Recent news events have drawn attention to the importance of attorney-client privilege. A federal magistrate judge granted a search warrant on April 9 allowing the FBI to raid attorney Michael Cohen’s offices and seize documents including messages from attorney-clients. Mr. Cohen is President Trump’s personal attorney. Questions have since emerged as to whether the attorney-client privilege in this case has been breached. Attorneys on both sides continue to disagree over what confidentiality would protect information obtained in the raid and what information should be revealed to the judge, opposing lawyers, and the media, if any.
The’ right of attorney-client’ is a privilege belonging to the client that guarantees that all knowledge exchanged with his or her attorney by the client is kept in the strictest trust. The lawyer does not and will not share with others without the permission of the client the details of customer conversations. This ensures that, whether or not they are interested in the case, the data will not be shared with law enforcement, a lawyer, or any other person.
In this nation, this privilege has been honored for over 200 years. The statute that preserves the confidentiality shared between lawyer and client is the highest concern by judges, law enforcement, prosecutors, and all other attorneys. A lawyer who breaks this right or does not maintain the trust of his client faces significant challenges to his or her own career, including the potential revocation of a law practice license.
The object of this privilege is to facilitate candid conversation between the attorney and the client, so that the interests of the client are secured, and the attorney may obtain all the details required to properly represent the client in the legal matter at hand.
In certain situations, a client needs a family member or close friend in a case to know all the information and/or be present during conversations with the lawyer. Although I can understand that, before they address the case with anyone, I typically like to speak to my customers about the pros and cons of that decision. I also advise a client not to share the data with other friends or family members. In my conversations with customers, I also generally discourage the involvement of third parties.
However, in the end, the decision to share the data rests with the customer. If a client wishes to share privileged data with another person, we say that the client has “waived the privilege of the attorney-client.”
I discourage my clients from talking to someone else about aspects of their cases until the case is over and the matter is closed. Most particularly, this is true in criminal cases. Anyone with whom the client speaks might potentially be called to testify about what the client said in court.
In the first meeting with the lawyer, a person who is seeking representation by a lawyer may need to share some details about the case. This typically takes place via a private phone call or an attorney’s in-person conference. At Dearie, Fischer & Mathews, during the first call, we will protect all sensitive information exchanged. When the client actually employs an attorney for representation, the attorney-client relationship officially begins. At this point, all confidential knowledge that the client shares with the attorney is undoubtedly added to the attorney-client privilege. Both discussions with the solicitor are confidential from then on, even after the case has concluded, and even if the client dies.
Any of the data which is part of the case of a client would be a matter of public record. The fact that in court a client has been formally charged, and the name of the prosecutor in the case, is public. This information can be shared by the lawyer with others. Generally speaking, unless necessary to do so by statute or asked to do so by the client, our lawyers would also not share this information with another party.
If the protected attorney client is breached, we believe the right has been “pierced.” There are exceptional cases in which a judge orders this. If there is ample proof that a client’s relationship with a lawyer is dishonest, or if there is evidence that they have conspired together to commit a crime, they will be compelled to reveal the content of their communications and correspondence. This is incredibly unusual. I’ve never been part of a case where the right was pierced on either hand in my 25 years of practicing law.