Unless you’ve been living under a rock, and perhaps even if you have, you have likely heard about the search warrant executed by the U.S. Department of Justice upon Michael Cohen, President Trump’s attorney. It may seem odd that law enforcement officials would seek records from an attorney because communications between a lawyer and a client are shielded by the attorney-client privilege. Such privilege operates as near-absolute protection against disclosure by an attorney of a client’s confidences and communications.
 
However, there is an important exception to the attorney-client privilege which may have substantial ramifications for President Trump. Communications between a lawyer and a client lose their privilege if they are used to perpetrate a crime or fraud. The “crime-fraud” exception applies when an attorney’s advice is used to commit or further the crime. One cannot shield themselves from prosecution solely by involving an attorney. As the Supreme Court wrote in Clark v. United States, 289 U.S. 1 (1933), “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”
 
When law enforcement officials seize documents that may be subject to the attorney-client privilege, they establish a special isolated group of attorneys to review the privileged documents. This group will review the documents to determine first if they are privileged. Only communications with an attorney exchanged for the purpose of providing legal advice receive the shield of attorney-client privilege. Second, the special team will determine if the documents are subject to the crime-fraud exception. Only those documents that are subject to the exception will be reviewed by the ultimate prosecution team.
 
It has not yet been revealed what precisely the Government took from Mr. Cohen’s office and why they took it. It may be that they are investigating Mr. Cohen himself for crimes. However, it is clear that due to the crime-fraud exception, President Trump cannot count on his communications with Mr. Cohen being shielded from view forever and always. We will continue to monitor the situation and explain the various legal precepts here on this blog.

Read more from Gallet Dreyer & Berkey’s White Collar Criminal Defense blog or contact an attorney in our White Collar Crime practice.