Is the attorney-client privilege dead? (No, but it may not be as robust as you thought)

What advice from a lawyer is protected by the attorney-client privilege? In the aftermath of the FBI search of the offices of his former personal lawyer Michael Cohen, President Trump tweeted “Attorney-client privilege is dead!” It isn’t dead, but its health may not be as robust as you might think.

Although the recently-disbarred Cohen is scheduled for yet more testimony before Congress, let’s put aside the specifics of his case and examine how much of a discussion with a lawyer can a client expect to be privileged, particularly when the conversation moves into matters not strictly about the law. Determining the exact scope of the privilege in such situations is more complicated than many lawyers and clients may believe.

Let’s start by taking a look at Rule 2.1 of the ABA’s Model Rules of Professional Conduct because it talks about lawyers providing advice in which non-legal considerations are included:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation. (Emphasis added.)

The Commentary elaborates on the rule and adds this admonition:

Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. (Emphasis added.)

This suggests that to provide advice that is not “inadequate,” a lawyer may be obliged to go beyond “technical legal advice.” This tracks with what scholars have concluded. In the leading law review article most pertinent to this issue, Professor L. O. Natt Gantt’s “More Than Lawyers: The Legal and Ethical Implications of Counseling Clients on Nonlegal Considerations,” contends that “despite the innocuous, permissive language in Rule 2.1, attorneys may be required to discuss nonlegal considerations with their clients in certain instances.” (Emphasis added.)

But would such “may-be-required” nonlegal considerations be covered by the attorney-client privilege? Not necessarily.

True, Rule 1.6 (“Confidentiality of Information”) prohibits a lawyer from revealing “information relating to the representation of a client” (absent the application of a few exceptions). However, writing for the ABA’s Center for Professional Responsibility in an article entitled “Confidentiality, Privilege: A Basic Value in Two Different Applications,” Ms. Sue Michmerhuizen makes the important – yet often overlooked – point that the concept of confidentiality and attorney-client privilege “are not synonymous.” Confidentiality is a concern of legal ethics while the attorney-client privilege is an evidentiary matter.

According to Ms. Michmerhuizen, “the attorney-client privilege only protects the essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation.” This contrasts, she says, with the “the ethical duty of client-lawyer confidentiality [which] is quite extensive in terms of what information is protected.” She contends that “if a court determines that particular information is not covered by the attorney-client privilege, it still may be covered by the lawyer’s ethical duty of confidentiality.”

Conceptually, it’s fair to say the attorney-client privilege is necessarily narrow as it is, as one expert reminded me, because it’s meant to be the exception to the general rule that all relevant information is admissible in judicial proceedings. Whether or not clients (and, for that matter, lawyers) really understand that their confidential discussions might be parsed in a hard-to-foresee way and disclosed is, nevertheless, problematic.

Of course, the predicate to the application of any confidentiality or privilege is the existence of a bona fide attorney client relationship. Paul Rosenzweig pointed out last April that not every statement by a client to his or her lawyer is within the scope of the representation. Rosenzweig explains:

“The representation is limited to that matter [for which the attorney was hired] and so is the privilege. Other things I may have told you in passing (for example, about the fight I am having with my wife and how I beat her—this is a hypothetical!) are outside the scope of the representation and are not privileged. The law is clear that as a general matter a person cannot claim to have an attorney for “all matters” that might arise.” 

In addition, the advice cannot come within the ambit of the “crime-fraud” exception to the attorney-client privilege. One authority succinctly describes the crime-fraud exception as applying if:

• the client was in the process of committing or intended to commit a crime or fraudulent act, and
• the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up.

Writing in the ABA’s Litigation News in 2017, Connor Jackson clarified the limits of that exception:

The crime-fraud exception cannot be used to pierce the attorney work-product privilege without the required showing that the work product was actually used in furtherance of the purported crime or fraud. The U.S. Court of Appeals for the Third Circuit clarified that, without more, even compelling evidence of a crime or fraud is insufficient to invoke the exception.

Assuming the existence of a bona fide attorney-client relationship, and further assuming that the discussions do not raise pernicious “crime fraud” issues, does the “essence of communications” that Ms. Michmerhuizen references as protected by the attorney-client privilege fairly include the “other considerations” that the commentary Rule 2.1 indicates may be necessary for adequate legal advice?

Keep in mind that the “other considerations” about which Rule 2.1 speaks are rather broad, and it need only be shown that they “may” be “relevant” to the client’s “situation.” That obviously could cover a lot of ground.

For example, when does an attorney’s advice beyond technical legal guidance become, in essence, a “law-related service” as used in Rule 5.7? These are services – presumably including advice – that “might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.”

