Do Prosecutors Hate the Attorney-Client Privilege?

May 7, 2018

danger thin ice

By: Sara Kropf

The search of attorney Michael Cohen’s office by federal agents led to a phalanx of “former federal prosecutors” quoted by the media.

That’s not surprising. To be fair, I know a lot of great former federal prosecutors who provide informative quotes to reporters and likely share a lot of substantive information off the record that helps the media.

But what two former prosecutors recently said about the attorney-client privilege was disturbing because they show incredible disdain for it.

Liam Brennan, who used to be a federal prosecutor, wrote an op-ed in The Washington Post saying that the attorney-client privilege allows wealthy defendants “a free pass to engage in corrupt conduct.”

What, what? He couldn’t possibly have said that.

Oh, but he did:

Although the attorney-client privilege is an important element of the legal system, in criminal investigations it’s also one that disproportionately benefits those who can afford to keep attorneys around all the time. Not only is the attorney-client privilege alive, it is often weaponized by wealthy bad actors, giving them a free pass to engage in corrupt conduct. They’re effectively able to use their communications with their legal representatives to cloak their activities and buffer them against future legal inspection.

I appreciate Mr. Brennan’s throwaway line that the privilege is “an important element of the legal system.” C’mon, it’s a lot more than that. It’s a critical part of our legal system. It allows people to talk freely to their lawyers and get legal advice that helps them avoid breaking the law.

To say that wealthy individuals “weaponize” the privilege to help them break the law is a view that only a prosecutor could possibly have. No one who works with real clients on a day-to-day basis would ever say that the privilege is a “free pass” to violate the law.

The protection of privileged communications encourages people (and companies) to seek advice about their legal issues. It encourages them to ask their lawyers whether their conduct is legal or not and how to make sure they are following often complex legal and regulatory schemes. Without the privilege, they wouldn’t even ask and just keep on doing what they are doing.

Mr. Brennan doesn’t just say that wealthy clients misuse the privilege. Nope, he doubles down. It’s not just the fault of these wealthy bad actors who assert the privilege, it’s also the judges’ fault for making it too easy for defendants to do so:

While it is, legally speaking, the privilege-holder’s burden to prove that the protection exits, in practice, the judiciary often presumes that communications are privileged and obligates prosecutors to prove otherwise. This presumption of privilege can give cover to criminal actors. Well-heeled criminals often include attorneys in their illicit communications to shield their activity from discovery.

I am always impressed by how carefully judges approach any party’s effort to obtain privileged documents—in a civil case or a criminal case. Mr. Brennan’s view ignores that reality, and it also ignores the law, a curious position for someone complaining about others’ proclivity to do that.

Yes, the law makes it fairly easy to establish that an attorney-client relationship exists. You need only show that the client sought the legal advice of the attorney. That proof is easily obtained through an affidavit by either the attorney or the client, or a redacted engagement letter.

The second step—establishing that the communication at issue was for the purpose of obtaining legal advice –is a bit more complicated but usually not that difficult. It can get muddled when the lawyer provides advice on business matters as well as legal ones, but as a general rule, most clients communicate with their lawyers to get legal advice.

(The Michael Cohen-Donald Trump relationship is so far afield from most attorney-client relationships that it’s not an accurate example to make Mr. Brennan’s point. For example, I’ve never paid hush money to a paramour for a client.)

Mr. Brennan says there’s a “presumption” of privilege. There’s not. I’d challenge Mr. Brennan to point to some case where a judge said that there is a legal presumption that a privilege exists.

He mostly seems miffed by how hard it is for the government to pierce the privilege. Once the party asserting the privilege has established that the communication is privileged, then it is up to the government to show that one of the exceptions—like the crime-fraud exception—exists. That is a tough burden.

It’s a tough burden for a reason. The courts have correctly concluded the attorney-client privilege serves an important function, so discarding it should not come easily.

Mr. Brennan isn’t alone in his prosecutorial disdain for the privilege. Consider Joy White Vance, the former United States Attorney for the Northern District of Alabama from 2009 to 2017. That means she was in charge of the prosecutors in that office for eight years.

Here’s her quote about the attorney-client privilege in relation to the search of Michael Cohen’s office. Look at what she says about what people should do:

I’ve seen criminal defendants do this before. When they speak about topics where other people protest their innocence, these folks have an assumption of guilt. A normal person would say, “You can go ahead and search my lawyer’s office, and I’ll give you access to everything” because they know they didn’t do anything wrong.


To be fair, this is a confusing quote. Is she saying that “normal people” would be ok with a raid of their lawyer’s office?

If it is, then I have a few issues with that view:

First, “normal people” should not waive the attorney client privilege at the first sign of a government investigation.

In fact, that’s the exact opposite of what someone should do. When you are under investigation, you need the advice of your lawyer more than ever. And that advice should be protected more than ever.

Second, it’s disturbing that this view is coming from someone who led a prosecutor’s office. Imagine how she – and her office – viewed people who asserted the privilege to stop the government from learning about their conversations with their lawyers. As more likely to be guilty? It’s a stunning bias against people who assert their rights.

Here’s the thing: everyone should assert the attorney-client privilege if you can. It’s not illegal. It’s not wrong. It’s not evidence of guilt.

Ms. Vance’s quote perpetuates the insidious perspective that people who assert the privilege (or take the Fifth) are guilty. That is a view born of either (1) being a prosecutor and spending your days trying to convict people rather than representing them, or (2) never having been under investigation yourself.

Rest assured that no court will allow a prosecutor to use as evidence at trial the fact that you asserted the privilege.

I do want to be clear that I don’t think most prosecutors think like Mr. Brennan and Ms. Vance. I’ve been across the table from many of them, and they don’t ask my clients to waive the privilege or consider it a sign of guilt if they don’t. None has suggested to a judge that asserting the privilege is someone indicative of wrongful conduct.

I hope that Ms. Vance’s quote was somehow taken out of context. For Mr. Brennan, that clearly isn’t the case. He should rethink his disdain for the privilege. I’m just glad he’s no longer a prosecutor, because I intend to keep telling my clients to assert the privilege every time they can.

Published by Kropf Moseley

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