Authored by: David Schultz
Abstract:
As former President Donald Trump has learned at least twice so far, seek legal advice to break the law and what you said to your attorney could be used against you in a court of law. In the first instance, Trump’s former attorney, Michael Cohen, was forced to turn over his confidential notes and testify at a grand jury proceeding regarding the former when it came to alleged payoffs to adult film star Stormy Daniels. In the second instance, Trump attorney Evan Corcoran was compelled to testify or give evidence about conversations he had with his client regarding the possession of governmental documents at the Mara Lago resort. In both cases, the testimony may well have been critical to a New York State investigation and indictment for business fraud, and a federal indictment for illegal possession, conspiracy, and obstruction of justice surrounding the possession of government documents. Trump was also indicted in 2023 in Washington, D.C. and Fulton County, Georgia (where, in the case of the latter, several of his former attorneys, including Rudolph Guiliani, John Eastman, and Sydney Powell are also charged). Conversations that he or they thought were protected under attorney-client privilege may become crucial evidence against the former president or his associates.
The tool prosecutors are using to break privilege is known as the crime-fraud exception, it is a large but rarely used and hole in the otherwise rule that attorney-client communications are privileged. But it is only one of several instances where communications between attorneys and their clients, while considered privileged may be less secure than that. In the case of providing legal advice to officers of corporations or to public officials where the corporation or the government is the client, conversations or legal advice may not be protected and anything said may and could be used against these individuals in a court of law.
This Article examines the crime-fraud exception to privilege. It contends that attorneys should have an affirmative ethical obligation to inform their clients of this exception and the legal consequences that flow from it if the individuals they counsel are using their services to commit or plan crimes. In effect, paralleling the famous Miranda warnings, attorneys should, as a matter of ethics, be required to inform their clients of the scope of the attorney-client privilege and of the consequences to clients seeking to use their legal services to presently commit if not plan a crime.
American Journal of Trial Advocacy 