Vail Law: Attorney-client privilege can’t be brought up by just anyone (column)
When questioned by House investigators Wednesday, Dec. 6, about what he and his father discussed after reports surfaced about a June 2016 meeting he had in Trump Tower with Russians, Donald Trump Jr. failed to answer, citing attorney-client privilege.
Neither The Donald nor his namesake are attorneys. So there’s that.
Trump Jr. refused to provide details about communications with his father, holding that because there was an attorney present during the exchange with his dear old dad, attorney-client privilege was properly invoked.
No Donald; you’re wrong.
Let’s take this in small, digestible bites so even poor, deluded Junior — if he’s reading this — can understand.
As Gilda Radner might have asked on Saturday Night Live, “What’s this I hear about privilege?”
Privilege is a particular benefit, advantage or immunity enjoyed by a person or class of people that is not shared with others. It is a power of exemption against or beyond the law. It is not a right but, rather, exempts one from the performance of a duty, obligation or liability.
Privilege is a hall pass when the rest of us have to wait for the bell to tinkle.
Priests and penitents
Let’s take one of what could be many examples; the priest-penitent privilege. The priest-penitent privilege is the right of a clergyman to refuse to divulge confidential information received from a person during confession or similar exchanges. A couple of things here: First, the priest-penitent privilege is not strictly limited to priests but, instead, applies to any or all clergy when, acting in a clerical capacity, he or she receives information from a penitent in confession or a similar exchange. Second, why must there be a privilege anyway?
Coining (and slightly perverting) an old Art Linkletter phrase, “People say the darnedest things.” And sometimes what they say can land them in hot water.
“Father So-and-So,” a prosecutor might ask, “did Mr. X brag to you that he robbed the bank?”
Once you side step around any hearsay issues that might apply, such a confession might prove relevant. But what privileges in all their various flavors do, is to protect special relationships and, in some circumstances, assure that the speaker may express himself with candor.
How can a priest absolve you of your sins with only a vague inkling of what your particular brand of turpitude might be?
Other relationships are similarly sacred. The doctor-patient privilege assures that a patient may speak freely to his doctor about what ails him. How else is the doctor to treat him?
“Doc, I got an ache in my belly.”
“What brought it on?”
“Uh, I dunno” is much different than, “It might be the balloon of heroin I swallowed.”
If the doctor is to do her job, then she’s got to know. And the law says that in the interest of preserving that essential relationship, the doctor’s lips must stay sealed.
But “must” is a pretty strong word and I’ll circle back to that.
Respect for relationships
Other privileges are also sacred but are based more on our respect for a relationship rather than the professional care the giver offers. A spouse, for example, may not be compelled to testify against his or her better half because we respect and want to encourage marriage.
Now, rounding back to “must.” Privileges are not absolute. And here is a critical point: the privilege is held by the client/patient/penitent. It is held by the person seeking aid, solace or absolution. But should the holder waive the privilege, then Nellie bar the door. Once the privilege cat is out of the bag owing to the holder’s publication of the damning nasty bit, then others may join the free-for-all.
There are exceptions, too, to the exception of privilege. For example, when a patient confides in a therapist with sufficient specificity as to raise a real alarm, the therapist may disclose to authorities the patient’s intent to inflict harm on another.
Back to Donald now.
Attorney-client privilege requires the relationship of attorney and client between the speaker and the lawyer. The speaker must disclose the “secret” to the attorney for the sake of seeking the attorney’s legal advice. Attorney-client privilege is the right of a lawyer, on behalf of his client, to refuse to divulge confidential information from his client. If I am pedaling my Trek up Vail Pass and some younger, swifter riders pass me hatching a plan to knock off Safeway, then they cannot assert, when it’s later discovered that I heard them, that I’ve got to keep my gob locked because, when they were devising their devious plot, a lawyer overheard them.
Donald, neither you nor your dad are lawyers. Neither one of you asked the other, in the exercise of his profession as a lawyer, for legal advice. Therefore, what you said to one another is not protected by attorney-client privilege.
While the Trumps may enjoy certain privileges the rest of us may not, that particular one ain’t on the A list.
Is that clear enough, Junior?
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
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