Opinion

The Cohen Raid Doesn’t Mean Attorney-Client Privilege Is Dead, But Is it Wounded?

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Society made critical policy decisions years ago: clients should be free to speak with total confidentiality to their attorneys; patients with their doctors; penitents with their clergy; husbands with their wives.

No question, by demanding such confidentiality, the justice system can often be deprived of valuable – perhaps the most critical – evidence needed for a case. On balance, though, Society has decided that it is ultimately benefitted by encouraging people to confide. Yes, there are exceptions to these privileges, but they are typically narrowly construed by the courts – that is, judges who act as neutral deciders – to further the goals of confidentiality.  Don’t we, after all, want patients speaking freely to their doctors in order to maximize health decisions; churchgoers with their ministers to further belief objectives; clients with their lawyers to best be counseled; and spouses with each other to aid their marriages?  Yes, if the private communications are in furtherance of criminal activity, they should not be protected from disclosure in court. But absent that exception?

That said, if a client can’t speak freely with his lawyer, don’t the justice system’s goals break down? Shouldn’t a client be free to tell his lawyer what really happened, what his true settlement objectives are, and whether he has baggage from his personal life that he doesn’t want to rear its ugly head in a courtroom litigation?

So, let’s get to the real impetus behind this article: the obvious.

For reasons we are only just beginning to understand, the FBI has done a mammoth search of Michael Cohen’s law office, hotel room and safe deposit box (in addition to electronic searches). He has basically acknowledged that his role in dealing with Donald Trump is not exclusively as Trump’s lawyer – and so not everything between the two of them is attorney-client. Unquestionably, for the privilege to apply, the communication must be for the purpose of securing legal advice.  They obviously have business relationships, and therefore when they deal with each other on business matters, not involving Cohen as Trump’s lawyer, their interactions aren’t privileged.

But let’s take an out-of-the-park, crazy hypothetical! The next president (P), not Trump, admitted to his attorney (L), in what he stated was a confidential conversation in which he sought legal advice, that five years earlier P set a building he owned on fire. No one was hurt; but he lit the fuse and ran as the fire trucks arrived. Maybe, since we’re entertaining crazy hypotheticals, he even killed a business associate who knew about the arson. He asked L’s advice as his lawyer, who advised that P do nothing. (And as far as L knows, P in fact did nothing.)

L, a careful lawyer, prepared a confidential memo to the file, maybe even by dictating it, and saved it to his computer. Standard attorney-client privileged communication. The law is clear: unless P later approves its disclosure – and why would he? –  L must take that communication to his grave.  You see, this is not subject to the “crime-fraud” exception to privilege that everyone is talking about.  Crime-fraud applies when an attorney and client seek to perpetrate a crime; not when the client confesses to his lawyer that he had, in the past, committed a crime.

So 10 FBI agents do an invasive search of L’s office looking for all sorts of documents sought by a search warrant, which was authorized by a magistrate judge.  They happen upon the “arson” or “murder” dictation. No problem – all the material seized by the FBI goes to a “taint team” (or what the government now calls a “filter team”), the division of the FBI and the prosecution’s office that is reportedly not involved in any potential prosecution of P or L and which, ideally, scrupulously holds back from those actually prosecuting anything privileged. They review the arson or murder memo – shocking, indeed – and never give it, or a hint of it, to the prosecution team.

Theoretically – again, theoretically – neither the FBI agents nor prosecutors assigned to the criminal investigation will ever see, hear or know anything about the arson or murder memo – they’d be walled off. But really? There will never be a hint or a nod from the so-called “taint team” about this heinous crime, even if – remember, hypothetically – the arsonist or murderer has become the president of the United States? Interestingly, by the way, the hierarchical head of the taint team investigators, the FBI Director, is also the head of the prosecution team investigators. And the head of the taint team prosecutors is also the head of the prosecutor team prosecutors.  No winks or nods? Why would we want to place any FBI agent or prosecutor in the virtually impossible predicament of having in his possession evidence of the worst type of crime imaginable, and at the same time be obligated to keep it to himself? Why would we want to  expose even the most honorable FBI agent to such an incredible temptation?

So, how can the system going forward – it is too late to address the Trump/Cohen case currently pending in the Southern District of New York – deal with the need for the prosecutors to get the necessary, unprotected, information from L’s office, while at the same time ensuring that P is protected from an invasion of his sacred attorney-client privilege? Why not have a magistrate judge or referee present or a “special master” (as Judge Wood is currently considering in the Cohen case) at the search?  This puts the court, in the person of a magistrate, referee or special master, actually in place from the outset. This will capacitate her to decide on the spot, right away, what needs to be done and what shouldn’t be done by the FBI agents executing the search.  She then can decide the appropriate procedure and protocol that might be idiosyncratic to what she actually sees in real time, with potential input from the FBI agents present.

This does two things: first, it will seriously restrain the FBI from removing items clearly not the subject of the warrant (returning to the impetus for this article, Cohen alleges his family’s medical records were removed). Second, if there is anything that smacks as privileged, it can immediately be taken into the court’s custody by the attending magistrate judge, who can them make a determination, as to how to best determine if the document(s) are indeed privileged.

She can, for example, decide to review the materials with input from the taint team prosecutor or FBI agent, perhaps with Cohen’s attorney present –after all, Cohen knows what is in his office and will not therefore obtain something he didn’t previously know about. Yes, it’s true, in dealing with the actual case precipitating this article, although it is now too late for the magistrate to impose the protocol here for the Cohen search, Cohen (and Trump) will thereby have a better idea what the prosecutor and the FBI are interested in, but a small price to pay for ensuring that the attorney client relationship remains sacrosanct.  And if the FBI agent has something he doesn’t want Cohen and Trump to know about regarding the reason for that aspect of the search, it can be done ex partewith the attending magistrate or referee.

Why is this important? Because how the president’s rights are protected when the rubber meets the road will give the rest of us a way of knowing precisely how our rights are protected, if for some reason our lawyer’s office is searched. Agreed, it is not often that a lawyer’s offices and electronic communicators are the subject of a search warrant.  And I am not suggesting that a magistrate attend each and every FBI search. But when a lawyer’s office is searched, which is unusual although not extraordinary – whether it is the likes of a Michael Cohen who obviously has a small client inventory, or not – shouldn’t a procedure be in place to more scrupulously protect that privilege?

With a neutral magistrate and the lawyer’s lawyer, if requested, present and in place in the process to ensure that what is clearly protected by privilege will never be reviewed by anyone at the FBI, we wouldn’t later be faced by a scenario in which the president or any target has a legitimate or even illegitimate complaint that the FBI ran roughshod over his rights. As I perceive it, the challenged or challengeable materials will not be left at the searched premises, but will be retained in the sealed custody of the court – that is, the custody of a neutral. The mere participation of a magistrate or referee will surely decrease the likelihood of unwarranted excesses by agents “on a mission.”

That would be good for those who seek legal advice and, more important, good for America.

Joel Cohen is a former state and federal prosecutor, and practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School, regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of Broken Scales: Reflections on Injustice (ABA Publ. 2017). Dale J. Degenshein, special counsel at Stroock, assisted in preparing this article.

[Image via Yana Paskova/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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