Warrants And Attorney Client Priviledge

I assume that like many other obscure laws and procedures with which the general population has become familiar over the past year (seriously, how many people knew what the Emoluments Clause, Hatch Act, or the Jones Act were two years ago?), ‘taint team’ shall now enter the public discourse. And the crime-fraud exception to attorney client privilege. And the fact that being an attorney does not automatically privilege everything said in a thousand foot radius around you.

For those who didn’t spend some time immersed in the nuances of electronic discovery law, a taint team is essentially a team involved in the investigation to serve as an air-gap protecting privileged information. Seize documents from a lawyer’s office, and something is bound to be protected. So the individuals involved in the investigation are not the ones to initially review seized documents. A team of investigators unrelated to the case review to filter out privileged communications (and, I assume, irrelevant documents). This is essentially privacy theater – should the taint team encounter some other illegal activity in the course of document review, it will not be ignored.

Which brings us to the crime-fraud exception to attorney client privilege — while a client is free to communicate with their attorney in many ways, asking one’s lawyer how to commit a crime (or how to cover up a crime) is not protected communication. If documents about laundering Russian money through Trump properties since the mid 1980’s (after 18 U.S.C. §§ 1956-1957 were enacted) are obtained from Cohen’s office … well, the documents have been obtained and privilege does not apply.

Farther, Trump’s seeming belief that having an attorney listen to a conversation aside, attorney client privilege covers communication seeking legal advice, providing legal advice, or research to provide legal advice. Otherwise rich dudes would just have a lawyer travel with them at all times and call everything privileged.

But maybe I’ve found the silver lining to Trump’s time in office — a good number of people are becoming far more informed about the country’s laws and procedures.

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