What stops lawyers from abusing lawyer-client privilege to aid and abet wrongdoing?

On twitter Bruce Bartlett, architect of the Kemp-Roth tax cuts under Reagan asks, “What is there to stop some lowlife with a law degree from being nothing more than a fixer who just uses lawyer-client privilege to aid and abet wrongdoing?”

IANAL, but it’s my understanding that:

  1. Lawyer-client privilege protects discussion of past acts of criminality, but can be pierced when future criminal acts are under discussion. Cite, sort of.

  2. Lawyer-client privilege protects crimes of clients, not crimes of the lawyer.

I trust there is a more detailed discussion somewhere. A lawyer would be better at sorting through internet citations than myself.
Wikipedia, FWIW: https://en.wikipedia.org/wiki/Attorney–client_privilege

Recent GQ thread on Michael Cohen: https://boards.straightdope.com/sdmb/showthread.php?t=849247

Short GQ thread: “Lawyer and client are under criminal investigation, lawyer claims “L-C privilege.” For how long?” https://boards.straightdope.com/sdmb/showthread.php?t=804231

Well, obviously for the most part, nothing until the FBI or other serious law enforcement take a close look. Historically, wealthy and powerful people who can afford something like this get away with crime for a long, long time. Sometimes they are never caught at all. If you’re gonna be a crook, do your crime the civilized way and you probably will never be punished…

I mean, you have been reading the news. The Trump organization may or may not have committed thousands of acts of fraudulently reneging on deals with contractors, participating in money laundering, illegal deals with the Russians, use of charities as a tax shelter, tax fraud, and god knows what else. Yet the only reason they are now maybe going to be in trouble is because Trump misused his executive authority to fire the highest police officer in the nation.

Their keenly developed ethical sense and the self-regulation of their peers?

True, it’s the 99% of lawyers that give the other 1% a bad name.

Moderator Note

We’re interested in actual factual information on this subject, not your personal opinions. In addition, professional jabs are not permitted in General Questions, so refrain from the lawyer jokes. No warnings issued, but let’s try to actually answer the question in the OP before opinionating and making jokes.

Colibri
General Questions Moderator

This is however, correct in essence.

Exactly. Same as for accountants and other professionals. There’s always potential for a dishonest person, but the professions are heavily regulated, and sanctions for intentional misconduct can be severe, including jail if a criminal offence is committed.

Think of the REASON behind it. Then most of the rest follows. You want clients to be honest with their lawyers about their legal situation and both fessing up to what you’ve done, legal strategy, and advice are covered. Things like using your lawyer for an alibi, or even having a third party in the room can kill it.

Criminal conspiracies are obviously not.

Privilege is for what the client tells the lawyer to further any legal work, and the lawyer’s responses. So yes, anything where the lawyer is committing a crime - or any evidence that the client conspired with the lawyer - is automatically not covered. Ditto for discussing future crimes. I forget the exact circumstances, but a lawyer cannot knowingly help or ignore(?) discussions of future crimes. Similarly, if a lawyer does something on his own without direction from a client - is he actually doing legal work for a client?

I read about a trend in some businesses to have the company lawyer sit in on assorted business meetings under the theory that therefore anything said at the meeting is covered by privilege. I think someone chimed in with the opinion that if it did not ivolve a legal matter, there was no privilege, any more than lunch gossip is covered.

So I guess the question really is - how does one get caught? Same way any other crime is discovered - some things can’t stay buried forever. Let’s say someone with a legal dispute, hypothetically, gets physically threatened - and they trace the threats back to the lawyer. That lawyer can either go to jail, or roll over on his client for a lesser sentence, or claim his client was not involved in the matter in which case there is no client or privilege. Let’s say, hypothetically, some lawyer arranges for an off-the-books payment that is otherwise illegal, or violates money laundering or other financial regulations - privilege does not protect financial transactions AFAIK, any bank records and accounting data are an open book; except maybe a client paying for legal services. But passing money through a lawyer would probably not be considered privileged, and illegally moving money is automatically grounds for an investigation…

The current case in the news, for example, the FBI took everything. Now it’s up to the lawyer and the prosecutor to argue before a judge what is privileged, because certainly not all is privileged and certainly not all is unprivileged unless the lawyer has been a very very bad boy. One pundit suggested the judge would appoint a separate counsel to look over any disputed items before the prosecutor could look, and determine whether they fall under the category of privileged - that they were discussions about legal issues that a lawyer might have with his client. Complicating matters is that much of the work involved over the decade(s) probably does not fall under the category of “lawyer stuff”. But for example recordings of discussions with the other parties’ clawyers - obviously NOT covered, since the other participants were not his client.

