Curious complications come up when the attorney-client privilege is breached. When Donald Trump was arraigned in Florida on federal charges, a condition of the former president’s bail was that he not discuss the case with anyone who might be a witness. But did that mean Trump couldn’t speak with Evan Corcoran? One of Trump’s lawyers, Corcoran has already testified before the federal grand jury in Florida about his interactions with his client. The testimony was not, it appears, to his client’s benefit. A charge of obstruction was brought against Trump based on the allegation that he misled Corcoran, leading the lawyer, in turn, to make false claims to the federal government. Corcoran “memorialized” the instructions the former president gave him. That is, he took notes – notes the attorney eventually turned over to the special counsel seeking an indictment.
“One of the key witnesses that we know is still the president’s lawyer,” argued one of Trump’s attorneys, Todd Blanche. He told the federal judge that “a special condition that President Trump cannot communicate with his lawyer, obviously doesn’t work, respectfully, your honor.”
It wasn’t the first time Donald Trump has found he couldn’t rely on the attorney-client privilege, or on other expectations of confidentiality in his communications with lawyers. Michael Cohen, it will be remembered, was Trump’s long-time personal lawyer. He had a central role in the Stormy Daniels affair, which led the FBI to search not only Cohen’s office but also the hotel suite where he lived. The documents seized were in the thousands, if not more. Trump turned to Twitter to declare, “Attorney-client privilege is dead!”
Trump may not be wrong if he thinks the Department of Justice, and Democrats more broadly, have demonstrated a willingness – an eagerness – to put the screws to lawyers representing him. It’s not just Evan Corcoran who looks likely to be called as a witness against him, but also Christina Bobb, who found herself under Justice Department scrutiny within months of joining the Trump legal team last year. Like Corcoran, Bobb was required to testify before a grand jury. Trump White House lawyers Pat Cipollone and Patrick Philbin were compelled to give evidence to a grand jury not once but twice, despite Trump asserting both executive privilege and attorney-client privilege.
Corcoran reportedly did assert the attorney-client privilege in an effort not to testify regarding his client and the disposition of boxes storing documents from Trump’s presidency, but federal judge Beryl Howell ruled in favor of the government, which argued Trump had forfeited the protection of the privilege by using his lawyer to break the law, in what is known as the “crime-fraud” exception to the privilege.
The crime-fraud exception holds that a “lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent.” Even so, that exception is limited, according to the American Bar Association. It does not, for example, “require the lawyer to reveal the client’s misconduct” other than in certain circumstances.
The narrowness of those circumstances is a measure of the protection the privilege has traditionally been afforded, a protection needed for lawyers to do their job at all.
“A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation … The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” The ABA maintains that a “lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct.”
Consider the trials and travails of Paul Manafort. Back when Robert Mueller was a special counsel trying to prove members of the Trump team were playing footsie with foreign governments and government officials, Judge Beryl Howell (again) allowed Mueller to force testimony by Manafort’s former attorney. One might say that’s what happens when you forget to report to the IRS millions in foreign payments stashed in foreign bank accounts and fail to register as the agent of a foreign principal when FARA requires it. At least that’s what happens if you are a foreign lobbyist who hitches your star to Donald Trump. It has been observed that the consequences of these behaviors seem to be remarkably different if one is named Hunter Biden.
What does it mean for defendants who are not celebrities that the crime-fraud exception has been invoked successfully by the government in a case as high-profile as the prosecution of a former president? Are the exceptions to the attorney-client privilege likely to be invoked more often, as prosecutors enjoy the advantage that comes from riffling through a defendant’s legal documents and communications? Or will the government be less aggressive in cases that don’t involve Donald Trump?
Lisa G. Lerman is professor of law emerita at the Catholic University of America and author of “The Ethical Problems in the Practice of Law.” She says the federal court’s seizure of Trump’s lawyer’s notes isn’t out of the ordinary as a matter of law, but is notable for being clear-cut, and not a muddy judgment call. “The decision about Evan Corcoran's notes may be the most vivid example I've ever seen of a client endeavoring to pressure a lawyer to help him to unlawfully withhold documents and to lie to the investigators,” said Lerman. “It is a textbook case that illustrates a proper application of the crime-fraud exception to attorney-client privilege,” she told Real Clear Politics.
One experienced Washington litigator interviewed by Real Clear Politics, but who asked not to be quoted by name, is far less sanguine. He says it is all too common for prosecutors to try to get their hands on lawyer-client communications as it is. He worries the eagerness to pursue Trump is leading to the erosion of one of the most fundamental norms in Anglo-American law. “The protection of communications between lawyers and their clients is the foundation of our legal system,” he said, adding he was “shocked” by how thoroughly the privilege has been breached in the Trump case.
“It's possible that judges have become more willing to consider whether communications fall within the exceptions,” says William H. Simon, professor of law emeritus at Columbia Law School. He told RealClearPolitics that there may not be any change going on in how the exceptions to the privilege are enforced, but the fight over lawyer confidentiality may simply be more visible because of the very public nature of Trump’s conflict with prosecutors, or because of what Simon calls “the flagrancy of his contempt for law.”
Stephen Gillers, a professor at NYU School of Law, scoffs at the notion courts are setting a bad precedent in denying the former president the right to confidentiality in his conversations with his lawyers. “Application of the exception to Trump's communications with his lawyers will not in the slightest affect the privilege,” Gillers told RealClearPolitics. “It is no different from application of the exception to communications of hundreds of other defendants with their lawyers over the decades, with no dilution of the protection of the privilege where there is no crime or fraud.”
But when it comes to clients other than Trump, legal professionals are far more zealous in arguing the importance of the privileges that come with their position.
Last year, Congress considered new limits on lawyer-client confidentiality. Lawmakers nearly passed legislation, the Enablers Act, that would have required attorneys to alert regulators and prosecutors of any fishy financial transactions by their clients. Lawyers would have been treated like bankers, required to do due diligence about their clients and report any “suspicious activities.” The legal profession went into overdrive, pushing back against what it saw as a threat to the privilege that distinguishes lawyers from other professionals, the privilege of confidentiality that makes attorneys more like priests than mere businessmen.
“The attorney-client privilege and the lawyer’s ethical duty of confidentiality are bedrock legal principles that have been developed and enforced by the courts and that lawyers are required to follow,” the ABA emphasized in a letter to senators. “Both principles enable clients to communicate with their lawyers in confidence, which is essential to preserving clients’ fundamental right to the effective assistance of counsel.”
As for the Supreme Court, it has not set these boundaries definitively. In a unanimous 1933 decision, the justices noted in passing that the “privilege takes flight if the relation is abused.” The court added, “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”
Yet that case, Clark v. United States, did not involve attorney-client privilege at all. It was about juror misconduct; Justice Benjamin Cardozo, who wrote the opinion, was merely using attorney-client privilege as an analogy.
More recently, the court had shored up the principle. In Upjohn v. U.S., the court noted, “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Its purpose? To “encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” The high court ruled that the attorney-client “privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.”
If the trials of Trump do lead to the erosion of the attorney-client privilege, we will see yet another important legal norm damaged, not, perhaps by Trump himself, but by those determined to see him punished and ruined. Which leaves the question: If the protections traditionally afforded defendants are weakened, will the blame be Trump’s or his pursuers?