Did The Seizure Of Documents From Michael Cohen’s Office Open Up A Can Of Worms In Attorney-Client Privilege?

The Daily Report put out by Law.com came out with a piece about the story that’s dominated most of the current news cycle; the raid of FBI agents on President Trump’s attorney Michael Cohen and the seizure of several documents. The biggest conundrum about this story is if the laws about attorney-client privilege are still alive today, or if a whole new can of worms have been opened. While many are upset about the way in which this raid was conducted, the question is whether or not the documents that those agents seized actually do fall under the attorney-client privilege statutes.

As Law.com author John Gross clarifies in the article, attorney-client privilege has to follow certain characteristics. It basically falls that direct communication between an attorney and client is confidential, but the subject of that communication or even an item unrelated that’s attached to that communication is not privileged. Also, the content of the attorney-client communication must be specifically legal advice or be related to it. Another point Gross makes is that it can only be directly between the attorney and client themselves, and if any other third parties are involved, or the communication is being conducted through another medium such as a public work server, it could lose privileged status. The privilege is also waived if it violates the “crime-fraud exception” clause.

It’s unclear whether or not the documents that were taken consisted of any direct legal advice between Trump and Cohen. But it seems what the agents were after were documents related to the hush money Cohen paid to actress Stormy Daniels, and while there are still questions whether or not the president knew this was going on, it’s likely any documents relating to those payments had direct communications with Trump and Cohen. But did any payments made by Cohen violate campaign finance and therefore the “crime-fraud exception” clause? That still remains a mystery, but there still are tremendous legal practice ramifications waiting to be sorted out when this mess is through.