By Lawrence P. Schaefer |
Michael Cohen’s dramatic disclosure of Fox News commentator Sean Hannity as a “client” sheds some light on when a communication with an attorney can be protected by the attorney-client privilege, and when these communications are sufficient to identify the participant to the conversation as a “client.” This topic is also relevant to employees seeking legal advice, even before the employee has formally signed a written retainer agreement with a lawyer.
Conversations About Potential Representation Are Privileged
The attorneys and legal assistants at Schaefer Halleen receive many calls from individuals in difficult employment situations who are generally seeking to find out if they “have a case” and on what terms the Firm can offer representation. Some of these individuals are formally offered representation, but many are not, usually because the circumstances conveyed don’t allow the Firm to offer contingency representation and an hourly retention isn’t advisable or affordable. We generally refer those individuals to other lawyers who may be of assistance.
These individuals, who we refer to as “potential clients,” often ask whether the information shared with us could become public in some way, or disclosed to their employer. We always assure them that these initial conversations, even if they don’t result in a formal attorney-client relationship, are subject to the attorney-client privilege, and generally cannot be disclosed except with the potential client’s permission. Therefore, when anyone seeking representation contacts the Firm and talks with a Schaefer Halleen attorney, they can be assured that the conversation is fully protected by the attorney-client privilege.
Once the Privilege Is Established, Is the Conversation Forever Protected?
Once the attorney-client relationship is established by even this initial type of inquiry, there are very limited circumstances where the content of the communication can be shared with any third party. Why, then, was Michael Cohen’s office raided, and his files/cell phone/computer accessed, and why was he required to disclose, in court, the identify of all his clients over the past two years (a grand total of three individuals)? That’s because there is a well-recognized exception to the attorney-client privilege, called the “crime/fraud exception.” There can also be circumstances where the attorney isn’t acting as an attorney, i.e. isn’t providing legal advice, and therefore the privilege doesn’t arise. Let me describe each situation.
An Active Criminal or Fraudulent Plan “Trumps” the Privilege (Pardon the Pun)
First, even when there is an understanding that the discussion falls within attorney-client privilege, if the communications are conducted in furtherance of an active crime or fraud, the communications lose their privilege and must be disclosed. Therefore, engaging an attorney in a criminal enterprise, or in furtherance of a fraudulent scheme, won’t be protected by attorney-client privilege. Similarly, in this potential circumstance an attorney may be required by law to divulge the identity of all clients or risk an ethics violation or other form of discipline.
This is in contrast to seeking legal advice about an accusation of having previously committed a crime or previously having engaged in fraud. In that circumstance, communications with counsel will be privileged, notably, when a client hires a civil or criminal defense lawyer. Similarly, seeking advice from a lawyer about a difficult employment situation is also privileged.
An Attorney Acting in a Business Capacity Isn’t Providing Legal Advice
Second, communications with an attorney don’t always involve legal advice. Sometimes, the attorney is simply serving as a participant in a business or enterprise without being consulted about legal issues arising in the business. Instead, the attorney may be a co-investor, may be addressing business strategies or plans, and is not serving as a legal advisor. These circumstances can sometimes be hard to delineate, but when they arise, no privilege attaches to the communication. In other words, simply because you are talking to a lawyer doesn’t mean the conversation is privileged.
Contact Us Today
You can feel free to contact the lawyers at Schaefer Halleen without worrying about whether those communications are privileged. They are. Even if no formal retention occurs, these communications are attorney-client privileged and we can and will advise you about your rights in the workplace. Even if we can’t offer you formal representation, we will direct you to others who may be able to, or to resources which can best address your needs.
For a confidential consultation, contact us today.