Is legal privilege limited?

Recent headlines describe a puzzling development in the prosecution of former president Trump. It seems part of the prosecution’s key evidence includes his attorney’s reflections on their conversations, a rare glimpse into a normally private relationship.

How is that possible? Isn’t communication between lawyers and their clients confidential? Has privilege been turned on its head?

It is, and it hasn’t. There are a few exceptions to that confidentiality — one of which, the crime-fraud exception, is being asserted in this case.

First, the caveats. Attorney-client privilege is statutory; that is to say, the details can vary by the laws of the state (or federal laws) which apply to a particular case. That means sometimes what is or isn’t privileged, and under what circumstances, may have a different answer in different jurisdictions.

Generally speaking, however, the principles are fairly uniform.

Why have privilege?

Like in most nations, our justice system is designed to be adversarial. There are two opposing sides in a court case, each presenting its strongest arguments before a decision-maker. If you think about it, without the protections confidentiality provides, the parties and their lawyers would be disinclined to freely communicate all relevant information and facts, because anything unfavorable could otherwise “get out” to the other side, to people they know, or to the public.

Legal situations tend to involve highly sensitive, personal, or life-impacting information. Providing that confidentiality, or “privilege,” allows clients a sort of safe zone to tell all (see exceptions below) so they can get the best and most complete advice possible from their attorneys. Privilege doesn’t end when the case does, nor even when the client dies. Once in place, it’s permanent, unless an exception applies or it’s waived by the client.

What does it cover?

Generally speaking, the attorney-client privilege protects all communications, including documents that can be considered communication. Examples include conversations, emails, recordings, text messages, letters and memoranda. The privilege protects communications created by the client as well as those created by the attorney (and their staff) for the client. It also protects the attorney’s “work product,” such as notes from a client conversation and preparations for trial. Court involvement isn’t required; the privilege includes other kinds of legal advice, such as business, estate planning, etc.

What makes something privileged?

The basic elements are (1) a communication; (2) made between privileged persons (e.g., attorney and client, or in certain situations, their agents); (3) in confidence; (4) for the purpose of seeking, obtaining, or providing legal assistance to the client.

Keep in mind that there are great volumes of cases and legal interpretations on all of this. Like human communications, privilege has nuance and gray areas. Was there an attorney-client relationship (even a brief social encounter might create one, or not)? Was the person asserting it really seeking legal advice? Is the information confidential, or can it be gotten from somewhere else? Note item 2; the presence of a non-privileged person, say, a friend along for support or a group dinner party conversation, can negate the privilege.

What are the exceptions?

While it’s not easy to lose, there are five possible exceptions to attorney-client privilege:

1) Death, in certain cases: When it’s relevant to an estate-related legal dispute, such as a fight between heirs.

2) Fiduciary duty: Corporations can be clients, but a corporate client’s fiduciary duty to its shareholders sometimes allows a privilege exception.

3) Crime or fraud: If a client seeks legal advice in furtherance of a crime or fraud, or to conceal those, then the communication isn’t privileged. In such cases, the attorney may also be considered a participant in the crime or fraud.

Other than the concealing aspect, however, if the crime or fraud is in the past, then legal advice regarding possible prosecutions, legal options, and consequences is still privileged. That’s so folks accused of a crime can still be honest with their attorneys and get the effective counsel guaranteed by the Sixth Amendment.

4) Common interest: If two persons are represented by the same attorney in a single legal matter, neither client can use the attorney-client privilege against the other in later litigation on the same subject.

5) Waiver: The privilege belongs to the client, so the client can intentionally waive it (often required in writing), or by some other act such as communicating the confidential information to someone else (other than interpreters or co-litigants).

Why have exceptions at all?

In short, to keep things rational, such as the common interest exception, and to protect the public. If attorneys could be legally used to commit crimes, perhaps against their will if they’re forced by law to keep it confidential, that’s obviously a bad scenario. Allowing privilege to be broken in such cases helps bring the truth to light to determine guilt or innocence without turning the justice system on its head, and strengthens its integrity.

And now, the disclaimer: This column doesn’t come close to covering the whole topic or all the relevant specifics and is not intended, nor could it adequately serve, as legal advice. Please seek the counsel of a qualified attorney if you need legal advice.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email sholeh@cdapress.com.