I'm pasting from CA practice guide to prebut what you'll on Fox, etc. This is under CA law, but it's generally consistent nationally. Part of the issue is whether Cohen was Trump's actual personal lawyer or was being paid by the campaign, govt., or even Trump's company. In any event, facts related to his own contacts with Russians, whether or not at the behest of Trump, would not be privileged.
a. [7:179] “Client”: The privilege applies only to communications by a person who consults a lawyer in the latter's professional capacity, including both persons who are presently clients and those seeking to become clients of the lawyer. [See Ev.C. § 951]
(2) [7:180.1] Entity clients: Corporations, limited liability companies, associations and other groups and entities who retain the services of an attorney are “clients” protected by the privilege. [Ev.C. §§ 175, 951; D.I. Chadbourne, Inc. v. Sup.Ct. (Smith) (1964) 60 C2d 723, 736, 36 CR 468, 477 (corporation); Benge v. Sup.Ct. (Mac Machines) (1982) 131 CA3d 336, 345, 182 CR 275, 280 (labor union); Roberts v. City of Palmdale (1993) 5 C4th 363, 370-371, 20 CR2d 330, 333 (public entity); State Comp. Ins. Fund v. Sup.Ct. (People) (2001) 91 CA4th 1080, 1087, 111 CR2d 284, 288 (insurer)]
(a) [7:180.2] Communications between corporation's employees and attorney: A corporation (or other entity), of course, cannot communicate as such with its lawyer; rather, attorney-client communications necessarily must be through individuals acting for the entity. Those communications often emanate from corporate directors or officers. But in many cases, attorney communications with the entity's other employees will likewise be protected by the attorney-client privilege:
Generally, communications between a corporation's employees and its attorney(s) are privileged to the extent the communications are within the scope of the employee's responsibility or the employee is a coparty with the corporation. [D.I. Chadbourne, Inc. v. Sup.Ct. (Smith), supra, 60 C2d at 736-738, 36 CR at 477-478; Triple A Machine Shop, Inc. v. State of Calif. (1989) 213 CA3d 131, 141-142, 261 CR 493, 499-500]
1) [7:180.3] Comment: This point is crucial in dealing with attorney-client privilege issues in the corporate or entity context. If the employee who made or received the attorney communication is outside the scope of the “client” umbrella, confidentiality of the communication will be deemed waived on the theory it was disclosed to an “unnecessary” third person (¶7:192 ff.). [D.I. Chadbourne, Inc. v. Sup.Ct. (Smith), supra, 60 C2d at 735, 36 CR at 476]
1) [7:180.7] Limitation—government attorney testimony before federal grand jury: In federal grand jury investigations into criminal violations of federal law, communications between government officials and the government entity's attorneys are not always privileged:
The primary duty of government-employed attorneys is to the government entity and its constituents; they have no duty to defend officials against criminal charges or protect wrongdoers from public exposure. Here, the cases examine the particular offices involved, whether the government entity is state or federal, and the nature of the information sought. [See Ross v. City of Memphis (6th Cir. 2005) 423 F3d 596, 602-603 (collecting cases); In re Lindsey (DC Cir. 1998) 158 F3d 1263, 1272-1273—White House Counsel employed by federal government may not invoke attorney-client privilege in grand jury proceeding investigating President's potential violations of federal law; compare In re Grand Jury Investigation (2nd Cir. 2005) 399 F3d 527, 532-535—former chief legal counsel to Office of Governor of Connecticut could invoke attorney-client privilege to prevent disclosure of confidential communications between Governor and counsel to grand jury investigating Governor's possible violation of federal laws (relying in part on Conn. law); see also Fed.R.Ev. 501 (discussed at ¶7:270.2); and Rest.3d Law Governing Lawyers § 74, Comment (b)]
a) [7:180.8] Compare—consultations with private counsel: Confidential communications between government officials and their personal, private lawyers are protected to the same extent as any other attorney-client communications. [See In re Lindsey, supra, 158 F3d at 1276, 127]
...
