I have good news!
I find that highly unlikely.
I have a new legal question for you!
Once again, my low expectations are rewarded.
Stop being grumpy. This is important. It's about Donald Trump and Donald Trump, Jr. and Congress and the attorney-client privilege and lawyers and stuff.
Ugggghhhh.
So yesterday, Donald Trump Jr. was being questioned by the House Intelligence Committee and refused to answer questions about a conversation he had with Donald Trump Sr. about meeting with Russians in Trump Tower in June 2016. He did the attorney thingy.
Did he.
You know what I mean. He said that he wouldn't answer because of attorney-client privilege, because there was a lawyer present during the conversation.
Sort of. That's the way some sources describe it. Other sources say Jr. invoked the privilege when asked about a phone call between him and his father with lawyers for both on the line.
So . . . was he right?
It depends.
I knew you'd say that. What is the attorney-client privilege, anyway?
Fine.
The attorney-client privilege is a rule that lets attorneys and their clients refuse to disclose confidential communications about legal advice. So if you hire a lawyer and tell that lawyer in private about something you did so that the lawyer can give you legal advice, neither you nor the lawyer can be forced to answer questions about what was said in that conversation. Generally the person invoking the privilege has the burden of showing that it should apply.
So was the conversation by Trump Jr. and Trump Sr. privileged, because there was a lawyer in the room, or their lawyers were on the call?
No, not necessarily. Just having a lawyer in the room, or on a call, doesn't make a communication privileged. The communication is only privileged if it's for the purpose of obtaining legal advice — if it's communicating things to the lawyer so the lawyer can give legal advice, or it's the lawyer communicating that legal advice. For instance, having a company's general counsel in the room or on the phone during a meeting about business issues doesn't make the meeting privileged, unless the purpose was to get the general counsel's advice.
You see this issue come up all the time in the modern era with email. Just cc'ing your attorney on an email to a non-attorney does not make the email privileged. The email's only privileged if it's to get legal advice — to tell the lawyer something they need to know to give advice, for instance.
So if Sr. and Jr. were just talking, and weren't conveying information for the purpose of getting legal advice from the lawyers who were on the call or in the room, the conversation would not be privileged. On the other hand, if they were exchanging information so that their respective lawyers could give them legal advice about what the lawyers heard, it could be. Jr. didn't really give enough information to judge.
But wait a minute. I thought a communication had to be confidential to be privileged. Doesn't that mean it just has to be one client and his or her lawyers, and nobody else in the room?
Yes, with an if, or no, with a but.
Yes, in general, the communication has to be confidential to be privileged. That means you have to intend that it be confidential and in fact keep it confidential. The presence of other people outside the attorney-client relationship prevents the privilege from attaching. That's the core of the rule. That's why people with entourages make very difficult clients.
But there are exceptions. Translators don't destroy the privilege — they are there to empower the communication. Nor do other people who are there for the purposes of facilitating the communication. So if Don Jr. generally communicates in clicks and grunts and only Don Sr. can coax him into complete sentences, Don Sr.'s presence to help Don Jr. communicate with his lawyer doesn't destroy the privilege. After that it gets cloudy. Having your spouse in the room may or may not destroy the privilege depending on the nature of the advice and the jurisdiction. Same with other family members — some courts find that the communication was still privileged because the family member agreed to keep the communication confidential and was there to facilitate the communication, some don't. It's a risk to have other people in the room, and many attorneys — like me — will send even a client's spouse out of the room during key parts of a conference.
The same thing goes with lawyers. If someone else's lawyer is in the room, that normally means that your communication with your lawyer isn't privileged.
But . . . . there's also a thing called the "joint defense privilege" or "common interest privilege."
Wait. Didn't Michael Flynn's lawyers withdraw from one of those just before he entered his guilty plea?
Exactly. They're very common in federal criminal defense practice.
The basic idea is this: when the feds are after you and your pals, you need to figure out what they might be after, and whether you did anything illegal, and what sort of trouble you might all be in. So you want to exchange facts you know, and your lawyers want to exchange legal theories and strategies. But normally if you exchange those with other people or their lawyers you'd be giving up the privilege. So everyone — you, your pals under investigation, and all your lawyers — enter something called a Joint Defense Agreement or Common Interest Agreement or Joint Information Sharing Agreement. You agree that you call have a common interest in defending the government's investigation, that you want to share information to promote that common interest for your mutual benefit, and that everyone agrees to keep strictly confidential what they learn from the other members of the agreement. If anyone decides to talk to the government they have to exit the agreement and still keep what they learned before confidential. The idea is that because of the obligations of the agreement, the information is only being shared with people with a legal obligation to keep it confidential, so the confidentiality of attorney-client communications is not lost.
This idea works in all types of law — criminal cases, civil cases, whatever — when a group of people and their lawyers have a common interest.
So if Donald Trump, Donald Trump Jr., and their lawyers were part of a Joint Defense Agreement, the presence of all of them on the phone doesn't stop the conversation from being privileged. But it also doesn't make the conversation privileged if it wasn't already — if it wasn't for the purpose of getting legal advice.
Does the Joint Defense Agreement have to be in writing?
It's not an absolute necessity — an oral agreement might suffice. Courts have sometimes upheld oral agreements or even found a common interest without an explicit agreement. But that's extraordinarily risky. Given the circumstances I would be absolutely shocked if the Trump lawyers did not have a rigorous Joint Defense Agreement in place.
The same Trump lawyers who said that they wrote a tweet confessing that Trump knew Flynn lied to the FBI?
You're right. I have no idea if the Trumps had a Joint Defense Agreement in place or if they even know what one is.
But competent federal criminal defense attorneys absolutely would.
So what's the bottom line — was Donald Jr. right to invoke the attorney-client privilege or not?
Well, if the purpose of the communication was to get legal advice from the lawyer or lawyers present, and if everyone present was part of a Joint Defense Agreement, then yes. We don't have enough information to tell. My first reaction to the news "they had a talk in a room with a lawyer in it" was that it sounded like nonsense, but the report of a call with lawyers for both of them on the call is significantly more plausible.
But there's a wrinkle.
What's that?
It's clear that you can invoke the attorney-client privilege to refuse to answer questions in court, or in a deposition.
But it's not clear what happens when you invoke the privilege before Congress. Congress is cagey about whether it recognizes the attorney-client privilege as applying to its inquiries. In typical Congressional fashion, it hasn't made a clear rule, but sometimes Congress acts as if it does not recognize the privilege, and sometimes it acts as if it can use some sort of balancing test — the need for the information versus the interests of the witness — to decide if the privilege applies. And it's not clear to what extent courts can review Congress' refusal to recognize the attorney-client privilege. It's kind of a mess.
So Congress could refuse to accept Donald Trump Jr.'s invocation of the privilege?
The resolution of that question is more likely to be political than legal.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/12/07/lawsplainer-donald-trump-jr-and-the-attorney-client-privilege/
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