How Attorney-Client Privilege Works

Introduction to How Attorney Client Privilege Works
Jodi Arias, seen here testifying in the murder trial of her boyfriend Travis Alexander, later sued her attorney for breach of attorney-client privilege. Youtube screen capture

Mesa, Arizona, June 9, 2008: Travis Alexander had been radio silent for days and his friends were getting worried. When they gathered at his house, his roommate Zack Billings said that he was out of town. But it was those friends Alexander was supposed to be out of town with. So, Billings located a key to Alexander's bedroom and entered. Stepping over puddles of blood, he made his way past the bed and down the hall to the bathroom. On the floor of the shower Billings found Alexander's body [source: McDonell-Parry].

The coroner later determined that Alexander has been shot in the head — a .25 caliber shell casing was found near his body. He'd also been stabbed somewhere between 27 and 29 times and his throat had been cut. A bloody palm print on the wall was found to contain DNA from both Alexander and his sometimes-girlfriend Jodi Arias. On June 15, the police tracked down Arias in California and extradited her to Arizona for prosecution [source: McDonell-Parry].

The story was a media sensation and Arias was cast as a cold-blooded killer who committed pre-meditated murder. Arias didn't help her case by giving three different accounts of what had happened, and going into explicit detail about the couple's sex life.

In the end, she testified that she was the victim of domestic abuse and that she killed Alexander in self-defense. The jury disagreed and found her guilty of first-degree premeditated murder. She was sentenced to life without parole [source: McDonell-Parry].

But the story didn't end there, because in October 2017, one of Arias' defense lawyers, a man named L. Kirk Nurmi, published a tell-all book about the trial. In the book he disclosed client confidences about Arias and her case, including information that was excluded from her trial, plus his personal views on her guilt. Arias responded by suing Nurmi for violating attorney-client privilege, alleging that her attorney had exploited her story for his own personal gain and revealing in his book a strange hatred for his client and an even more peculiar obsession with the sexual elements of the case [source: Frankel].

In this article, we'll explore the evolution of attorney-client privilege, when and how it's applied in the legal system, and what the future holds for this most basic of legal standards.

Annals of the Privilege

Annals of the Privilege
Attorney-client privilege, while well-established by 1743, was not yet well-defined until Annesley v. Anglesea. The case ultimately decided who inherited the Annesley estate, now the Kingston-Lacy house, seen here. CC BY-SA 3.0

The legal systems of the U.S. and Canada are roughly rooted in English law and it's after the reign of Queen Elizabeth I that a few incomplete references to attorney-client privilege first show up in the historical record around the 1650s. But the English didn't really get around to battening down the hatches on their jurisprudence until the 1700s. In the period the mid-1600s to around 1743, there are just 14 reported decisions on attorney-client privilege [source: Hazard].

In 1743, the case of Annesley v. Anglesea became a pivotal trial in the history of attorney-client privilege. The story was straight out of Dickens, replete with a scheming uncle and a disinherited nephew. When Arthur, Baron of Altham died, his brother, Richard, Earl of Anglesea was due to inherit the estate as long as his deceased sibling had died childless.

But then an inconvenient chap named James Annesley popped up saying that he was Baron Arthur's long-lost son and rightful heir. According to Annesley's story, he'd been born to Baron Arthur's wife but was kicked out of the house by a jealous stepmother.

Completely broke, Annesley was forced to make his own way before being kidnapped and sold into indentured servitude in a far-flung colony for 13 years. To add to his miseries, he was prosecuted for murder. Luckily for Annesley, he was found not guilty and with the help of former nurses and servants, he was able to re-establish his identity and claim his rightful inheritance [source: Hazard].

In the inheritance case, Annesley alleged that his uncle, the Earl of Anglesea not only knew perfectly well that he had a nephew who was the legal heir to his brother's estate, but that the aforementioned kidnapping, as well as the murder trial, were both his doing. The wicked Earl had apparently gotten his attorney, John Giffard, to trigger the murder prosecution even though he knew that the death in question had been an accident. Giffard had in fact reported, in pre-trial hearings, that the Earl had said of his nephew that he would "give £10,000 to have him hanged."

So, the entire Annesley v. Anglesea case turned upon the question of whether Giffard could give testimony during the trial. The Earl opined that he couldn't, since doing so would violate his attorney-client privilege. Annesley, the nephew, argued, in brief, that the entire business about the murder trial and the notional £10,000 for hanging was not directly related to the case at hand (which, in case you've forgotten, had to do with inheritance) and therefore fell outside the bounds of attorney-client privilege [source: Hazard].

Obviously, attorney-client privilege, while clearly well-established by 1743, was not yet well-defined and that's why Annesley v. Anglesea is considered so pivotal. In the end, the judge agreed with Annesley and ruled that Giffard's testimony did not violate attorney-client privilege. Annesley won the lawsuit, inherited his baronial estate and died a year later, bringing that portion of our story to a happy/unhappy end [source: Hazard].

