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On Attorney-Client Privilege And The Question Before Judge Wood

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Asked about the attorney-client privilege by my colleague and friend Stephanie Rhule on MSNBC Monday, I managed to get out something like “Believe it or not, Sean Hannity may not have known he was Michal Cohen’s client.”

Then time ran out and I couldn’t explain how Sean could easily have the privilege attached to his conversation and not even know it as many laymen wouldn’t. Watching a few years of CSI doesn’t make anyone expert in these matters. The Model Code of Professional Responsibility and the Bar Examiners of the many states do.

After the raid on Michael Cohen’s office, home and hotel, I took the time with both of my law school classes later in the day to make sure my law students understand this as well: You can end up being someone’s lawyer in the blink of an eye, so be careful about that. Further, the attorney-client privilege belongs to the client, not the attorney, and if advice is asked of a lawyer as a lawyer in confidence, whether or not paid for, and whether or not a retainer agreement is signed, that confidential communication is attorney-client privileged unless either the lawyer asked is explicit in rejecting the appeal or conditioning it on the response not being covered, or subject to an exception such as its being part of a criminal enterprise.

I stressed these things to my students because, unlike journalism, the law is a profession, and breaking its rules often means disbarment and worse. The late, great Michael Kelly, a regular guest on my radio show until his death on April 3, 2003 during the invasion of Iraq and the march to Baghdad, said a dozen times on air that “journalism is a craft, not a profession.”

Professions have rules that are enforceable, crafts have different standards and enforcement belongs to a thousand different organizations with just as many standards.

Not so the law. Keeping a client’s confidences is one of the highest obligations a lawyer has, and to get the parameters and importance of that obligation right I asked for some specifics from my law partner, former Former Federal District Court Judge Stephe Larson —also formerly the head of the Organized Crime and Racketeering United of the United States Attorney’s Office in Los Angeles— why the privilege mattered so.

“The attorney client communication privilege is one of the foundational cornerstones of our constitutional justice system,” Larson wrote back. “Anyone committed to liberty and the rule of law should view government intrusion into that relationship, especially when accomplished by sealed affidavits and proceedings, with grave concern.”

Larson is one of the country’s very best white collar criminal defense lawyers and is often called on the dive into sensitive internal investigations, and has to battle, successfully, prosecutorial misconduct. He knows it exists though of course he doesn’t know if it is present in the matter of the seizure of Michael Cohen’s files. Judge Larson’s prosecutor’s DNA and experience, though, informs his views of the privilege, and of the problems associated with seizing an attorney’s files.

“Unfortunately,” he said when I asked about Hannity’s (and the president’s and Elliot Broidy’s privileged communications) “there is no effective mechanism to challenge an illegal or improper search warrant before prosecution other than a Rule 41(g) motion for return of property, which suffers from the square peg/round hole problem — the rule and cases interpreting the rule concern returning property needed by a subject of a search, not challenging the propriety of or invalidating the search warrant itself.”

“Reviewing documents for privilege is a judicial function,”he continued, “not an executive one.”

“So-called ‘taint’ or filter teams composed of law enforcement agents is tantamount to assigning the fox to inspect the chicken coop, Larson concluded. “A special master, who is truly independent and responsible only to the Court, is the only assurance that critical rights will be preserved.”

Lots of members of the media and plenty of Democrats dislike the president so much —and my friend Sean as well— that they will overlook this fracturing of a foundational privilege and jump to the conclusion that Cohen doesn’t deserve an presumption of having been an attorney either because of the sporadic nature of his communications with Hannity, and Sean’s comments regarding them.

But as the very honorable Ben Wittes also said on MSNBC Monday morning, it is very possible that both Cohen’s lawyers and Hannity’s comments can be reconciled. Wittes is a critic of the president but he also knows his rules of professional responsibility. As the media should.

This isn’t a small thing: seizing a lawyer’s files. It is a huge thing. It may in fact be justified. But a federal law enforcement official isn’t going to “unsee” anything they see even if a member of the “taint team.” Judge Wood knows this and hopefully by the time this appears a special master will be reviewing these files and not the Department of Justice, and reporters and pundits will make a better effort to educate the public about the stakes here. The rule of law means the most even when it is protecting your opponents.


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