client privilege can be claimed:

1. There must be a relationship of lawyer and client or prospective client.

2. The confidential communication may be made between the client or his/her representative and the lawyer or his/her representative.

3. The communication must relate to matters necessary for legal advice or representation.

4. The communication must be intended to be confidential – outside the presence of any third person (unless the third person is present merely to support the client in a moment of need).

5. Attorney-client privilege has not been waived.

Attorney-client privilege belongs to the client, not to the attorney.  The lawyer cannot waive the privilege. A client may waive the privilege by voluntarily or inadvertently disclosing the contents of the communication with his/her lawyer. (Be careful what you tweet!)

However, attorney-client privilege does not apply if the services of the lawyer were sought to enable the client to commit what the client knew, or should reasonably have known, to be a crime or fraud.  This is called the “crime-fraud exception.”

The existence of a crime-fraud exception was most-likely argued by the Justice Department attorneys to the judge who authorized the warrant to search Mr. Cohen’s office.  Whether the crime- fraud exception will apply to defeat President Trump’s claim of attorney-client privilege is certain to be a hotly litigated question.

Also, while an attorney has an ethical duty not to reveal confidential information, disclosure is permitted and even required to prevent the client from committing a crime, to prevent a client from committing fraud, or to prevent reasonably certain death or substantial bodily harm to another person.  For example, if the lawyer learns of his/her client’s intent to commit a crime, and cannot persuade the client against committing a criminal act, he/she should take steps to prevent the act.

If a court determines that the crime-fraud exception exists, an attorney may be compelled to disclose confidential communications.  But if the disclosure is later determined to be wrongfully compelled, even though the confidentiality has been lost, the disclosed communication may be excluded from evidence against the client in any court proceedings.

I highly value and vigorously protects the attorney-client privilege, and encourage my clients to communicate with me fully and frankly and with confidence that their secrets will be protected to the full extent of the law.  Should you have a pending criminal or civil matter for which you are seeking sound legal advice, formed by my 30-plus years of experience, call the Martucci Law Office at 630-980-8333 to schedule your free initial office consultation and learn how we can help you.