Outlines of Attorney-Client Privilege

Outlines of Attorney-Client Privilege
On Oct. 30, 2017, U.S. District Court Chief Judge Beryl Howell compelled former counsel to Paul Manafort to testify before a grand jury after deciding that their assertions of attorney-client privilege fell within the “crime-fraud” exception. Mark Wilson/Getty Images

At its root, attorney-client privilege is a simple concept. The idea is that for a lawyer to fairly represent a client, the client must feel that it's safe to communicate all the relevant information necessary without fearing that the attorney will then reveal that information, willingly or unwillingly.

Like many other elements of the legal system, this privilege isn't established in the U.S. Constitution. Nor does it have its origin in any legislation. It's a legal tradition established by precedent in common law. The U.S. and Canadian legal systems, based as they are in English common law, rely on precedent for much of the manner in which they function. That's why cases like Annesley v. Anglesea are considered so crucial. Over the years, as different courts have dealt with issues of attorney-client privilege, they've established a record of precedents that have come to define our modern understanding and use of the privilege [source: The Law Dictionary].

Accordingly, a number of exceptions to the attorney-client privilege have been established. One of the most important of these exceptions is known as the crime-fraud exception. Lawyer and writer David O. Stewart offers an example to illustrate the exception: If, for instance, a client has used a lawyer to set up a phony company that's meant to be a front for some numbers-running operation, then the communications involved in this endeavor are not considered to be protected by attorney-client privilege.

Lawyers frequently do more than offer legal counsel; they also often help clients with business dealings. It's when this happens that things can get, as Stewart notes, "messy." Clients will sometimes claim that any and all dealings with their lawyers should be considered "communicative acts," but courts are "generally skeptical" of that claim, Stewart says. Business is business and the law is the law. The attorney-client privilege is meant to pertain only to legal matters, not business dealings.

Evolution of Attorney-Client Privilege

Evolution of Attorney-Client Privilege
In the appeal that made it to California's Supreme Court, privilege outweighs defense counsels right to knowledge in some cases when it comes to evidence and its location. Justin Sullivan/Getty Images

Over the years, the attorney-client privilege has been poked, prodded, amended, refined, expanded and constrained. One notable case in which the courts went out of their way to craft an exception to the privilege was People v. Meredith.

In California in 1976, Michael Meredith got his buddy Frank Scott to join him for a bit of criminal activity. Together they jumped a guy named David Wade and ended up shooting and killing him. The two men ran for it but managed to get themselves arrested not long after [source: Dashjian].

Meredith and Scott languished in jail awaiting trial and one day, Scott's appointed counsel, attorney James Schenk, went by to chat. He was worried about getting ambushed by the prosecution and wanted as much info as Scott could offer. The subsequent conversation triggered a legal controversy that would go all the way to California Supreme Court.

What happened seems minor — Scott mentioned a wallet — the victim's wallet. Scott had lifted the aforesaid item from David Wade's corpse, divided the cash with Meredith and, he added, chucked it (the wallet) into a trashcan in his backyard [source: Dashjian].

Schenk sent his investigator to locate said wallet, had a look at it and then gave it to the cops. From the point of view of his client, this might not have been the best move. Not the part about giving the wallet to the police, but the bit just before that — when Schenk decided to get his hands on it in the first place.

During a subsequent hearing, Schenk was subpoenaed and, after being warned that he would otherwise be found in contempt of court, admitted everything he knew about the wallet. In the end, Scott was found guilty of first-degree murder and first-degree robbery, largely thanks to Schenk's testimony and that of his investigator, who located the wallet in Scott's trashcan [source: Dashjian].

In the appeal that made it to California's Supreme Court, Scott's (new) defense counsel argued that the defendant's attorney-client privilege had been breached when Schenk was made to testify about the evidence and its location. But the Court disagreed, creating an important exception to attorney-client privilege. Had Schenk left the wallet where it was, attorney-client privilege would have prevailed, but because he moved it, the privilege no longer applied. The Court pointed out that if the privilege was allowed to pertain in such a case, it would be an incentive for defense attorneys to try and "race" the cops to evidence in future cases [source: Dashjian].

Attorney-Client Privilege Today

Attorney-Client Privilege Today
Prosecutors in President Donald Trump's personal attorney Michael Cohen's case say that, because Cohen was "performing little to no legal work", not much of what was seized in an April 2018 FBI raid would be protected by attorney-client privilege. Spencer Platt/Getty Images

In 1993, Vincent W. Foster Jr., former White House aide in the Clinton Administration, was found dead of an apparent suicide. Foster had worked closely with the Clintons in Arkansas and followed them to Washington, D.C. where he seems to have fallen into a clinical depression. In the following years, as independent counsel Kenneth Starr waded into an investigation of the now infamous Whitewater real estate deal, he tried to get his hands on several pages of notes created by Foster's lawyer. The lawyer refused, citing attorney-client privilege, and the case went all the way to the U.S. Supreme Court. There, the court ruled 6-3 that the privilege must be honored in the case, even though Foster was dead [source: American Bar Association].

