Quote:
Originally Posted by Rococo
The attorney would not be breaking the law. But if the information did not fall under the crime-fraud exception, the attorney would be violating his or her ethical obligations, and would be subject to disciplinary action, including disbarment, I suppose, if the conduct were egregious enough. If the information did not fall under the crime fraud exception, I highly doubt that it would be admissible. Lawyers can’t waive the AC privilege. Only the client can do that.
In a criminal context:
(This isn't a researched opinion or anything so I could be any magnitude of wrong... but this is would be my pre-research analysis I'd use to direct my more detailed research. I've done any number of criminal appeals but have never come across this issue)
The statement by the attorney isn't admissible. However, the state of the law suggests that the state could use that statement to find other evidence to build a case because the fruit of the poisonous tree doctrine wouldn't apply because it isn't a case of government misconduct.
Unlike say, if the statement was tortured out of a defendant. Any evidence the state found as a result of that statement would also be inadmissible.
More interesting is if the government induces an attorney to violate the privilege. That would be illegal, and I'd assume the client would have standing to challenge this as if it were state misconduct rather than just the lawyer violating privilege. Where this could get weird is the issue of whether there was inducement:
a) Cohen gets the fear and just starts spewing privileged information even though the feds bent over backwards to avoid obtaining privileged information
vs
b) The feds make it clear without saying it that if Cohen doesn't cough up privileged information he's going to do life in the Colorado supermax rather than eighteen months in tennis prison.
The feds seem to be aiming at (a) and taking extreme measures to avoid privileged information, but down the line some defense attorney is going to allege some version of (b) in a motion to suppress and muddy the factual waters.
Also: If the Feds were to willfully violate the Trump/Cohen privilege, I don't think that can be used by a third party to exclude any evidence against them because they would lack standing. So people other than Trump could be SOL.