The attorney-client privilege is, in essence, the right of both the client and the attorney to be sure that information that the client provides to their attorney cannot be accessed by third parties. Attorney-client privilege is actually an evidentiary rule, that is, a rule of law. This is different from an attorney’s duty of confidentiality to a client (i.e. to hold what a client tells them confidential).
In fact, Black’s Law Dictionary defines “privilege” as “a special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.”
As Cornell Law explains, “Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath.”
And one of the great legal scholars, and expert on the legal rules of evidence, John Wigmore, stated that the attorney-client privilege exists “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by him or by the legal adviser, (8) except the protection be waived.”
Or, to put it a bit more clearly, as the Constitution Center has explained Professor Wigmore’s tests:
“The communications must originate in a confidence that they will not be disclosed.
This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
The relation must be one which, in the opinion of the community, ought to be sedulously fostered.
The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.”
Hrrm…perhaps with terms like “sedulously” that isn’t really any clearer. The dictionary defines ‘sedulously’ (from the Latin ‘sedulus’) as “attentive, painstaking, diligent, busy, zealous.”
The bottom line is that the attorney-client privilege is a legal construct that primarily comes up when there is a legal proceeding or other government action.
At the most basic level, in order for there to be an attorney-client privilege there needs to be an attorney, and a client. This may seem obvious, however in order for there to be a client, there must be an attorney-client relationship. This means that there must have been an intent to form an attorney-client relationship, usually an intent that was exhibited by both the attorney and the intended client. (That said, courts often give great weight to the ‘client’ in situations where the individual believed that they had an attorney-client relationship, but in fact technically did not, such as when consulting with an attorney in order to determine whether or not to hire them.)
The clearest way to prove that there was an attorney-client relationship is by the client having retained the attorney. This is demonstrated by both the existence of a retainer agreement signed by both parties, and the client having given a retainer to the attorney (this gets into how a legal contract is formed, which is another subject for another time). That said, again, it has generally been held that the attorney-client privilege can be extended to communications between an attorney and a prospective client, if the client had an expectation of confidentiality.
All this said, even where it may otherwise be found to exist, the attorney-client privilege is not absolute. Even assuming that there is a clear attorney-client relationship, not every word uttered by a client, nor every topic, falls under the protection of attorney-client privilege. It does not extend to all communications between a client and their attorney. And, even where the attorney-client privilege applies, it can be waived or broken, either intentionally or unintentionally (or even unknowingly).
In fact, there are several situations in which either the attorney-client privilege will be considered broken, or never to have existed at all.
For example, there is no attorney-client privilege if the client is telling the attorney something that is already public knowledge.
The attorney-client privilege doesn’t exist if the client is telling the attorney about a crime that they are in the process of committing or intend to commit. In some states the attorney-client privilege doesn’t exist even if the client is telling the attorney about some other action they are intending to commit that doesn’t rise to the level of criminal, but is still actionable under the law – for example a business owner seeking information about how to go about conducting unlawful hiring practices.
The attorney-client privilege also does not exist if the client was not actually seeking legal advice. For example, if a client were to ask their attorney what they considered to be the better vehicle, a sedan or a minivan.
The attorney-client privilege generally doesn’t exist when the client shares the communication in the presence of a third party who is not otherwise related to the subject at hand or not in the employ or an agent of either the client or the attorney.
Finally (at least for the purposes of this article, as of course we could go on and on), the attorney-client privilege can be waived or broken when the client shares the same information with someone else.
Now, if you are reading this article around the time that it was posted, it’s likely that you are reading it as a result of the recent public congressional hearing in which Michael Cohen was testifying. During that testimony, Mr. Cohen indicated that he had about “100 tapes” containing conversations with other individuals that he had taped*, in addition to having taped conversations with his long-time client Donald Trump (President of the United States at the time of the hearing). Mr. Cohen, in his testimony before the congressional committee, then offered to produce the 100 tapes, if the committee so desired.
(*Mr. Cohen’s law practice was in New York, which is a so-called ‘one-party consent state’, meaning that it is permissible to record a conversation even if only one of the parties to that conversation consents (knows about it) – the idea being that it is perfectly legal to record your own conversations.)
This has led to a general outcry – or at least general confusion – over Mr. Cohen making this offer. While he had been disbarred just the day before his testimony, for crimes he had committed, that does not remove the attorney-client privilege for communications that in fact are subject to the attorney-client privilege.
Now remember, again, that there is a difference between the attorney-client privilege (a legal construct), and a lawyer’s duty of confidentiality to a client.
Only a court of law can actually decide whether the attorney-client privilege exists for those tapes. The attorney-client privilege is something that is asserted by one (or both) of the parties in the face of a demand for production of those communications, similar to how a witness or defendant can assert their rights to remain silent under the 5th Amendment.
On the other hand, the duty of confidentiality – to hold their clients’ communications confidential – is an ethical duty and obligation placed on lawyers (which is just another word for attorney) who are admitted to the bar. Most states and state bars follow the model rules of professional conduct of the American Bar Association which say, with respect to an attorney’s duty of confidentiality:
a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Now, when, during the hearing, members of congress expressed shock that Mr. Cohen had offered to provide those tapes of conversations that he had had with other clients, Mr. Cohen replied that those tapes were already in the hands of others. Meaning that even if the content of those tapes would otherwise have been subject to his duty to hold the communication confidential, it had already been exposed to others.
Moreover, if you look at item #6 of the rules of professional conduct above, one of the exceptions to the rule of an attorney holding a client communication confidential is “to comply with other law or a court order.”
We can’t know for sure, because the information has not been provided to the public, but when Mr. Cohen said “others already have the tapes”, it’s likely that he was talking about various law enforcement and intelligence agencies. And certainly providing the tapes to a congressional committee who says that they want them is the functional equivalent of “complying with other law or a court order.”
Some have asked whether, once disbarred, a lawyer is relieved of their ethical duty of confidentiality. That is, of course, an ethical (and moral) question. Lawyers who breach their ethical professional duties are subject to censure, and even disbarment – which of course has already happened in Mr. Cohen’s case.
But even more to the point, nobody – other than Mr. Cohen, the other parties, and those who have heard the tapes – knows who is on the other end of those taped conversations, let alone the subject matter. It’s entirely possible that they were not people who had an attorney-client relationship with Mr. Cohen, or who, even if they were clients, were having conversations that could be considered confidential, let alone privileged. “How’s the weather over there in the city?” is not the stuff of privileged communications.
We will probably never know the content of those tapes, but at least now you hopefully know a bit more about attorney-client privilege.