CBA Record November 2018

Lawyers are in the news every night. Watch CNN or Fox News and you will either

hear directly from or about the following attorneys: Mueller, McCabe, Manafort,

Cohen, Avenati, Sessions, Giuliani, Dershowitz, or Toobin. Each had, or currently

has, clients who are under investigation or performing some sort of investiga-

tion themselves. Others are just commenting and speculating on whatever so-

called“breaking news”happened that day. But as attorneys, all are subject to the

attorney-client privilege.

P RESIDENT TRUMP ’S OPINION OF THE privilege is well documented onTwitter. Back on April 15, 2018, @realDonaldTrump, blasted: Attorney Client privilege is now a thing of the past. I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned! Twitter, 15 Apr. 2018, 7:56:13 AM, twitter.com/realdon- aldtrump/status/985502053345751040. Interpretation of the Presidential Tweet: “Lawyers are a thing of the past. Our powers and protections are gone, ispo facto, we’re done. Don’t expect protection. The FBI has won. Take our secrets. Attorney-client privilege is dead.” Except…. The President, while technically not right, isn’t exactly wrong. FBI raids on law offices raise legitimate concerns of government intrusion on the attorney-client relationship. By and large: a client can tell their lawyer anything and it’s confidential. That means the communications between lawyer and client are generally off-limits. However, like most legal rules, there are always exceptions. Why Does the Privilege Exist? The attorney-client privilege exists to foster “full and frank” com- munication between a lawyer and their client. Upjohn Co v. United States, 449 U.S. 383, 389 (1981). However, this communication can only be truly “full and frank” when the client is assured that whatever they divuge to their lawyer will remain confidential. As the Illinois Supreme Court explained, “The privilege embodies the principle that sound legal advice and advocacy are dependent upon such full and frank communication.” People v. Radojcic, 998 N.E.2d 1212 (2013). The attorney-client privilege is one of the oldest recognized privileges in American & English law. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Friends and family shouldn’t reveal a loved one’s secrets, but a lawyer legally cannot do so. Confidentiality establishes the trust

necessary for this unique type of relationship to exist. Without a client’s trust, it is almost impossible to effectively advocate on their behalf. This trust creates the assumption that all Americans rely on: what you tell your lawyer won’t end up in the hands of the government. The violation of this trust is the fear that the president invokes. Whatever the reasons for the aforementioned statements, the sentiment hits a nerve. The FBI raiding a firm’s office will worry any of that firm’s clients. But it is far from a fatal blow to the privilege. The fact is: lawyer/client communications can legally end up in the hands of the government. While this is alarming, the attorney-client privilege is as alive and well as it’s ever been. The key concept is that nothing in the law is absolute. There are always exceptions. The real issue is the scope and breadth of the privilege. To discern this scope, one must employ the classical legal formula: Rule + exception(s), guided by precedent. When Does the Privilege Exist? tions relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the pro- tection be waived. Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill.2d 456, 791 N.E.2d 522, 529, 274 Ill.Dec. 430 (2003). People v. Adam, 51 Ill.2d 46, 48, (1972) (quoting 8 John H. Wigmore, Evidence § 2292, at 554 (McNaughton rev. ed. 1961)). What Does it Cover? A lawyer “shall not reveal” any information “relating to the rep- resentation of a client.” Illinois Rule of Professional Conduct (“IPRC” 1.6). This is the duty of confidentiality. This duty applies to potential, current, and former clients. IPRC 1.6, 1.9, 1.18. Out of the duty of confidentiality, the attorney-client privilege arises. This privilege protects a lawyer against any legal proceedings that might compel the disclosure of confidential client communications.

What Doesn’t It Cover?

Two common situations exist in which the attorney-client

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