So, GQ question: Does lawyer-client privilege protect conversations between people whenever their lawyers are present? Or, does it only protect conversations between a lawyer and his/her client?
Does DJ Trump Jr.'s claim have any merit whatsoever?
As a general matter, ACP will only cover communications between an attorney and his client for the purposes of obtaining legal advice. The mere presence of attorneys in a meeting will not make the meeting privileged nor would it cover communications was lawyers that are not seeking legal advice (for example, for business purposes). This doctrine becomes a particular mess when you deal with in-house counsel who perform both a legal and business role.
Could father and son have had a conversation that included their lawyers that was privileged? Certainly. Was this particular conversation privileged? No idea.
Thanks. Can you explain how a conversation between two non-lawyers can be privileged? I’m not doubting you, I just don’t understand it. I always thought ACP meant that conversations between a lawyer and his/her client would be privileged, but I’ve never seen it in the context of a conversation between two people who aren’t in a lawyer/client relationship.
I haven’t read the linked article, so I’m just answering in the hypothetical. If the two non-lawyers in the example have a common interest with regard to the legal matter and are discussing the lawyers’ legal advice with the lawyers present, I’d probably be unlikely to challenge an assertion of privilege.
As a different example, consider instead a corporate board of (non-lawyer) directors debating how to act upon the company lawyer’s assessment of a legal matter.
I remember when the tobacco companies were still denying the dangers and risks of cigarette smoking. One of their tricks was to invite a lawyer to every meeting in the company, so that they could claim that whatever was discussed was protected by attorney-client privilege. I don’t know how that worked for them but it sounds like what DJT Jr is claiming now.
No time for cites but a critical issue may be who the lawyers we’re representing. A conversation must be confidential to be privileged and for the purpose of receiving legal advice. If the Trump’s were jointly represented by their attorneys and the conversation was so they could receive legal advice, privilege would generally attach. If each party was separately represented, they can’t expect confidentiality from another person’s lawyer - no privilege.
The crime-fraud exception may also be relevant. They can’t merely have the lawyers on the call so the lawyers can participate in a crime or cover-up.
I always thought the privilege was exercised by the attorney, not the client. The idea is that the client can talk to a limited number of people (doctor, clergy, spouse, lawyer) without fear that they may be later compelled to testify against them. If the client doesn’t want to talk about the contents of a conversation, he exercises his 5th Amendment rights, not ACP. Exercising the 5th doesn’t sound so good on TV and is , rightly or wrongly, often associated with guilt. ACP sounds much better. But IANAL so I could have it all wrong.
In my professional capacity, I have often invited our internal counsel to meetings for the purpose of privileging the conversation - we explore the bounds of legality, practice, potential outcomes, options, etc with HR and other groups and ask legal to weigh in if our understanding is accurate. These meetings are usually started with ‘we’ve invited legal to weigh in on the legal matters and as such the conversation is privileged.’
If you’re giving information to the lawyers to obtain a legal opinion, the information is privileged. If you’re having a meeting where lawyers happen to be present, it isn’t. The fact that some privileged communications occur at the meeting does not mean that all communications made at the meeting will be.
The presumption in Trump’s case would be that the conversation was not privileged merely because of the presence of lawyers. Disclosure of information to a third party is an automatic waiver of privilege, unless there is a plausible claim of joint defense.
IANAL but…
The other point - made briefly above - is who is lawyers for whom. IIRC, if you have a meeting with you, your lawyer, and a third party, privilege no longer applies since your lawyer is not the third party’s lawyer, and he (third party) can be compelled to testify about what he heard at the meeting. Similarly, the Lawyer is not the third party’s lawyer, so he has no privilege there and can be forced to testify about what was discussed. And by allowing the third party in, the lawyer’s client has signaled this is not a private conversation with his lawyer.
So the question would be - is Trump Sr’s lawyer also Jr’s and vice versa? (who’s paying whom?) Otherwise, it would seem to me neither has privilege. And I don’t think they can make them all their own lawyers retroactively. If it’s a company lawyer - would presidential or campaign business apply as legally privileged?
In the case of a business meeting, the lawyer is lawyer for the whole company as it relates to company business; so as long as everyone is by some definition a company employee, privilege would apply. If anyone is not an employee, then the situation above seems to apply.
Who is paying who is not necessarily dispositive. Trump is free to pay Don Jr.'s lawyer, so long as the lawyer notifies Don Jr. that daddy is paying his bill.
Regardless of who’s ponying up the cash, there is a lawyer-client privilege for that payment, for a specific client. The parent paying their adult child’s legal bill, for example, does not make that parent part of the privileged conversations.
IIRC the privilege is not retroactive. “Here’s a dollar, now we can say you were my lawyer last week and that conversation then is privileged…” It does not work that way.
You might assume it…if it weren’t for the fact that Trump’s lawyers recently asserted that he was above the law and can’t obstruct justice because he was justice. Can you say with any certainly where they would draw the line?