Vail Law: Understanding attorney-client privilege and its limitations in regards to Trump (column)
April 24, 2018
I am not "deflated and concerned." Truly, no matter what President Donald Trump may imagine, I am not.
Maybe Trump should have asked me before he tweeted, "Attorney-client privilege is now a thing of the past. I have many (too many!) lawyers, and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned."
Before getting on to our main point, bear with me as I vivisect this.
First, maybe Trump's lawyers are wondering when their offices and even homes will be raided, but I am not. And I'm betting most lawyers in this country have about as much concern as I. Second, being a lawyer, I presume that I am included in the "all" when Trump tweeted that "All lawyers are deflated and concerned." Nope. Not one iota.
“Next, the application was reviewed by a federal judge and the case had to be persuasively made that there was probable cause to believe a criminal act or two had been committed and that the warrant would result in demonstrable evidence of wrongdoing. Oh, and by the way, the U.S. attorney in Manhattan is
— a Republican and another Trump appointee.”
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Why, you might reasonably ask, is the president concerned and I am not? Perhaps because Trump is not a lawyer and he has misunderstood the doctrine of attorney-client privilege. I presume one of his "too many" lawyers will explain it to him. In any event, it goes like this.
Granted, it was a bold and highly unusual move for the U.S. Attorney's Office for the Southern District of New York to raid Trump's attorney, Michael Cohen's office. And that's the first clue.
To raid an attorney's offices is highly unusual but does not portend that this will become a "thing." Why Cohen's office, in particular, is critical and requires a quick sidestep to the world of subpoenas and search warrants. I'll try to make this brief.
A subpoena is an order directed to an individual commanding him to appear in court on a certain day to testify or produce documents in a pending lawsuit.
The power to subpoena a person is granted to officers of the court, attorneys and judges.
A person may be subpoenaed to appear in court or another designated location to provide testimony for trial or deposition or to produce documents or other evidence. A subpoena which requests that items be brought with the person is called a "subpoena duces tecum" (literally from the Latin, "You shall bring with you").
So far, so good.
But what if a prosecutor or other investigative agent is more than a little nervous that the person she wishes to subpoena might just take the subpoena as the starter's pistol to start shredding, deleting and otherwise covering the subject of the subpoena's potentially incriminating tracks?
What she might just do is to go to the Court or other lawful authority and ask to have a search warrant granted.
The Fourth Amendment to the U.S. Constitution guarantees the people's right to be free from unreasonable searches and seizures, which often — but not always — means that government agents must have a warrant to search and seize your person or your property. The case of Michael Cohen is a clarifying example of if and when a search warrant may be appropriate and, in its issuance, the Fourth Amendment remains protected.
Although Trump tweeted that the FBI search was a "break in," it was not. That claim is simply detached from the truth.
The search was legally authorized pursuant to a warrant. The application for this particular warrant was, in fact, approved by the Deputy Attorney General (who, by the way, is a Trump appointee) pursuant to the Department of Justice's rather strict rules for searching a lawyer's "privates."
Next, the application was reviewed by a federal judge and the case had to be persuasively made that there was probable cause to believe a criminal act or two had been committed and that the warrant would result in demonstrable evidence of wrongdoing. Oh, and by the way, the U.S. attorney in Manhattan is — yep — a Republican and another Trump appointee.
As a quick aside in the "you can't make this stuff up!" category, this particular U.S. attorney came from Rudy Giuliani's law firm and, as you may know, Giuliani was just brought on board with Trump to try to bring a swift end to the Mueller investigation.
But, I digress. … The point is, to get a warrant issued, you have to convince the judge that if not yet proved that a crime was committed, the circumstances quack like a duck and, without the warrant, important stuff might somehow "disappear." Thus, the feds came knocking on Cohen's door, rather than sending him a calligraphed invitation to produce the documents requested at his leisure.
What, though, about attorney-client privilege? The short of it is that the privilege is not unlimited. While the privilege exists to assure candor between a client as his lawyer in order for the client to receive unfiltered legal advice, the privilege can be pierced. Among other reasons an asserted privilege can be pierced is if the lawyer is believed to have participated with his client in the commission of a crime or if the lawyer — while the holder of a law degree — isn't acting as a lawyer.
If, for example, you and I go off to bike together and have not established relationship as client and attorney, and you tell me where the bodies are buried, then just because I am a lawyer I won't protect you. Fair warning: More than likely, I will spill the beans on you.
In the case of Cohen, there are a couple of threads that converge. First, it appears that Cohen, while a close associate of Trump's, really wasn't dispensing legal know-how. Instead, it appears, Cohen was acting more as a business associate of Trump's than as a lawyer. And at least the allegations seem to be that Cohen is suspected of criminal activity that would override any privilege that might have otherwise applied.
The attorney-client privilege has its limits. Search warrants also have stringent rules that must be followed, and to implement one, there must be a convincing stink of something rotten. For a search warrant to be served on a lawyer is indeed a rare event. But these are rare times indeed.
"Deflated and concerned?" Nope, not I. And I'm guessing most other counselors at law are not worried in the least.
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, email@example.com.