Recently in the news, there have been some issues with Attorney-Client Confidentiality and what the definition of a “client” is. Michael Cohen was President Trump’s attorney and his home office was “raided.” It sounds mildly more dramatic than it was, it was all very anticlimactic when you read the actual events that took place in the “raid.” It is fairly shocking that, on first blush, the sacred protections of attorney-client confidentiality were violated.
Another famous person was wrapped up in the scandal: Fox News personality Sean Hannity. Mr. Cohen listed Mr. Hannity as a client and Mr. Hannity has strongly attempted to refute it. How does a person become a client? When does confidentiality kick in? How strong is confidentiality? I will attempt to use this recent story as a segway to explaining the answers to the above questions.
Basically, anytime a person asks for or receives legal advice from an attorney there is an attorney-client relationship and confidentiality applies. Confidentiality can be breached in two ways: a willing breach by the client and when an attorney is involved in helping a client commit a crime.
Attorney-client confidentiality (also called privilege) does not require money to change hands! It is much more liberal than that. Confidentiality begins whenever a person confides in an attorney or when an attorney gives any legal advice. Let me repeat – NO MONEY NEEDS TO CHANGE HANDS. I put it in all caps because it is the foundational principle of the attorney-client relationship and if you don’t read anything else in this post, you should see that. Money changing hands makes absolutely no difference, though it can be a good indicator that the relationship exists.
For instance, if an attorney is at a dinner party and someone walks up with a drink in his hand and quietly said something like this “hey, I think I have a problem. A week ago I downloaded some porn that might have had an under-age girl in it. She looked young, but I didn’t think she was too young. Later, I found out she was a really well-developed 17-year-old. I had no idea! This morning a guy came into my office who I’ve never seen before. He said that he knew about the video and he wants me to give him money to keep quiet about it.”
That Seems Extreme for The Attorney
In a situation like that, it doesn’t matter if money changes hands. It doesn’t matter whether the guy ends up getting charged by the government. It doesn’t matter if the guy signs a client-agreement. That conversation is confidential. If the attorney doesn’t want the rest of that conversation to be confidential the attorney should interrupt the dinner guest and say something like “look, I’m just a dinner guest like you. I’m off the clock and I’m not taking any new clients right now. Do not tell me anything else. I am not your attorney. This conversation is not confidential.”
What the dinner guest said prior to being interrupted is probably protected, though. If you think about it, that’s sort of an awkward thing for a professional to say to someone, an abrupt rejection, but I’m trying to make the point that unless the attorney puts a stop to that conversation immediately and makes it clear he wants nothing to do with what the person is confiding, the attorney might just be stuck with confidentiality. Even if the dinner guest doesn’t hire the attorney with a retainer agreement, no money changes hands, and the attorney doesn’t give any advice.
Just telling a lawyer stuff in seeking advice is confidential. Even if the attorney doesn’t want to have an attorney-client relationship with the person, everything confided in the attorney until the point the attorney makes that position clear is confidential. It’s good public policy. If society wants to garner a trust relationship between attorneys and clients, it has to make it very easy for people to enter that trust relationship without splitting hairs.
As far as the policy goes, it is the inspiration for the rules surrounding confidentiality. The issues an attorney could face for betraying that public policy and breaching confidentiality range from a public sanction (slap on the wrist with not very much consequence, though very public), large fines, a malpractice lawsuit (severity of the suit depends on how much damage the attorney caused the client), to having his license suspended or revoked (this would be a very extreme case). Remember, without a license to practice law an attorney (especially younger attorneys) may have spent upwards of $250,000 on his/her education and more than a decade of his/her life to just start as a lawyer with no way to pay that debt without the license to practice.
It’s the attorney’s job to keep the secrets, not pass judgment, and to work in his client’s best interests whether the client is likable or not. However, if an attorney makes it very clear s/he is not going to represent you, all bets are off and you better stop talking to that lawyer. There is no confidentiality after a lawyer makes it clear s/he is not representing you.
Types of Communication Protected
Emails? Yes, confidentiality applies to any form of private contact. Emails, phone calls, instant messenger, telegram, carrier pigeon… Confidentiality might not apply if the contact is more public like announcing a legal problem on a public internet forum or talking loudly about a personal legal problem at a dinner party. If the dinner guest in my example had drunkenly announced his problem to the entire table of guests and asked the attorney’s advice rather than quietly pulling the attorney aside, confidentiality probably wouldn’t apply.
Basically, if you treat your legal issues like an embarrassing medical problem, i.e. keeping it only between you, your spouse and your doctor, you should be fine. Remember, live-in girlfriends or boyfriends or roommates DO NOT HAVE ANY SPOUSAL PRIVILEGE. A wife/husband can refuse to answer government questions under oath, but your boyfriend, girlfriend, or buddy can receive his or her own criminal charges for not cooperating with subpoenas to testify.
Aiding A Client In The Commission Of A Crime
If we change the facts of the dinner party above, a little, then we can work through the second way confidentiality can be dissolved. If the dinner guest makes an appointment with the attorney and tells the attorney says something like “look, I’ve come into this amazingly profitable business opportunity involving pornography and actors who are exactly 16 or 17 years old. I need to know how to explain the money I make from this new website. Can you give me advice on how to launder the money?” things then get complicated. In short, however, this is may not be protected communication, but it is absolutely not protected the second the attorney gives advice on how to clean and hide [launder] the money. If you want your communications with your attorney to be ironclad, do not involve him/her in planning or committing a crime.
As a slight caveat, you should know that getting advice from an attorney on how to stay on the right side of the law is always protected. For instance, if we change the facts of the dinner party entirely and the dinner guest whispered to the attorney something like “I am an artist and I’ve been inspired by some of the Rennasaunse art to try painting some tasteful nudes. I don’t see too many Rennasaunse nudes featuring older folks. In fact, a lot of them are supposed to be teenagers. I know that pornography involving teenagers can land me in hot water, but what I’m interested in doing has zero to do with sexuality and everything to do with studying the human form. How can I follow my muse and draw what inspires me without getting in trouble?” that conversation is absolutely protected. It continues to be protected if the lawyer tells the dinner guest to study the human form with models who are over the age of 18.
The lesson we can learn here is that keeping your legal problems between you and your lawyer (and your spouse), and never including your attorney in the commission of a crime will protect that sacred confidentiality.