Category Archives: Attorney-Client Privilege

Privilege Issues Confronting the Trump–Cohen Special Master

Attorney-Client Privilege, Work Product Doctrine • Tags: , , , , ,

As detailed in my post, Reports of the Privilege’s Death are Greatly Exaggerated, the SDNY rejected the U.S. Attorney’s request that its “taint team” conduct the initial privilege review of documents seized in the FBI’s raid on attorney Michael Cohen’s Trump Tower office.  The Court likewise rejected Cohen and President Trump’s request that their respective legal teams make the initial privilege calls.

Instead, the court, in this Order, appointed former magistrate judge Barbara S. Jones as Special Master to conduct the privilege review. Special Master Jones submitted her initial report to the Court on May 4, 2018, which you may read in full here.

To date, the USAO has produced to Cohen and Special Master Jones electronic contents of certain telephones and iPads as well as electronic copies of eight boxes of hard-copy documents. The USAO anticipates producing the final bulk of seized materials by May 11, 2018.  The privilege review is underway, and Cohen and Trump’s lawyers will provide their first privilege designations to the Special Master today, May 7, 2018.

So, what privilege issues are likely to arise requiring the Special Master’s privilege decision?  Here are a few.

Disclosure Protections

Let’s first identify the legal protections that Cohen and Trump may assert to preclude documents from federal prosecutors’ review.

Obviously, Cohen and Trump will assert protections afforded by the attorney–client privilege.  The privilege is quite narrow, as it only protects confidential communications between a client and her lawyer made for legal-advice purposes.  The privilege belongs to Cohen’s clients, not Cohen, although Cohen must assert the privilege unless his client(s) direct otherwise.

It is likely that the raid consumed communications between Cohen and his lawyers, including lawyers representing him in adult-film star Stephanie Clifford’s pending California case against Trump.  If so, Cohen owns that privilege and will certainly assert it.

A less-mentioned protection that may become operative is the work-product doctrine.  This doctrine generally protects documents evidencing an attorney or party’s opinions and mental impressions made when involved in or anticipating litigation.  Given that Cohen negotiated a non-disclosure agreement with Clifford, whether on his behalf or Trump’s, a plausible argument exists that Cohen and Trump anticipated some litigation involving her.  They will have to prove it, though.

Who are the Clients?

Special Master Jones must identify Cohen’s attorney–client relationships before analyzing the privilege elements.  Cohen disclosed that, from 2007 through January 2017, he “worked at the Trump Organization” serving in the role of “Executive Vice President and Special Counsel to Donald J. Trump.”  In this role, he “served as legal counsel to Trump Organization, Donald J. Trump.”  What do these vague statements mean from a client-identification perspective?  Special Master Jones will need to know.

In 2017–2018, Cohen also represented three other clients. He represented President Trump in the Clifford matter and Elliot Broidy, the former RNC Deputy Finance Chairman, in a non-disclosure arrangement with a former model. (New York Times story here).

And he may or may not have represented Fox News’ Sean Hannity.  Cohen says yes, but Hannity denies it.  Special Master Jones must determine whether Cohen and Hannity had an attorney–client relationship before deciding whether the privilege protects their communications from federal prosecutors’ review.

Legal Advice or Business Advice?

Cohen’s role with the Trump Organization will pose another set of privilege issues.  Special Master Jones will consider whether the privilege protects communications between Cohen and other Trump Organization employees.  The privilege only covers communications made so that the lawyer—purportedly Cohen—can render legal advice to his client (whoever that is).

The privilege will not protect Cohen’s communications involving business advice for the Trump Organization.  More…

Reports of the Privilege’s Death are Greatly Exaggerated 1

Attorney-Client Privilege • Tags: , , , , , , , ,

What a sad month for the privilege.  While I was away in trial and attending other day-job responsibilities the last few weeks, the president announced the death of the attorney–client privilege.  It was a good life, and I’m sorry to see it end.

Born in 1577 in the English case of Berd v. Lovelace, 21 Eng. Rep. 33, the privilege lived a long life that emboldened some and frustrated others.  It successfully navigated the Atlantic during Colonial America, survived a revolution and civil war, expanded during the Industrial Revolution, and withstood the Internet Age, only to perish abruptly and unceremoniously in cauldron of federal prosecutors, a president, a lawyer, and a porn star.

Rest in peace, dear privilege.

But wait. It appears the rule of law has resurrected the privilege, and it may return stronger than ever.  Let’s unfold this death-and-resurrection story. More…

Does Advice-of-Counsel Defense Waive Privilege for In-House Lawyers?

Attorney-Client Privilege, In-House Counsel, Waiver • Tags: , , ,

Aa a general rule, clients waive the attorney–client privilege when they assert an advice-of-counsel defense and, consequently, must produce their lawyer’s advice-related communications.  The waiver’s scope, however, is not as well-known.  Does the waiver apply to communications with outside counsel and in-house lawyers?

The Utah federal court faced this specific question and narrowly construed the scope of waiver.  The court held that a client’s advice-of-counsel defense waived the privilege over its communications with outside counsel, but that the waiver did not extend to its communications with in-house counsel.  Hoopes v. Owners Ins. Co., 2018 WL 1183374 (D. Utah Mar. 6, 2018).  You may read the decision here.

Bad-Faith Claim

A Geico insured struck an 11-year-old pedestrian on Main Street in Heber City, causing severe injuries to the minor. Geico paid its insurance limits, but the minor’s mother filed breach-of-contract and bad-faith claims against her uninsured-motorist carrier when it failed to promptly settle that matter.

The UIM carrier had retained outside counsel to investigate and opine on coverage and payment issues.  The carrier asserted the advice-of-counsel defense and agreed that the defense waived the privilege over its communications with outside counsel.  The carrier, however, refused to produce communications between its claims adjuster and in-house lawyer.

Sword and Shield

The mother moved to compel the claims-adjuster–in-house lawyer communications, essentially arguing that waiver is a broad concept and must include all advice-related communications, including those with in-house counsel. More…