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Legal Analysis

Adam Schiff Knows Even Less About Attorney-Client Privilege Than Donald Trump Jr.

Multiple media outlets rushed to endow themselves with expertise in the area of legal ethics after Donald Trump Jr. made a semi-plausible claim about attorney-client privilege in order to dodge congressional questioning over a discussion with his dad at the family high-rise in Manhattan.

Some outlets obtained such expertise quicker than others. Last night, on MSNBC‘s The Rachel Maddow Show, the host had California Representative Adam Schiff on to discuss the Younger Trump’s too-quick-by-half-witted evasion of Democratic Party super sleuths on the House Judiciary Committee.

The Schiff and Maddow conversation went as follows:

Maddow: [H]e had claimed that there was an attorney-client privilege between him and his dad and that’s why he wouldn’t testify about their conversations…

Schiff: Well that was the claim. That he wouldn’t reveal the conversations he had with his father after the emails about the meeting at Trump Tower became public because he and his attorney claimed they were protected by the attorney-client privilege. I think the claim was based on the claim that there were other attorneys present, but as I understand the privilege, the privilege exists between the attorney and their client to protect communications where you seek from your attorney counsel about your particular legal situation. They can’t be used to shield conversations between two people who don’t enjoy the privilege between themselves. And I don’t think this claim can be maintained.

As it turns out, Schiff’s understanding of legal ethics isn’t quite worth the cost of a Harvard law degree. (Schiff graduated from Harvard Law School in 1985.) The congressman made at least two big mistakes during last night’s appearance on Maddow’s show.

First of all, the attorney-client privilege can in fact be used to shield conversations between two people who wouldn’t typically enjoy the privilege between themselves–under limited circumstances. In an email to Law&Crime, one of the nation’s premier legal ethicists, New York University Professor Stephen Gillers noted:

If the other person in the room is also represented by a lawyer who, as it happens, is not there, AND if the parties have a common interest agreement, the conversation between the two clients and the lawyer for one of them on the subject of common interest agreement is privileged. But there must be a common interest agreement in effect at the time of the conversation.

Second, Schiff’s underlying explanation of why the attorney-client privilege exists in the first place is seriously off-base. He said, “the privilege exists between the attorney and their client to protect communications where you seek from your attorney counsel about your particular legal situation.” This is incorrect.

The attorney-client privilege does not exist to protect communications–that’s just something it sometimes does. Rather, the attorney-client privilege exists to encourage open and honest communication between an attorney and their client(s). The protection aspect is not the motivating function of the attorney-client privilege. Per the U.S. Supreme Court, the motivating function of the privilege is for clients to give “full and frank” disclosures to their attorneys so that their attorneys can, in turn, provide “sound advice” to their clients.

Suggesting the by-product of the privilege–occasionally-protected communications–is actually the point of the privilege is dangerously close to the idea that simply having an attorney around will take all such communications out of play. This, of course, is more or less what Trump Jr. is being accused of saying.

Schiff’s understanding of the privilege’s basic contours gibes with pop culture representations of legal doctrines and discourse, but it’s even more cartoonish than the understanding of the privilege that he was trying to poke holes in. After all, Donald Trump Jr. put congressional investigators on their heels even though they–Schiff included–could have forced the issue with some combination of superior knowledge and spine. As Gillers also noted:

The privilege is a product of statute — the federal rules of evidence — and is available only in court. However, Congress has allowed claims of privilege while making it clear over the years that this is discretionary, not a right…the only way the House can defeat the claim of privilege is to hold Trump Jr. in contempt and hash it out in court.

[image via screengrab;video courtesy MSNBC]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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