How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers memorandum. 

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime, or a client "(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) regardless of the client's purpose at the time of consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud."  §  82 Client Crime or Fraud Restatement of the Law Governing Lawyers

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Michael D. Cohen v. United States of America

Case 1:18-mj-03161-KMW Document 1 Filed 04/13/18 Page 5- 6 of 23

The nature of the attorney client privilege

The attorney-client privilege protects from disclosure “confidential communications that pass in the course of professional employment from client to lawyer.” United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). The privilege does not attach to communications between two or more persons that do not enjoy an attorney-client relationship. Id. Additionally, it is settled that even where an attorney-client relationship does exist, disclosure of a privileged communication to a third party waives privilege as to that communication. See Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015) (privilege “is generally waived by voluntary disclosure of the [privileged] communication to another party”); In re Horowitz, 482 F.2d at 81 (“subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed”).

How the special team – the “filter team” will review documents before they are turned over to the prosecutors and FBI “the investigative team”

As an initial matter, the Filter Team will review and release communications to the Investigative Team between Cohen and persons with whom Cohen undisputedly does not have an attorney-client relationship.3 Based on the information presently known to the USAO, the Investigative Team has compiled a list of individuals and entities relevant to the investigation with whom Cohen undisputedly does not have an attorney-client relationship.

(The U[nited] S[taes] A[ttorney’s] O[ffice] –S[outhern] D[istrict of] N[ew] Y[ork] has asked Cohen’s counsel to provide a list of Cohen’s clients and attorneys, but that invitation has thus far been ignored.)

To the extent there are any remaining potentially privileged documents—i.e., any communications between Cohen and clients known or believed to have been represented by Cohen, any communications between Cohen and an identified.  attorney or law firm known or believed to have represented Cohen—the Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception  

To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will

(1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;

(2) bring the document to a court for resolution, including by seeking an ex parte determination if appropriate; or

(3) if the document is of obviously minimal probative value, place the document into the “Privileged” category as a means of efficiently completing the review.