Warrant details released regarding FBI raid of Michael Cohen’s office
Attorney Robert Marasco joined Good Morning San Diego to discuss the limits to attorney-client privilege after the FBI raid of Michael Cohen’s office.
The attorney-client privilege is not written into the U.S. Constitution or federal law, but it is “one of the oldest recognized privileges for confidential communications,” then-Chief Justice William H. Rehnquist wrote 20 years ago.
“The privilege is intended to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.”
But it is not an absolute or unlimited protection for privacy, he added, saying it should be “interpreted in the light of reason and experience.”
Rehnquist spoke for the Supreme Court in 1998 when it upheld a privilege claim by a Washington lawyer who had taken notes when a deeply troubled White House deputy counsel, Vincent Foster, came to see him. Less than two weeks later, Foster committed suicide and independent counsel Kenneth Starr went to court years later demanding to see the notes. By a 6-3 vote, the Supreme Court refused, saying that the shield of confidentiality did not die with the client.
But at other times in that era, the justices sided with the independent counsel and decided President Clinton’s White House lawyers could not invoke the attorney-client privilege to shield their conversations or notes.
The issue arose again this week as the FBI raided the New York offices of President Trump’s personal attorney, Michael Cohen. Investigators reportedly were looking for information about payments made by Cohen to women alleged to have had affairs with Trump, including adult-film actress Stormy Daniels.
“Attorney-client privilege is dead!” a furious Trump tweeted Tuesday.
So what is the purpose of the attorney-client privilege?
It allows clients who have a legal problem to talk candidly with a lawyer. Under ordinary rules, any person who has witnessed or heard about a crime can be required to testify about it. But if that ordinary rule applied in law offices, no one would feel comfortable speaking to a lawyer because it could result in confessing to a crime.
While the privilege is seen as necessary for legal practice, “there has always been some anxiety about the privilege,” legal scholar and ethics expert Geoffrey Hazard once wrote. It is “not only a principle of privacy, but also a device for coverups.”
What are the limits to the privilege?
The most commonly cited limit is the “crime-fraud exception.” Generally, a lawyer and his client cannot be compelled to talk about past crimes. But if the lawyer is working with the client to carry out a continuing or future crime — for example, by preparing a false document or to pay off a witness — their dealings are probably not shielded.
Legal experts also say the privacy privilege covers only specific legal matters and advice, and not all of the possible discussions between a lawyer and a client.