Monday, April 16, 2018

What Is Attorney-Client Privilege? Not What You Think!

Many people misunderstand Attorney-Client privilege - even attorneys - and Presidents!

What is Attorney-Client privilege?  Simply stated, it is a right that may be asserted by a client to exclude evidence at trial, on the grounds that the evidence comprises confidential information communicated between a client and his attorney.  It is not the ability to keep things "secret" but rather to have them held inadmissible in court as evidence.  It cannot be used to further a criminal enterprise, nor can it be asserted by an attorney to shield himself from criminal liability.

Thus, for example, the FBI can raid the offices of your lawyer, if they suspect he is a corrupt lawyer or doing something illegal.  If attorney-client privilege prevented this, being a lawyer would be a license to unlimited criminality - or at least more than it is already.   You can't break the law and hide behind "privilege".   Oh, yea, I know, they do this all the time on television.   That's television, not reality.  Stop watching television!  It is rotting your mind!

Now, in some matters, it may be possible to keep documents "secret" up to a point, by claiming attorney-client privilege.   For example, in a civil suit, maybe there are some documents that include letters or memos to and from your attorney, that you claim privilege to.  During the "discovery" phase, your opponent makes a document request for a certain document.  You demur, claiming attorney-client privilege.  Your opponent challenges this in a hearing in court.  The judge may ask to see the document and review it in camera to determine whether it truly is privileged or not.   If he does not believe so, then the document may be provided to your opponent and perhaps admitted as evidence.

For example, during a patent case I was working on, we found a memo from the opponent's attorney saying that the Patent may be invalid because they filed it too late.  A disgruntled former employee of the company had a carbon copy of the memo.   For some reason, it was not on the opponent's privilege list - they claimed not to have a copy in their files!   We were aware of the document and it could have torpedoed their case as it was an admission that the patent was filed too late.   But, the opponent claimed the memo was protected by attorney-client privilege, and thus was inadmissible as evidence.  We had a hearing, and the judge reviewed the memo and agreed with our opponent.  If we were to prove the patent was invalid, we would have to do so through other means.  This did not mean the memo was kept secret form us or that we instantly forgot that it existed.  Of course, we could not disclose the contents to others.

The idea that you can keep things "secret" using privilege is thus flawed.   At the very least, a judge can review these documents, and your grounds for claiming privilege have to be pretty strong.   It is not a blanket proscription - you can't just take all the corporate records of your criminal enterprise, ship them to your attorney's office and claim "privilege."

My criminal law professor, Professor Starrs, used to tell us this, with regard to privilege.  "I tell my client, 'before you say anything, that if you tell me you are guilty, I will then fight to get you the most lenient sentence.  But if you don't tell me one way or another, then I will fight to make the prosecution prove its case.   Now, is there anything you want to tell me?'"   And usually, his clients would shut up at that point, rather than confess to him their crime.  As a lawyer, he could not argue his client was "innocent" when he knew him to be guilty.   But if he didn't know.... such is the fine line of legal ethics - at least for some lawyers.  Others simply don't care.

In other words, he can't be an accomplice to the crime, if he knows that a crime  has been committed or an ongoing criminal enterprise is functioning.   Obviously, other lawyers have different ethical standards than Professor Starrs.

But the idea that you can use a lawyer as a means of shielding your activities from public view or from the view of the police or the courts, is flawed.   You cannot avoid prosecution from crimes simply by claiming attorney-client privilege, if you and your attorney are in fact, partners in crime.

But again, a lot of people misunderstand this.

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