December 21, 2018 Practice Points

Advice of Counsel: Impact on Attorney-Client Privilege and Waiver

President Trump’s tweet holds lessons about invoking an advice-of-counsel defense.

By Brian Spahn

Recent political events have thrust one aspect of attorney-client privilege and waiver law into the headlines. President Trump’s December 13, 2018, tweet invoking “advice of counsel” as a defense against campaign finance allegations after his lawyer Michael Cohen’s recent sentencing has prompted a number of legal scholars and commentators to observe that the president’s tweet could have significant adverse consequences for his ongoing legal and political battles. Indeed, everything that Cohen might have said and all of the information that Cohen might have looked at or thought about in his work for the president may no longer enjoy the protections of the attorney-client privilege as a result of President Trump’s advice-of-counsel tweet.

Privilege and Waiver Issues
The attorney-client privilege and work-product doctrine are essential tools for effective representation of all lawyers’ clients. The very foundation of the attorney-client privilege is the notion that in order for attorneys to provide effective counsel, they must be able to have full and frank communications with clients without fear that those communications will later become discoverable by an adversary.

At the same time, courts asked to weigh in on privilege issues routinely note the tension between the principles underlying the privilege and the fundamental purpose of the adversarial process—the search for truth. The protections provided by the privilege are therefore not absolute.

The issue of waiver is often raised in the context of disclosure of protected material to third parties. While there are a number of exceptions to the third-party waiver rule (e.g., the Kovel doctrine, functional equivalent test, and common interest doctrine), lawyers and clients must be mindful of the potential implications of sharing privileged information with third parties because waiver of the privilege often extends to all other communications relating to the same subject matter.

Waiver and Advice-of-Counsel Defense
Invoking an advice-of-counsel defense typically waives the attorney-client privilege. Courts often invoke the principle of fairness and the sword/shield analogy when discussing privilege waiver. Judges view it as unfair for a party, on the one hand, to use privileged information as a sword in advocating a position or invoking the advice-of-counsel defense while, on the other hand, claiming privilege in withholding that same information from a discovery request.

As a result, the president’s tweet could expose the 7,000-plus materials seized by authorities from Cohen that the New York special master in that case previously determined to be protected. By invoking advice of counsel, the president has essentially placed his privileged communications with Cohen “at issue”; and, therefore, investigators may soon have access to any and all communications Trump had with Cohen—as well as Cohen’s work product generated as counsel to Mr. Trump.

Variable Rulings
Rulings regarding the scope of the waiver resulting from an advice-of-counsel defense, however, are not uniform. They tend to vary by both the facts and the jurisdiction considering the question. Moreover, the question of whether the waiver extends to attorney work product has been addressed by courts differently. At a minimum, though, privileged materials relating to the subject matter of the advice received are typically found to be discoverable following the invocation of the advice-of-counsel defense.

Although the legal impact of President Trump’s December 13 tweet will not be known for some time, it serves as a reminder that before invoking an advice-of-counsel defense, lawyers and clients must be aware of the risks posed by inconsistent rulings regarding the scope of waiver, which, at their broadest, could expose all privileged and work-product material to discovery. In the end, lawyers would be best served to assume that all privileged and work-product material will end up in the hands of an adversary if the advice-of-counsel defense is invoked.

 Brian Spahn is a shareholder at Godfrey & Kahn, S.C., Milwaukee, Wisconsin.

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