WASHINGTON — Less than 24 hours after federal agents raided the offices and home of his personal lawyer, President Trump lamented: "attorney-client privilege is dead."
"I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided," the president tweeted later. "All lawyers are deflated and concerned!"
While all lawyers may not share the president's immediate concerns, the search targeting New York attorney Michael Cohen — his involvement in hush money payments to a porn star and a Playboy playmate, along with his newly disclosed association with Fox News host Sean Hannity — have cast a spotlight on the purpose and bounds of the central bond between attorney and client.
On Monday, a federal judge dealt a setback to Trump, denying a bid to review records seized in the Cohen search before federal prosecutors review them.
The decision came in a high-stakes clash over attorney-client privilege, where it was revealed that the list of other clients associated with Cohen, who represented Trump, also included one of the president's biggest supporters: Hannity.
Stephen Gillers, a New York University law professor who has written extensively on legal ethics, provides a basic primer on the privilege:
What is the basic purpose of the privilege?
Gillers: The privilege fosters the rule of law and the administration of justice. In a 2009 case, the Supreme Court wrote: "By assuring confidentiality, the privilege encourages clients to make full and frank disclosures to their attorneys, who are then better able to provide candid advice and effective representation. This, in turn, serves broader public interests in the observance of law and administration of justice."
Is the privilege absolute or are there limits to it?
Gillers: No privilege is absolute. The attorney-client privilege will be lost if there is probable cause to believe that the client was using the lawyer to commit a crime or fraud.
The privilege won't even apply if the communication was not in connection with securing legal advice, but for example, financial or business advice. Nor will it apply if third persons who are not needed to help the lawyer are present (or copied). And a lawyer who is charged with wrongdoing because of work for a client can disclose privileged communications to defend himself.
Is a formal agreement necessary to invoke the privilege?
Gillers: Formal agreements are never necessary. An attorney-client relationship can arise without one.
Does the privilege extend to protect the identity of a client? (On Tuesday, Cohen sought to protect the identity of a client who was later identified as Hannity.)
Gillers: Almost never is identity protected.
Identity is not seen as a communication, and the privilege protects communications.
In very rare circumstances, courts have protected identity but nothing in the Cohen matter would present such a circumstance.
Since Trump has publicly acknowledged knowing nothing about a payment to Stormy Daniels, does any privilege exist on that matter between the president and Cohen? (The question has Trump battling with his own Justice Department, which has asserted that "there is reason to doubt" such a privilege existed because of the president's public remarks.)
Gillers: We don't know enough to know.
Trump's denial of knowledge of the payment does not eliminate the possibility that he sought Cohen's legal advice when Daniels first emerged weeks before the election.
If the privilege applied to that advice, it would not be lost because Trump did not know of the payment.
How common is it for authorities to raid an attorney’s office?
Gillers: It is extremely rare. Lawyers are given the courtesy of a request or at least a subpoena.
The raid suggests a concern that documents might be destroyed, although Cohen claims he has voluntarily complied with prior requests. Apparently, the government was not so sure.
What rules are in place on such occasions to protect legitimate privileged communications?
Gillers: To protect privileged communications, the government uses a walled-off "taint team," although it chooses to call it a "filter team," which sounds better.
That team operates separately from the lawyers prosecuting the case and identifies whether any communications with a client of the lawyer, or between the lawyer whose files were seized and his lawyer, are privileged.
If it decides that an item is not privileged, and the lawyer disagrees, the judge will decide. The judge can also use a special master to do what the taint team would do. This has the advantage of ensuring that no government lawyer sees the seized documents until there is a final judicial decision.
(In the Cohen case, the judge has asked opposing attorneys to submit a joint proposal with four names for a potential special master, whom the judge said "could have some role" in sorting through the seized documents and determining what was privileged.)