Can Cohen’s clients count on communications to remain confidential?
When news of the search broke, Fox News host Laura Ingraham immediately tweeted about the raid, saying, “If by raiding the office of @realDonaldTrump’s attorney, the @fbi violated Trump’s attorney-client privilege, this is about to get really ugly.” However, I’m not so sure she’s right …
Attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. It means that attorneys may not reveal what their clients’ privately reveal to them, and that no one can force the attorney to disclose this information. Its purpose is to encourage clients to openly share information with their lawyers, which allows lawyers to provide the most effective representation possible.
In order for federal officers to obtain a warrant to search Cohen’s office, the FBI would have had to demonstrate before a federal magistrate that probable cause for the search existed. Furthermore, the evidence and probable cause would have had to relate directly to an alleged crime committed by Cohen – not by one of his clients.
The only way the prosecution would be permitted to seize or review any private communications between Cohen and one of his clients would be if the communications were part of a crime undertaken by both the attorney and the client together or if the veil of that privilege was pierced in some way.
And let’s not forget the taint team. During some white-collar crime investigations, prosecutors at the federal level establish “taint teams” to separate materials protected by the attorney-client privilege from other documents to avoid later claims that law enforcement improperly accessed privileged documents. Admittedly, it’s not the perfect answer, and a number of legal professionals have criticized the practice as the “fox guarding the chicken coop.” However, the existence of a specialized team put in place to ensure the protection of attorney-client privilege certainly mitigates any insinuation that things are “about to get really ugly.”
Lastly, the professional responsibility section of American Bar Association says this about the privilege: “[It] only protects the essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation.” The ABA also very clearly separates the duty of an attorney to promise confidentiality and the privacy of attorney work-product, like handwritten notes, from the attorney-client privilege. This is important because it explains that the protections afforded by the attorney-client privilege are not the only mechanisms in place to protect the privacy of client’s confidential information.
Simply put, the attorney-client privilege is not an impenetrable wall of privacy. So long as the FBI could produce the probable cause necessary to obtain a search warrant, and the taint team provides holistic review of any material seized, there will be no reason for things to “get ugly.”