In a dramatic move, federal agents have raided attorney Michael Cohen’s office, home, and hotel room. This came after the U.S. Attorney’s Office for the Southern District of New York—prompted by a referral from Robert Mueller—issued search warrants.

Cohen’s own lawyer called the action “completely inappropriate,” “unnecessary,” and “wrong.” After all, Cohen is already cooperating with federal investigators and producing documents in response to government demands.

Some of the seized documents will likely include sensitive legal advice Cohen gave to a client or clients. Now that the seizure has occurred, what measures should the court take to rein in the number of parties sifting through the materials?

At the heart of the question is attorney-client privilege.

What Is Attorney-Client Privilege?

The attorney-client privilege protects the client’s expectations of confidentiality when speaking to and receiving advice from a lawyer. It enables clients to make full and honest disclosures to their lawyers, who can, in turn, offer well-informed legal advice and effective representation.

The protection is limited in scope to serve the public interest. It does not stretch to conversations that involve no legal advice. Nor will it shield any interactions between the client and lawyer that further a crime or fraud.

When the Context Involves Politics

The attorney-client privilege is generally strong even in politically charged cases—although, in the face of the Whitewater investigation and subpoenas from the grand jury, President Clinton’s claim of privilege failed.

With private actors, the attorney-client privilege is sacrosanct. When the context involves political actors, we witness debates over it. Why?

Public pressure in favor of transparent government is a key reason. In the face of this pressure, political actors might waive their legal protections.

Keeping Privileged Materials Private

The U.S. Justice Department may form a “filter team”—also known as a “taint team”—to examine Attorney Cohen’s materials. This special group will filter out the privileged pieces. The protected material will not go to the prosecutors.

And yet, because the taint team consists of other federal agents, this solution can be criticized for looking like the fox protecting the chicken coop.

Michael Cohen’s legal team wants to filter the material themselves. This request is a long shot. The government made the unusual move of obtaining a warrant rather than being content to receive get what they sought through Cohen.

Trump also wants the opportunity to review the materials before investigators do.

Another option would shift the task from the Justice Department to an independent third party—a “special master.” A judge could opt for this choice in order to avert any appearance of political bias.

Contact the Marrone Law Firm, LLC Today

As one of the most successful litigation practices in the Philadelphia area, the Marrone Law Firm, LLC provides vigorous, effective representation in matters after consultations with our clients. In this work, the attorney-client privilege is essential, and we zealously guard it.

Contact us for a consultation regarding the facts of your case.

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