The Assault on the Attorney-Client Privilege
Viewers of the TV show Breaking Bad will recall a memorable scene in which the shady lawyer, Saul Goodman (of Better Call Saul), tells the show’s meth-dealer characters to “put a dollar in my pocket” as his legal fee, thus ensuring that their conversation remains protected by “attorney-client privilege.”
This unfamiliar phrase is in the news because of a much-publicized 5:30 a.m., April 9 raid by the Federal Bureau of Investigation on the New York office, home and hotel room of President Donald Trump’s personal lawyer, Michael Cohen.
Cohen and Trump’s attorneys argue that items the FBI seized — records enough to fill a small pickup truck — are protected by attorney-client privilege.
Trump denounced the FBI raids, tweeting them to be a “disgrace,” “an attack on America” and a “total witch hunt.” Cohen, who personally paid an adult-film actress $130,000 for her silence about an alleged affair with Trump, is reportedly under criminal investigation for multiple matters.
When only 30% of Americans in a national poll were able to identify the U.S. Constitution as the supreme law of the land, perhaps one shouldn’t expect wide knowledge of an important legal privilege that seeks to curb excessive government power and protect the rights of the accused.
So, what is “attorney-client privilege,” and might you ever need this magical immunity? The answer may be of vital importance when you consult an attorney.
The Supreme Law of the Land
Indeed, the Constitution is still, at least in theory, if not current practice, the supreme law in America.
The Sixth Amendment to the Constitution guarantees “assistance of counsel” for an accused “in all criminal prosecutions.” This constitutional right to a lawyer includes the protection of, yes, attorney-client privilege.
Regardless of ultimate guilt or innocence, to mount a defense against the overwhelming power of government, an accused must be able to consult with a lawyer in confidence.
The attorney-client privilege rule is simple: Lawyers usually cannot reveal communications made to them by an accused client. Courts have long held this to be an essential right; without the ability to speak freely, defendants cannot understand their legal status and options, and attorneys cannot mount the best defense.
A major exception to this rule occurs when a client makes statements to the lawyer about intent to commit a future crime, in which case the attorney may be obligated to inform the police.
The oldest example of evidentiary privilege known to the common law dates to 16th-century England and the reign of Queen Elizabeth I.
Unlike other rules of evidence, the attorney-client privilege hasn’t been defined extensively in law by Congress. U.S. Supreme Court decisions provide strong support for the privilege, upholding its importance and benefits. Federal Rule of Evidence 501 allows the privilege to be interpreted by the courts “in the light of reason and experience.”
History and many court rulings have created a legal limbo, assuring that the privilege has as many interpretations as it has supporters and opponents. That makes it a frequent issue in civil and criminal litigation.
Advocates of Law and Order
The assault on the attorney-client privilege perhaps began with Jeremy Bentham, the 18th-century English utilitarian philosopher, who believed Thomistic theories of natural law and personal rights were nonsense. Best known for his Kafkaesque panopticon prison, Bentham thought the common good should require attorneys to inform on their clients.
Four centuries later, this rule is still under attack by federal and state prosecutors bent on convictions and plea deals, despite another established principle: the presumption of innocence.
The passage of the Patriot Act, for example, within weeks of the terrorist attacks of September 11, 2001, weakened the attorney-client privilege in terrorism cases. Attorneys who aggressively defended their clients have been indicted and convicted for “aiding and abetting terrorism.”
The notoriously failed war on drugs has seen multiple instances of entire law offices seized by the FBI. Similar seizure tactics used by the Internal Revenue Service have been aimed at those accused of “accounting scandals” and alleged “tax evasion.”
We know that police and prosecutors are not always right. They make thousands of mistakes. That’s why an estimated 200,000 innocent Americans are in prisons. DNA evidence has produced a parade of freed innocent-but-convicted “murderers” and “rapists.”
As a conservative, I think it would be sobering for advocates of strict law-and-order to be dragged through the legal system. Invariably, the least sympathetic among us — the accused terrorists, the radical activists and minorities — are the first to lose basic rights.
The Constitution guarantees these precious rights to you and me, and especially to those ignorant of the law — and that means all of us, including the president of the United States.
Yours for liberty,
Bob Bauman, JD
Legal Counsel, Banyan Hill Publishing
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