“If the president does it, it’s not illegal.”
_Ricahrd M. Nixon, ***ex-***president.
I’m hoping to keep this in GQ territory, please.
So far, it sounds like the answer is, maybe, but more likely not and it’s up to Jr. to defend his claim. Am I reading that right?
I apologize.
Yep-pretty much correct there.
Not necessarily. There can be common-interest privilege, where two different clients want to work together in a defence and want to have advice from their lawyers. Privilege is designed to help the client get good legal advice, so in that case common interest privilege supplements solicitor-client privilege.
May be different in the States, but that’s not the case in Canada. The privilege is the client’s privilege and is broader than self-incrimination (equivalent to Fifth amendment). The client, even under oath, can refuse to testify as to the legal advice received.
After all, solicitor-client privilege isn’t restricted to criminal matters. A party may have spoken to a lawyer about purely civil matters where there is absolutely no issue of criminal misconduct: family law, wills and estates, interpretation of a contract, property law issues. The client is entitled to keep private whatever advice the lawyer gave on that issue. The lawyer is required to follow the client’s directions and cannot disclose a privileged communication: not because it’s the lawyer’s privilege, but becuse it’s the client’s privilege and the lawyer cannot do anything to prejudice the client’s right to keep it private (absent some very rare exceptions, where the lawyer may be able to disclose something covered by solicitor-client privilege).
But here we are talking about the person (trump Jr) talking about the conversation - not the attorney’s being questioned as to Trump Jr. statements.
Isn’t ACP about what the Attorney can testify to?
No. The privilege protects the client from being forced to testify about what he said to his lawyer as well as protects the lawyer from having to testify about what the client told him.
If Jr and Sr were prospective co-defendants or simply shared a common interest in the legal matter at issue, then privilege attaches.
If the conversation were about Jr’s legal exposure and Sr was involved solely because he’s paying the lawyers, that would breach the privilege.
Usually lawyers with separate defendants who plan a common strategy would execute a memorandum of understanding as to their prospective information-sharing in advance of any conversations, and that memo would protect against inadvertent waiver.
A written memo is not a strict legal requirement, however; presumably Lawyer A and Lawyer B could solemnly shake hands in agreement in lieu of writing it down.
Thanks for that explanation.
But could you please explain one additional case?
If Jr and Sr were prospective co-defendants or simply shared a common interest in the legal matter at issue, then could Jr or Sr be forced to testify about what the other said during the meeting?
Could either voluntarily testify about what the other said during the meeting?
Would there be anything barring either of them from disclosing what he himself said?
And to follow up (cross-exam…)
If they have a common-interest privilege, then who is entitled to breach it? Either client, or must both clients agree to waive? Seems to me it would be difficult to stop one person from talking, and I assume there are no legal repercussions?
What if A says to B and both their lawyers, “Yes, I was the one who did it in the kitchen with the lead pipe.” Can B’s testimony against A be entered in court, or does common-interest privilege apply to prevent that being admitted?
(If only one can decide on their own to reveal all details said by all 4 in the meetings, then there is a real risk in baring your soul to a co-defendant who may turn on you…)
What if instead of because he was paying, Dad sits in on the conversation at Son’s request because Son respects his father’s opinion and wants him to listen to the attorney and offer his advice as well during the conversation?
I’ve heard some people say that breaks the privilege and others say that Dad’s participation is akin to work product.
I’m more and more convinced that this could go either way, but it’s up to Jr to justify invoking that privilege, and congress shouldn’t just sit back and allow him to invoke it. However, aren’t you a lawyer? I know Bricker is, but I thought you were, too. Maybe you and Bricker have different specialties.
Solicitor-client privilege is well defined. Common interest privilege is much less so.
Personally, when I want to rely on common interest privilege, it is only for communications between me and another lawyer, without clients in the room, precisely because having the clients present raises all the complications identified in this thread. Keeping it lawyer-to-lawyer reduces those complications, especially since lawyers are bound by professional standards to respect privileges in a way that clients are not.
It should be pointed out that firms, chambers and Company Legal Dept have further and more restrictive rules which go beyond simple privilege and violating those can be professional misconduct as well, even if they are not privileged. The confidentiality requirements for lawyers go further than mere privilege. Privilege makes sure that a lawyer can not be compelled to reveal information in Court or to the authorities. Confidentiality goes much further.
For instance rules at my last place of employment forbade the sharing of any information pertaining to case, even if it was already public record. Even if it were pleadings filed in Court under my signature, I could not discuss or share, I was supposed to refer to our PR people if it was a journalist or simply ignore if it was another party.
Information received from an outside or opposing party might be privileged as well. For instance, in many countries jurisdictions, you have whats known as “without prejudice offers”, basically if a party offers to settle a matter “without prejudice” it means that said offer cannot be revealed in Court.
I’d like to third the Popehat article on the the issue. He gives a pretty clear explanation of the privilege.
Attorney client privilege can be pretty vague. A common interest privilege would two defendants having a legal strategy meeting with clients. I think that attorney to attorney is cleaner since it is covered by the work product doctrine, but that only applies in litigation and anticipation of litigation.
In this case, they might argue that because these conversations had to do with the campaign and whether these actions were legal or not, the fact that both of them were on the call with the attorneys wouldn’t necessarily waive attorney-client in my opinion.
Back in 2003, there was a case involving Martha Stewart and this same issue. The court held there that Martha Stewart sharing an email with her daughter violated attorney client privilege, but it did not break the work product protection. Cite.
If the rationale is genuine, it seems to me an argument can be made for work product, which covers consultants or experts engaged to assist in trial prep. It’s not too far a reach to suggest that “respects his father’s opinion” arises from factors that would qualify Sr as an expert on some of the political issues (if not the legal ones).
But I think it’s a fact-dependent inquiry.
If they are prospective or actual co-defendants, then A’s admission is inadmissible against A in a trial of A or a joint trial of A and B.
A can waive the privilege as to admission against him.
More generally, A’s admission against himself can’t be used against B, regardless of the setting. If A and B are arrested and interrogated separately, and A says, “Yeah, I kilt the bassard, me and B done beat him to death,” then A’s admission can be used against him but not against B. Of course in that circumstance A could choose to repeat his claim at trial, and then it would be admissible against B. But the cops couldn’t testify at B’s trial that A’s confession implicated B.
Interestingly, one case from the 1960s that helped establish that rule was presided over by Joesph Wapner, who went on to be famous as the first judge of TV’s “The People’s Court.”