(7) [7:210] Information not protected by attorney-client privilege: Because the privilege (Ev.C. § 954) extends only to “confidential communications” between attorney and client, the following generally are not privileged:
(a) [7:211] Foundational facts: Foundational facts upon which the attorney-client privilege depends—i.e., the existence of an attorney-client relationship, or the fact the communications were made in the course of that relationship—are ordinarily not regarded as “confidential” communications and, hence, not privileged. [Triple A Mach. Shop v. State of Calif. (1989) 213 CA3d 131, 143, 261 CR 493, 500; Coy v. Sup.Ct. (Wolcher) (1962) 58 C2d 210, 219-220, 23 CR 393, 397-398]
(b) [7:211.1] Facts underlying privileged communications: The attorney-client privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicate with an attorney. [Upjohn Co. v. United States (1981) 449 US 383, 395, 101 S.Ct. 677, 685; Fisher v. United States (1976) 425 US 391, 403-404, 96 S.Ct. 1569, 1577—preexisting nonprivileged documents that could have been obtained by court process from client when they were in client's possession may also be obtained from client's attorney by similar process]
(c) [7:212] Client's identity: Generally, the client's name is not considered a confidential communication: “It is well established that the attorney-client privilege, designed to protect communications between them, does not ordinarily protect the client's identity.” [People v. Chapman (1984) 36 C3d 98, 110, 201 CR 628, 635 (disapproved on other grounds in People v. Palmer (2001) 24 C4th 856, 861-862, 103 CR2d 13, 16); Hooser v. Sup.Ct. (Ray) (2000) 84 CA4th 997, 1005, 101 CR2d 341, 347]
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a) [7:213.1] Compare—right of privacy protection: Even where the attorney-client privilege does not apply, the client's constitutional right of privacy may shield the client's identity from discovery. [Hooser v. Sup.Ct. (Ray) (2000) 84 CA4th 997, 1005-1006, 101 CR2d 341, 347-348; Tien v. Sup.Ct. (Tenet Healthcare Corp.) (2006) 139 CA4th 528, 539-541, 43 CR3d 121, 128-130—defendant employer's discovery request to obtain identity of potential class members who contacted plaintiff's counsel in putative class action against employer denied as violating potential class members' privacy rights; but see Willis v. Sup.Ct. (Willis) (1980) 112 CA3d 277, 298, 169 CR 301, 313—defendant's need for information for litigation purposes outweighed client's privacy rights re identification information]
[7:221] Comment: Although the Blackman court declined to adopt the position that 26 USC § 6050I “trumps” the attorney-client privilege, other courts have so held. [See United States v. Goldberger & Dubin, P.C. (2nd Cir. 1991) 935 F2d 501, 505—privilege must yield where it “collides head on with a federal statute that implicitly precludes its application”]
c) [7:222] IRS may utilize “John Doe” summons: Where the taxpayer's identity is unknown, the IRS may subpoena relevant information from third party recordkeepers (e.g., attorneys) by a “John Doe” summons, issued with court approval. [26 USC § 7609]
(d) [7:224] Time, date, place of communication: Independent facts related to a communication—such as that a communication took place and the time, date and participants—are normally not privileged. [Coy v. Sup.Ct. (Wolcher) (1962) 58 C2d 210, 219-220, 23 CR 393, 397-398]
1) [7:225] Comment: Conceivably there could be a case where disclosing independent facts regarding a communication would reveal confidential information, as where disclosing the date would show the client received legal advice before committing a culpable act.
(e) Tax returns
1) [7:226] No attorney-client privilege: Where attorneys are involved in the preparation of tax returns, the tax returns and related preparation information generally are not subject to the attorney-client privilege. Reason: Because there is no accountant's or tax preparer's privilege, hiring a lawyer to do work an accountant or tax preparer normally would do should not entitle a taxpayer to greater protection than a taxpayer who does not use a lawyer. [United States v. Frederick (7th Cir. 1999) 182 F3d 496, 500]
2) [7:226a] Fifth Amendment privilege: Courts have also enforced disclosure of client tax documents in the possession of an attorney retained in connection with an IRS investigation over counsel's assertion of the client's Fifth Amendment privilege against self-incrimination. [See Fisher v. United States (1976) 425 US 391, 396-398, 96 S.Ct. 1569, 1573-1575; United States v. Sideman & Bancroft, LLP (9th Cir. 2013) 704 F3d 1197, 1201-1205—Fifth Amendment claim foreclosed by “foregone conclusion exception” to privilege (i.e., producing documents government already knows exist not a “testimonial” act)]
Last edited by simplicitus; 05-30-2017 at 07:27 PM.
