Given the recent raid on attorney Michael Cohen’s office and home, the issue of attorney-client privilege is very much in the news. The purpose of the privilege is to encourage truthful and frank communications between an attorney and his or her client. Generally, any communications between lawyer and client are privileged and cannot be disclosed to a third party. The privilege applies in divorce actions in New York State.
There are, however, some issues with the privilege. The biggest issue is waiver of the privilege, particularly inadvertent waiver. Frequently when a prospective client appears at a lawyer’s office for an interview, he or she will bring along a parent, friend or other supportive person. Unfortunately, having a third party present during the conversation with the lawyer is a waiver of the privilege. Only the lawyer and client can be in the room. The support person has to remain outside.
Is important to understand that the privilege only covers legal advice. Accordingly, conversations between the attorney and the client regarding other issues are not subject to the privilege and disclosure can be compelled. Another exception to the privilege is the “crime fraud” exception, which does not permit the privilege to perpetrate a crime. This is the exception alleged in the Michael Cohen case.
Is important to preserve the attorney client privilege, right from the initial interview. In that way, the client and lawyer can have informative, truthful discussions without any fear of disclosure.