One of the most sacred forms of confidentiality in the law is the attorney-client
privilege. Most people know the things they tell their lawyers will never
be revealed to the world.
In the great majority of cases, that’s true. This is for a good reason:
a lawyer cannot effectively represent a client unless the client is free
to tell the lawyer everything about their situation. This bond of trust
is one of the cornerstones of the attorney-client relationship and our
whole legal system.
Nevertheless, in law there are very few “absolutes.” Even lawyer-client
confidentiality has some exceptions.
One example is the crime-fraud exception. One has no privilege if they
enlist a lawyer to help them commit a crime or a fraud. A lawyer cannot
act as a shield for a client in the process of carrying out a conspiracy
or other serious misdeeds.
Another issue is whether a lawyer-client relationship truly exists. If
a lawyer makes a deal for a client without consulting the client, and
the client doesn’t know about the deal, then no real relationship
exists for that transaction. That can be true even if other transactions
truly undertaken by the lawyer and client together are still protected.
It appears that these exceptions to the privilege were invoked by federal
investigators who sought a warrant to search the premises of President
Trump’s personal lawyer, Michael Cohen. Although the warrant must
have received extra scrutiny, a federal magistrate ultimately agreed to
issue it. That tells us that the magistrate agreed that some exceptions
While the Cohen search understandably grabbed a lot of attention, the reality
is that we sometimes have to fight about the attorney-client privilege
in our practice too. We clash with people on the defense side who try
to erode the privilege in situations less sensational, but equally important.
For example, defense attorneys have argued that a lawyer giving an injured
client the name of a physician who could treat them is not covered by
the attorney-client privilege. Defense attorneys argued in the last few
years that giving a client the name of a physician is a “fact,”
not a “communication.” Yes, this is as dumb as it sounds:
it amounts to slapping a different label on a communication so you can
say it isn’t a communication. Fortunately, this pseudo-distinction
was rightly rejected by the Florida Supreme Court in a case last year,
and the privilege was preserved.
Other times, we have had non-lawyers, such as insurance adjusters, just
bluntly ask our clients things which are clearly off limits. Adjusters
sometimes try to ask client when they hired their lawyers, and sometimes
even about attorney-client conversations. A minimally competent insurance
adjuster should know better, but we have still seen this happen.
The attorney-client privilege is sacred, but it’s not invincible.
Clients should be sure to hire lawyers who jealously protect their confidentiality
whenever they are entitled to it.