Private communications between lawyer and client for the
purpose of giving and receiving legal advice are normally privileged. Currently in the news is a restriction on the
privilege called the “crime-fraud exception.”
A client can tell his lawyer in complete safety every detail about the
murder he committed last week even if the lawyer’s silence means that the crime
will never be solved. Plans for a murder
next week, we should all be glad, are a different matter. Here the client’s
statements to the lawyer for the purpose of receiving legal advice are not
privileged. The lawyer can go to the police, or the police could get a warrant
for a search of the lawyer’s files. It is
not whether the crime was past, present, or future at the time the warrant is
sought that is determinative, but its tense at the time of the communication.
If the crime was happening right then, or ongoing, or in the future at the time
of the attorney client conference, the exception applies, and there is no
privilege.
A little hypothetical excursion into the crime-fraud
exception will take us to some plausible situations in which Trump might have
been seeking legal guidance, Cohen gave such guidance, yet the privilege should
not attach.
Case 1:
C[lient]: I am planning to do X (with details), would
that be a crime?
L[awyer]: Yes. Don’t do X.
C does X.
Exception applies; no privilege. [I nine tenths wrong here. See post of 7/2/18 for correction and elaboration.] If C’s plan involved violence, we would hope
normally hope that L would go to the authorities straight away. This standard example of the exception I have
no particular reason this will turn up in the materials seized from Cohen, but, of
course, anything is possible. (The "Don't do X" is not essential for the case to fall within the exception, but it does accentuate why we don't want the privilege to hold here.)
Case 2:
C: I am planning to do X (with details), would
that be a crime?
L: No. (L’s honest opinion.)
C does X.
X is a crime; L was mistaken.
This case is a bit harder. It does not often happen that C
will want to keep this sort of communication secret as it may support an advice
of counsel defense, which occasionally works and, when it doesn’t, it at least
changes the optics of the case. I have not found a real world example of this
sort of privilege dispute, but then I haven’t looked very far. Again, no reason to think this will show up
in the Cohen files, but it is of theoretical interest and takes us a step
towards things that may well be in those files.
I am inclined to think that the privilege ought not be
breached in Case 2. The attorney client relationship was not abused. The client
conscientiously sought to find where the line between legality and illegality
lay. The lawyer conscientiously opined on that point. The client acted on the
basis of that opinion. This is what
legal counseling is all about. It is what we want to incentivize. Of course, it
is unfortunate that the lawyer made a mistake, but we know that will sometimes
happen. As there was nothing corrupt in the conduct of either lawyer or client
the privilege should hold.
A contrary argument on Case 2 would run that what should
control is not the good or bad faith of the participants, but whether a crime
was in fact committed that was the subject of the communication. Investigating an actually committed crime, the
prosecution will have a legitimate interest in any discussions that might have
affected the crime, particularly where the discussions may bear upon the mens rea of the defendant (mental state element e.g. intentional, willful, knowing). (Here, with
attorney clearance of the proposal, the bearing on the mens rea, if any, might be helpful to the defense. It would be
less helpful to the defense if the client responded: “Well I’m glad it’s not
criminal, because I really want to cause some pain to those [bleeped].” [Replace the bleeped content here by the name
of or epithet for a racial, national, religious, or gender group specified in
applicable hate crime penalty enhancement law.])
Despite the legitimacy of the prosecution interest in Case 2
communications, I would still think the crime-fraud exception to privilege
ought not apply.
Suppose the conversation went like this:
Case 3:
C: I am planning to do X (with details), would
that be a crime?
L: No. (L’s honest opinion.) DO IT!
C does X.
X is a crime; L was mistaken.
Even if you think, as I do, that the argument for privilege
in Case 2 has the better of it, “DO IT,” surely changes things. Now L would very likely be guilty of the
independent crime of solicitation, and have liability for C’s crime as an
accessory. The crime of solicitation
took place at the time of the communication as does an element of L’s accessorial
liability for the future crime X. Clearly
the privilege should fall. (Obviously it is worse for the privilege if it were
“Yes. DO IT!”)
Case 4:
C: I would like you to do X (with details), would that be a crime?
L: No. (L’s honest opinion.) I’ll do X.
L does X.
X is a crime; L was mistaken.
This time it is C that may well be guilty of solicitation by
dint of this conversation as well as accessorial liability for L’s crime X. If Trump asked Cohen to pay Stormy, and that
payment was illegal under the campaign laws, there should be no privilege. (See final parenthetical for Case 3.)
