Search Warrants, Confidentiality, and More
In Donald J. Trump, Goner I promised some “basic facts about attorney-client privilege and attorney confidentiality issues.”* The promise grew out of the extraordinary search warrants directed to premises controlled by Michael Cohen, an attorney who does work for President Donald J. Trump.
Extraordinary search warrants? Yes. Mr. Cohen does have a license to practice law, and the warrants relate broadly to that client of his I mentioned previously.
Judges issue search warrants. Routinely.** Judges reject warrant requests rarely and, only slightly more often, they will modify them. So, the fact that warrants issued does not, alone, make them extraordinary.
So, why extraordinary? Mr. Cohen’s law license, and that client I mentioned.
To obtain a search warrant the applicant must establish to the judge’s satisfaction that: (a) there’s probably cause that someone committed a crime, and (b) material relevant to the crime will likely be found at the location(s) referenced in the warrant. With an attorney’s office, however, the attorney-client privilege adds an extra layer of analysis and effort.
Every state recognizes the attorney-client privilege. Why? To encourage clients to freely share information with their attorneys.
In New York the legislature adopted CVP § 4503. In simple terms, the statute limits the right to use confidential communications between attorneys and their clients. (It also includes additional language about estates and personal representatives, which does not apply here.)
The privilege belongs to the client, who can waive it. Exceptions exist, too. The privilege only applies to the attorney-client relationship. If you have a non-attorney relationship with someone who happens to have a law license—your professor, gardener, or house painter—the privilege does not apply to your communications. Then there’s the crime-fraud exception, which likely applies here. Simply, and in plain English, if you and your attorney get up to your eyeballs in bad stuff, law enforcement gets to see and listen to your communications.***
Information which law enforcement obtains from an attorney’s office implicates the privilege. So, we get extra levels of due process. Warrant requests require a higher level of approval at the federal level. More significantly, attorneys review the seized material to screen out what the attorney-client privilege covers before the prosecutors get what’s left.
Search warrants directed to law offices don’t get requested or issued if law enforcement expects to get material it can’t use, whatever the reason. Obtaining and executing warrants takes time and costs money. No one likes having a bunch of cops showing up and taking stuff, either.
In this case, there’s that client, too. He oversees the Justice Department, sort of. The same department which, through the U.S. Attorney for the Southern District of New York, sought the warrants. (Well, sort of, because the U.S. Attorney recused himself, sending the matter back to Justice in D.C., … and no, I’m not making this stuff up.) The department which doesn’t need a fight with its boss over warrants directed to his attorney’s office, if in the end nothing can be used.
What to make of all of this? Russia remains a mystery, although we seem closer, daily, to some semblance of a provable set of facts. And the fact that the Trump Administration pushes back against clear evidence that Russia interfered with our election brings to the mind the husband, being tried for the murder of the wife whose body is gone, who looks straight ahead when his attorney tells the jury the she might walk through the doors in the back of the courtroom at any moment.
About this other stuff? I cannot imagine the warrants ever getting approved without solid evidence about serious crimes. No, not Stormy Daniels aka Stephanie Clifford. Not Karen McDougal. Campaign finance laws? Sure, but there’s got to be more. Deputy Attorney General Rod Rosenstein signed off on the warrants, he knows he must deliver, and campaign finance law violations just don’t sell. But, as that client says often: We’ll see! Stay tuned.
*No room for talk about client confidences, except to note that client confidentiality and the attorney-client privilege resemble first cousins: related, but decidedly different. For more, read Professional Responsibility; Confidentiality.
**The hot topic these days in the world of search warrants involves cell phones. Yes, absent exigent circumstances, to seize and search a phone authorities must have a warrant, per a 9-0 decision in Riley v. California, No. 13-132. Awaiting a decision: Carpenter v. U.S., No. 16-402, which addresses a warrantless seizure of cellphone records which identify the location of the phone from time to time.
***Apparently, Mr. Cohen records conversations. If he was in Arizona, taping intra-state conversations, he’d be acting lawfully. Ethically? Not here. Why not? Read Ethics Opinion 95-03 for the answer.