As explained in the ABA’s comment on that rule, these law-related service are not always protected. It points out that that misunderstandings can arise:

[The] recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflicting interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case.

The ABA says that the lawyer needs to take “reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply.” Such “reasonable measures” would likely take the form of a disclaimer of some sort.

However, as Gantt discusses in his law review article, “[what] exactly the disclaimer must include is unclear” given that the “broad standard” of Rule 1.6 “would be triggered in many cases, and in virtually every case in which the nonlegal advice was considered a ‘law-related service’ since that term is similarly defined as a service that is ‘related to the provision of legal services.”‘

Gantt goes on to note that lawyers and clients alike would have difficulty parsing legal and non-legal advice. Significantly, he points out that:

“Any real-life application of these disclosure requirements, however, would reveal their impracticability. First, the warnings, inserted in the middle of an attorney-client counseling session, would be stilted and would destroy any natural flow to the consultation. Faced with such lawyer-like disclaimers, clients would be unceremoniously reminded of the formal nature of the attorney-client relationship. They may thus clam up, refraining from discussing important nonlegal considerations that may affect the legal objectives of the representation.'”

Yet at the same time it is nevertheless also true that some advice which is “not narrowly legal in nature” might still be privileged. Gantt cites the Restatement (Third) of the Law Governing Lawyers § 94(3) cmt. h (2000) which says:

Advice concerning nonlegal considerations. As stated in Subsection (3), a lawyer’s advice to a client may properly include the lawyer’s views concerning aspects of a proposed course of conduct that are not narrowly legal in nature. Such advice, when given as part of legal services provided to the client, is within the scope of § 72 for purposes of the attorney-client privilege, and it is within § 59 for purposes of the general duty of confidentiality (see § 60). A lawyer’s advice on significant nonlegal aspects of a matter may be particularly appropriate when the client reasonably appears to be unaware of such considerations or their importance or when it should be apparent that the client expects more than narrow legal counsel. A lawyer is required to provide such assistance when necessary in the exercise of care to the extent stated in § 52. (Emphasis added.)

Similarly, a 2007 New York Law Journal article insists that: “a discussion of moral or ethical considerations (as opposed to strict legal alternatives) remains a privileged communication, as the overarching purpose of such advice is invariably the provision of legal advice.”

Confused? To reiterate, consider the obvious question: In the context of “rendering” otherwise lawful “advice” to a bona fide client as contemplated by Rule 2.1, are references to “not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation” within the attorney-client privilege?

Apparently figuring out the answer is complicated and potentially very expensive. One can only assume such questions were addressed in the Cohen case after the FBI raid. In order to resolve them, the court appointed a retired judge as a special master – at $700 an hour – to sort through millions of Cohen’s records, emails, and more. She eventually found “7,146 are Privileged, 285 are Highly Personal, and 8 are Partially Privileged.” The cost? More than $330,000.00 (half of which was charged to Cohen).

So how is the ordinary lawyer to decide how to advise a client about a conversation which, in order not to be “inadequate,” will get into matters beyond “purely technical legal advice”? Indeed, how is the ordinary client to make an informed decision as to whether or not to engage in a discussion about “other considerations”?

At the moment, the only really safe course of action would be for the lawyer to make an extensive disclaimer and disclosure, and for the client to carefully assess any such disclaimer and disclosure before revealing anything to the lawyer – all of this being notwithstanding the concerns about impact on the attorney-client relationship that Gantt discusses (and with which I agree).

Would that be overkill? In most instances, probably, because cases like that suggested by the Cohen situation are rare. Still, the legal business is much about accounting for worst case scenarios, so it’s hard to say that the disclaimers and explanations are unnecessary these days.

The way ahead?

In my view otherwise lawful “advice” to a bona fide client as contemplated by Rule 2.1 ought to be both confidential and privileged, and I would recommend that the ABA take just that position. Short of that, the ABA should include in the Commentary to Rule 2.1 a robust discussion that could draw much from Ms. Michmerhuizen’s article.

In any event, the legal profession needs to get this sorted out. There’s real reason for concern: last August a poll of likely U.S. voters found that only 29% trust lawyers, and a more recent Gallup poll shows that lawyers trail many other professions in the public’s assessment of their “honesty and ethics”.

Clarifying how secure and comfortable clients can be about their discussions with counsel could be a useful step in restoring confidence in an essential element of America’s legal system. It’s hard to see how that system can work effectively if people don’t – or can’t – trust their lawyer.

Still, as we like to say on Lawfire^®, check the facts, assess the law and the arguments, and decide for yourself!