Last week we witnessed an extraordinary event: President Trump’s personal lawyer, Michael Cohen had his homes and office raided by the FBI. They left with boxes of material. This rarely happens because communications between an attorney and client are protected and law enforcement normally can’t seize any communication between them.
This story grows each day, and I don’t doubt that by the time I publish this, it will be outdated. But I find myself fascinated by the discussion around the concept of attorney client privilege. Basically, it states that you can tell your lawyer (almost) anything and he (or she) cannot be compelled to share it, even in a court of law. We honor this privilege to allow a defendant to be candid and honest with his lawyer.
But like all rights, this privilege is not absolute. President Trump has complained (once again) that he is a victim when he clearly doesn’t understand the law. He famously announced that this was the end of attorney client privilege. He said this not because of any understanding of the law but because someone made a decision he didn’t like. There are exceptions to this privilege:
Attorney client privilege doesn’t apply if your attorney wasn’t acting as an attorney. Let me give an example: You’re hoping for a job but you know that a porn star (let’s call her Stormy Davis) might leak the fact that you had sex with her four months after your wife gave birth to your son, and your attorney paid for her silence. He wasn’t acting as your lawyer and that communication isn’t privileged.
Attorney client privilege doesn’t apply if the two of you were involved in a conspiracy to break the law. Let me give an example: If your client is running for office but knows that if the voters found out the truth about an affair he had with a porn star he likely wouldn’t get elected. You obstruct justice by paying off the porn star and compel her to sign an agreement that prohibits her from telling anyone the truth, thereby denying the voters a full understanding of your character.
Attorney client privilege doesn’t apply if the attorney knows in advance that his client will lie under oath (it’s called “suborning perjury”). Let me give an example: Your client tells you he intends to lie under oath by denying having an affair with a porn star when he previously told you he did.
Mr. Cohen’s homes and offices were served with search warrants and this happens only when law enforcement are able to convince a judge that attorney client privilege has been violated. We don’t know how it was violated, but stay tuned.