Of course, Bill Clinton is not the only U.S. president to be embroiled in the question of attorney-client privilege. In April 2018, the FBI raided the offices and hotel room of Michael Cohen, one of President Donald Trump's long-time personal lawyers. The FBI seized documents of all kinds, looking for evidence of bank fraud. It quickly emerged that the raid was connected to special counsel Robert S. Mueller III's investigation of President Trump's ties to Russia. When Trump was informed of the raid, he angrily responded that it was part of a "witch hunt" [source: Apuzzo]. Later, he tweeted that, "Attorney-client privilege is dead!"

"Attorney-client privilege is not dead," attorney Stewart says. The courts, he says, are following the usual legal practice. As typically happens, the judge has, in the Cohen case, appointed what's known as a taint team, to go through the evidence gathered and decide which material pertains to the case at hand, and which doesn't. That team will then pass on the pertinent information, while excluding what remains irrelevant. This taint team is a third-party, arms-length group of qualified people who are not involved with anybody in the investigation.

"It's not perfect," says Stewart, "you're relying on the kindness of strangers, but it's considered a workable solution to the problem. And, if anything, the judge in this case has gone above and beyond the usual practice by allowing Cohen's lawyers to also look through the material seized."

Prosecutors in the Cohen case also say that, because he was "performing little to no legal work" for Trump, not much of what was seized in the raid would be protected by attorney-client privilege [source: Parks].

"Attorney-client privilege," Stewart says, "is alive and well."

Author's Note: How Attorney Client Privilege Works

It's intriguing to me how many of our legal traditions, like attorney-client privilege, stem from ancient practices that long predate the Constitution. I think many of us forget that in England and all the countries once colonized by it, we use common law, not civil law. So, our law isn't codified, it's a fundamentally historical, evolving collection of decisions made over the centuries. In that sense, our law resembles the English language itself, which has no hard and fast code, but is instead an elastic set of traditional practices evolving through time.

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Sources

  • American Bar Association. "Attorney-Client Privilege." ABA Legal Fact Check. April 12, 2018. (June 14, 2018) https://abalegalfactcheck.com/articles/attorney-client-privilege.html
  • Apuzzo, Matt. "F.B.I. Raids Office of Trump's Longtime Lawyer Michael Cohen; Trump Calls It 'Disgraceful.'" New York Times. April 9, 2018. (June 15, 2018) https://www.nytimes.com/2018/04/09/us/politics/fbi-raids-office-of-trumps-longtime-lawyer-michael-cohen.html
  • Danilina, S. "What Is Attorney Client Privilege?" The Law Dictionary. (June 8, 2018) https://thelawdictionary.org/article/what-is-attorney-client-privilege/
  • Dashjian, Michael B. "People v. Meredith: The Attorney-Client Privilege and the Criminal Defendant's Constitutional Rights." California Law Review. Vol. 70, Issue 4, Article 10. July 1982. (June 8, 2018) https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2190&context=californialawreview
  • Forde, Michael K. "The White House Counsel and Whitewater: Government Lawyers and the Scope of Privileged Communications." Yale Law & Policy Review, Vol. 16, Issue 1, Article 4. 1997. (June 8, 2018) http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1331&context=ylpr
  • Frankel, Alison. "Convicted killer Jodi Arias sues her ex-lawyer over his book about case. Reuters. Oct. 26, 2017. (June 20. 2018) https://www.reuters.com/article/legal-us-otc-arias/convicted-killer-jodi-arias-sues-her-ex-lawyer-over-his-book-about-case-idUSKBN1CV3G1
  • Hazard, Geoffrey C. Jr. "An Historical Perspective on the Attorney-Client Privilege." Faculty Scholarship Series. Paper 2406. 1978. (June 8, 2018) http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3288&context=fss_papers
  • Johnson, Kevin. "Attorney-client privilege: It's all over the news but how does it work?" USA Today. April 17, 2018. (June 8, 2018) https://www.usatoday.com/story/news/politics/2018/04/17/attorney-client-privilege-its-all-over-news-but-what-lay-manlegal-primer/523855002/
  • McDonell-Parry, Amelia. "5 Convicted Murderers Who Might Actually Be Innocent." Rolling Stone. Jan. 10, 2018. (June 11, 2018) https://www.rollingstone.com/culture/pictures/5-convicted-murderers-who-might-actually-be-innocent-w508604/jodi-arias-w508610
  • Stewart, David O. Phone interview. June 12, 2018.
  • Trump, Donald J. (@realDonaldTrump). "Attorney-client privilege is dead!" Twitter. April 10, 2018. (June 15, 2018). https://twitter.com/realDonaldTrump/status/983662868540346371