Case
5:
C: I would like you to do X with me (with details), if that would not be a crime.
L: X is not a crime. (L’s honest opinion.) I will help you do X.
C and L each do their part in
effecting X.
X is a crime; L was mistaken.
This time the crime of conspiracy, predicated on this
agreement, is complete as soon as C or L do a significant act in furtherance of
X and the liability of each for X itself relates back to this conversation –
even if one of them would otherwise not have done enough to be guilty of X. Again, that the conversation itself is the
locus of criminal liability precludes privilege. It seems quite possible that some communications
between Trump and Cohen might be instances of Case 5 or of a variation on 5 in
which Trump anticipated that Cohen would carry out his part of the plan, or
advise Trump on his part, in a way to avoid or minimize criminal liability. It would be a conversation seeking legal
guidance, but not one protected by privilege.
I have to disagree with your first hypothetical and the scope of the crime-fraud exception to the attorney client privilege. The exception, as I have always understood it and, as I believe case law tells us, requires that the lawyer, either willingly or unknowingly, assists the client in the planning or commission of an offense. Merely advising a client that her proposed course of conduct would violate the law is not sufficient to impair the privilege even if the client rejects the lawyers advice not to do it. For example, the CEO of Big Coal, Inc. asks his general counsel about dumping coal sludge in the local river noting the Mr. Pruitt is proposing to legalize such an activity. The GC says, be that as it may, at the moment it's still against the law, don't do it. The CEO says, thanks for the advice and let's the GC go on her way. He next call outside counsel and gets an estimate of the likely penalties for illegal dumping. The CEO decides to take the risk, especially given the likely modest penalties under the present administration. I suggest that in a subsequent DOJ criminal investigation of Big Coal's illegal dumping the GC's invocation of attorney client privilege of the advice she gave to CEO would be upheld. If it were not, then the salutary purpose of the privilege, to receive sound legal advice, would be undermined. If on the other hand, the GC had at the same time as confirming the dumping's illegality, had suggested that the CEO consult outside counsel about the penalties if caught thereby suggesting to the CEO a risk-reward scenario, the analysis changes. In that case, the crime-fraud exception would apply; the lawyer assisted in the planning. In fact, so to did outside counsel, however inadvertently. Both could be required to divulge their pertinent communications with CEO. GC may also have criminal liability whereas outside counsel would not.
ReplyDeleteHere is an instance of case 1: Client: "I have installed a device on my wife's car that will disable the brakes permanently if she and when her speed exceeds 70. So nothing bad will happen if she obeys the speed limit, and if she gets killed it's her fault, not mine." Lawyer: "Wrong, if she gets killed, it's murder. Her 'fault' makes no difference here. Take the device off her car right away." Client: "No. She deserves whatever she gets." Attorney calls police, and will not face disciplinary action. He has not breached the attorney client privilege because this ongoing/future crime is within the exception. I grant that if the privilege did apply here that would have salutary incentive effects. Clients would be more likely to seek advice from lawyers when contemplating crimes, and some of them, no doubt, would be talked out of committing those crimes. (We tend to make very optimistic assumptions about clients' knowledge of the arcana of evidence law in such cases.) Here, in any event, preventing the crime should, and I think does in the case law, take precedence over the salutary incentive of keeping the privilege in place when the lawyer, in the course of giving legal counsel, learns of a future crime. It is a good thing for the lawyer to call the police, here. I am a little less sanguine about the prosecution's putting the attorney's notes of this conversation in front of the jury. (The client's defense at trial, with a different lawyer, is that he thought the device he put on the car would only cause the brakes to engage gently when the car exceeded 70, thus warning his wife that she was going too fast. That it disabled the brakes was a surprise to him.) Frankly, I think, because of the salutary incentive effects, it would be better law if the prosecution could not use these lawyer notes. However, to the best of my knowledge the privilege either applies or it doesn't. There is, so far as I know, a possibility of "not privileged for revelation by lawyer to prevent crime but privileged for other purposes."
ReplyDeleteIt is important that the privilege is purely the client's, and not the lawyer's. That the lawyer is conducting herself absolutely properly does not insure the privilege.
Last sentence of main paragraph in above comment should be "no possibility."
ReplyDeleteThe commentator here is mostly right, and I mostly wrong. See post of 7/2/18. For confession and elaboration.
ReplyDelete