Attorney-client privilege is intended to protect lawyers from having to testify against a client and to keep communications related to a client’s defense secret. And who would argue against this basic benefit afforded to those seeking legal advice and those dispensing it? After all, how could a client ever reveal the details of their experience if they had to worry that those details would later be revealed?
In the case of former President Donald Trump, attorney-client privilege has been ruled secondary to what is known as the crime-fraud exception, and the former president’s defense attorney, Evan Corocan, must testify as to what he knows about the potential mishandling of classified documents. Additionally, both hand-written and transcribed notes related to Corcoran’s representation of Mr. Trump in the matter will be made available to the court. So, it seems attorney-client privilege is not always as clear-cut as one might imagine. For clients counting on the privilege, it is worth understanding what it entails and when it may go up in smoke.
Any communications, oral or written, between a client and their attorney related to legal advice that occur with the expectation of confidence are protected by attorney-client privilege, and that includes the attorney’s staff who may facilitate communications. Even prospective clients who seek and receive legal advice are protected by the privilege, assuming the attorney made no attempts to deter them from relying on that advice.
Keeping it Confidential
In order to maintain the privilege, the material must remain confidential. Discussing matters outside the legal relationship or with a third-party present could nullify the privilege. Even something as simple as communicating through a work email account constitutes giving up confidentiality.
In general, attorney-client privilege protects material from showing up in a trial, although there are certain exceptions to that rule:
- Corporations do not enjoy attorney-client privilege when pitted against shareholders if shareholders can establish cause to breach it;
- When it can be demonstrated that there is an overriding public policy interest, the privilege may be revoked;
- When the client communicates with the attorney with the intention of covering up a crime or fraud—known as the crime-fraud exception.
Detailing the Crime-Fraud Exception
Certain information is not protected by attorney-client privilege because it falls under the crime-fraud exception:
- Threats made by a client against others, including adversaries in the case, witnesses, the judge, etc., must be reported by the attorney representing said client;
- When an attorney knows their client has lied or will lie in sworn testimony, it must be reported. It is incumbent upon attorneys not to knowingly present false or perjured evidence to the court;
- When the attorney has knowingly helped to cover up a crime, they may be compelled to testify as to what they know.