TRUMP’S LAWYER AND ATTORNEY-CLIENT PRIVILEGE

The recent search of President Trump’s Lawyer, Michael Cohen’s, office, home, safety deposit box, and hotel room is a very big deal when it comes to issues of attorney-client privilege and client confidentiality.  It has been reported that the search is part of an investigation into Cohen for possible bank fraud and wire fraud. President Trump has tweeted that attorney-client privilege was “dead” and “now a thing of the past.”  As the case before Judge Kimba Wood in the Southern District of New York is demonstrating, President Trump is wrong and he just doesn’t understand attorney-client privilege.

Judge Wood has yet to decide who will have the first look at materials the government seized with the search warrant, though she has signaled that it won’t be President Trump, most likely won’t be Cohen, and may not be a government “taint” team walled off from the prosecutors doing involved in the investigation.  Rather, it is more likely that Judge Wood will appoint a special master to review the material and decide what is and is not covered by attorney-client privilege and possibly work-product.  Both attorney-client privilege and work product are allied with client confidentiality, and all three rules or doctrines are based on the assumption that effective legal representation requires free and open communication between client and counsel.  All three are aimed at encouraging such open communication by keeping certain information from one’s adversary and the public.

Faculty teaching attorney-client privilege, client confidentiality, and work-product should think about using the issues Judge Wood and possibly a special master have to consider.   For example, the materials seized will likely contain the following information:

  • Client names;
  • Communications between Cohen and clients; and
  • Possible materials prepared in anticipation of litigation if Cohen worked on any matters in which litigation was a possibility.

Ask your students to be the special master, and ask them to identify which category or categories apply to the above materials or information.  When it comes to the communications between Cohen and clients, the students will need more information to see if the communications fit the definition of attorney-client privilege:  (1) a communication; (2) made between privileged persons (typically the lawyer and client); (3) in confidence; and (4) for the purposed of obtaining or providing legal advice or other assistance to the client.  Communications that do not involve legal advice would not be covered.  Also, communications in furtherance of a crime or fraud would fit the crime fraud exception.

When it comes to client names, they are not covered by attorney-client privilege.  On the other hand, the names may be covered by client confidentiality as “information relating to the representation of a client” under Rule 1.6(a), as New York State Bar Association Ethics Opinion 1088 (2016) explains.  There are some state advisory ethics opinions take a different position, such as California Formal Op. 2011-182 (2011), which stated:  “In most situations, a client’s identity is not considered confidential . . . .”  This is just another reminder that it is important for a lawyer to research and understand how one’s jurisdiction is likely to approach ethics issues.

Federal Circuit Recognizes Independent Patent Agent Privilege

This week, the Federal Circuit found that “patent agent”-client privilege exists independent from the attorney-client privilege, resolving a district court split, according to IPethics and INsights.

While the court recognized the “presumption against the recognition of new privileges,” including that “courts have consistently refused to recognize as privileged communications with other non-attorney client advocates,” it  found “that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.”

I find this decision particularly interesting in light of the increasing numbers of non-lawyer legal services providers.  While the privilege will no doubt remain sacred, the court’s reasoning did rely on the “clear congressional intent to authorize an agency to create and regulate a group of individuals with specific authority to engage in the practice of law,” a factor which will no doubt be relevant as our regulatory scheme increasingly embraces alternative legal service providers.

h/t to Wake Law Student and Patent Agent John Sears.