Recently, a judge ruled that attorneys had to testify about conversations they had with Donald Trump regarding classified documents at Mar-a-Lago. They were told they had to break attorney-client privilege and disclose what they said. Forcing an attorney to break privilege is an extreme action that appears to be happening more frequently.
Attorney-client confidentiality is a central concept of American law. Yet this privilege can hide, not enable, illegal behavior. There will be increased pressure to force lawyers to rat on their clients, unless the legal community is more serious about self-regulation to ensure attorneys don’t give legal advice to clients to help them break the law.
Attorney-client privilege exists to encourage individuals to seek legal advice. As Chief Justice William Rehnquist once stated, “The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.”
Privilege exists to facilitate finding and frank communication between an attorney and client. Without such a privilege, the argument goes, individuals may forego legal advice to their detriment, and attorneys would lose the ability to advise clients and encourage conformity to the law.
The Crime-Fraud Exception
However, privilege is not absolute, and there are many exceptions. One recent example, especially in relation to former President Donald Trump and his attorneys, is the crime-fraud exception. For most lawyers and attorneys, this is a mystery.
There are really two parts to this exception. One is grounded in the ethical obligation of attorneys not to provide legal advice to individuals who want to break the law. The second is the burden the government must overcome to introduce evidence of what clients said to their attorneys while seeking legal advice.
Imagine we divide the world into past, present, and future. An individual says, “I killed someone a year ago. Can you represent me?” There is no problem providing representation here. In our society there is a presumption of innocence and the government bears the burden to prove guilt.
Attorneys help clients defend themselves. In seeking this help, clients and attorneys should have confidence that their communications are protected against disclosure.
But imagine a different scenario. Someone says, “I am trying to kill someone or want to kill someone. I need legal advice on how to do it and get away with it.” The crime-fraud exception says I cannot provide legal advice to anyone to help them commit or plan a crime.
The reasoning is simple. To provide legal advice regarding how to break the law presently or in the future is a crime. It may be conspiracy to obstruct justice, aid and abet, or perhaps even rise to be a co-defendant.
Lawyers have an ethical and legal obligation not to help others break the law. Our job is to discourage law breaking and encourage conformity to the law. We do provide legal advice, especially with knowledge of a client’s illegal or bad intent. Attorney-client confidentiality should not shield conversations.
Rule 1.6 of the Model Rules of Professional Conduct, the basis of state ethics codes for attorneys across the country, makes it permissive to break confidentiality to forestall or prevent client behavior like this from causing substantial bodily or financial harm to others.
Notice that the duty to break confidentiality is permissive not mandatory. Other professions, such as in psychiatry, create mandatory duties of doctors to disclose dangerous clients. Many other professions have mandatory disclosure rules too.
But the other part of the crime-fraud exception turns on when the government suspects that an attorney has wittingly or not offered legal advice to a client that is used to break the law.
Here in cases such as United States v. Zolin and United States v. Chen, courts have said that the government can make offer a prima facie showing that client was engaged in illegal activity when seeking the legal advice, then a court may undertake an in camera review of the attorney’s file to decide there is information there that serves as evidence of a crime.
That information may be used in court or in the case of Michael Cohen to compel him to testify about potential illegal payments to Stormy Daniels or other Trump attorneys to testify about his handling of classified documents found at Mar-a-Lago.
Using the crime-fraud exception is an extreme tool. Attorney-client communications should be shielded. But its apparent increased use is a product of the legal profession and attorneys failing to self-regulate themselves and police their clients.
In the last 25 years, stories of what legal advice was provided by Enron attorneys and those advising corporations involved in the 2008 financial meltdown raised questions about whether they turn a blind eye to bad client behavior and perhaps enable it.
This is the question too with Trump’s attorneys in New York, Washington, and perhaps in Georgia as rumors of a Trump indictment play out there too. What did they know and what type of legal advice or action did they take to try to discourage him from breaking the law? The same question no doubt will surface as the evolving story of bank failures continue to unfold.
Attorneys occupy a near-privileged position in our society. Part of the low public opinion toward them might be rooted in the abuse of that privilege. Some attorneys continue to ignore client bad behavior and do nothing to prevent it.
If that behavior persists, the law may impose more restrictions on attorney-client privilege and mandate more attorney whistleblowing on clients.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
David Schultz is a professor of political science and legal studies at Hamline University and a professor of law at University of Minnesota.