IANAL, this is my uneducated guess…

Same thing that stops a lowlife without a law degree – cops and prosecutors.

The lawyer-client privilege doesn’t aid and abet the wrongdoing. If the lawyer is planning future criminal acts with the client, there’s no legal privilege, there. Of course, the lawyer could lie about whether they were planning a criminal act, but so could the lowlife without a law degree.

The law degree might add one more hoop for the prosecution to jump through, but it’s not a huge barrier. If the prosecutors subpoena e-mails or some other record, the lawyer could claim they’re privileged, but there are ways for the prosecutors to have the e-mails examined and the actually privileged ones kept hidden while the ones that are about planning future criminal acts will get to the prosecutors and be available for evidence.

What you cannot do is go on a fishing expedition. That is possibly the only reasonable objection to Mueller’s raid.

Exactly. When the cops get a warrant, they specify what they are looking for, and that’s what they get - unless they run across other criminal evidence in the process of legitimately executing the warrant. For example, if they show a judge reason to believe certain financial records are related to a crime they are investigating, the can seize all records relevant to that sort of financial transaction.

The problem is that when the warrant is for paper records, recordings, etc - it’s difficult to be sure that any papers and recording media are not relevant, so they get to take it all - unless the owner can show why they should have obviously not been interested in it.

The exception usually applies to something like - if the warrant says “we are looking for a pistol” they can’t take and examine paper records , since it should be obvious the search item - a gun or bullets - is hiding in the file folders. Similarly they can’t look in anything too small for a gun. If the evidence is in plain sight, like lying on a coffee table, and it is obvious just looking at it that it involves a crime, that’s “plain sight” and legitimate to take. And as some commentator said, adding in “and any records of XXXXX” usually means they get to take and examine pretty much any papers they want.

The problem here is - what is privileged and what is not? The police can take it all - and they did, I suppose, to ensure it doesn’t accidentally get filed in a shredder; but they can’t really look at it carefully until the judge decides what is privileged and is not.

What about the “taint team”? It’s not like there’s no protocol for this.

The prosecutor certainly wants a “taint team” (not sure which sense of the word applies here… :slight_smile: ) If the lawyers for the defendant can argue the prosecution violated privilege by examining certain material, then that and any results that material leads to - are automatically excluded as evidence. Too much “tainted” evidence and a mistrial or acquittal could result, so the prosecutors want to be extra careful, especially with someone who could afford lawyers and a long court fight. Christie was a prosecutor (rumor has it he didn’t get a Trump cabinet position because he put away Kushner’s dad) so he knows in detail what he is talking about. But, if the documents or recordings contain evidence that the lawyer participated in the crimes, or that the details are not what falls under private legal communication with a client, then the team can be pass them to the prosecutors.

There’s one twist. There are a lot of lawyers that don’t practice law. Instead they are businessmen. Same goes to some extent in accounting or medicine, but it’s not as common. The point being that a disbarred lawyer may have less to lose than an accountant or physician who lose their licenses.

Also, it’s hard imagining a physician using doctor-patient confidentiality to cover up criminal planning, although I trust it has happened.

Again, IANAL but I’ll give a shot with google. According to Nolo press, “Communications about past crimes and frauds are almost always privileged, but communications about ongoing or future ones usually aren’t.” That seems foundational.

Lawyers also have mandatory disclosure rules for perjury, crucial evidence, missing persons and threats.

Similarly there is something known as the crime-fraud exception: if you use your attorney’s services to commit a crime, then the attorney can be interviewed about it. Cite.

Brookings notes that a lawyer can’t claim to represent someone with regards to everything, though mafia member John Gotti attempted to block possible wiretaps by saying his lawyer represented him in all matters. This seems to fit the scenario sketched in the OP. The judge said, “Not every communication between an attorney and his client is privileged.”