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Is Trump, Jr.’s Conversation with the President Protected by Attorney-Client Privilege?Posted December 08, 2017
By Jonathan A. Karon
Earlier this week, Donald Trump, Jr. invoked the attorney-client privilege to refuse to answer questions from the House Intelligence Committee about what he told the President about Trump, Jr.’s now famous meeting with a Russian lawyer at Trump Tower. At first blush this seemed incredible, since neither Trump, Jr. nor the President are lawyers. According to a report last night on ABC News, Trump, Jr. said that the conversation was privileged because when he spoke to his father on the telephone, one or more attorneys were also on the line.
Is Trump, Jr.’s conversation with his father privileged? It’s very doubtful. The attorney-client privilege protects confidential communications for the purpose of obtaining legal advice between a lawyer and their client. It is one of the oldest recognized privileges. According to the U.S. Supreme Court, the purpose of the privilege, is “to encourage full and frank communications between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
The most obvious requirement is that Trump, Jr. and the President would have to both be clients of the same attorney for the privilege to apply. If only one of them was the client, neither of them can invoke the privilege because a third party (non-client and non-lawyer) was included, which means the conversation was no longer confidential. So, for example, if the lawyer only represented President Trump, then including his son in the call defeats any claim of attorney-client privilege.
It’s unlikely that one lawyer represented both Trump, Jr. and the President as representing both of them appears to be a prohibited conflict of interest. The American Bar Association’s Model Rules of Professional Conduct state that a conflict of interest occurs when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client”. (Model Rule 1.7). Dual representation of both Trump, Jr. and his father would be fraught with such a risk. For example, suppose Trump, Jr. is offered a lenient plea deal in exchange for testimony against his father. No ethical lawyer could represent both in that circumstance. In any circumstance where the defense of one would interfere with the other person’s defense, a conflict exists. (To make this easier to understand, suppose that the same lawyer was representing the President and Michael Flynn). When lawyers represent two clients in the same legal matter, they can’t play favorites and both clients are entitled to the contents of any communications between the other client and the lawyer.
So, assuming one lawyer didn’t claim to represent both father and son, could the privilege still apply? ABC’s story implies that more than one lawyer may have been on the phone. What happens if the call included a lawyer for President Trump and a separate lawyer for Trump, Jr.? Since the President’s lawyer doesn’t represent Trump, Jr. and Trump, Jrs’ lawyer doesn’t represent the President, we simply have additional third parties to the call, which is no longer confidential and thus no longer protected by the attorney-client privilege. There is, however, another privilege, called the “joint defense privilege” which protect confidential communications made to a co-defendant’s lawyer if the communication was related to the defense of both defendants. This “arguably” might protect the conversations, but I say “arguably” because there are limitations on this privilege, the most significant being that it only applies to communications made in the common interest of both potential defendants.
But even if both the President and Trump, Jr. were represented by one or more lawyers who participated in the call, that does not automatically make the conversation privileged. Equally important is the requirement that the primary purpose of the communication must be rendering or obtaining legal advice. The attorney-client privilege “does not apply if the attorney is acting in a capacity other than that of an attorney.” In Re Texas Farmers Insurance Exchange, 990 S.W.2d 337, 340 (Tex. App. 1999). In products liability cases courts have recognized that , ” in-house legal counsel participates in and renders decisions about business, technical, scientific, public relations, and advertising issues, as well as purely legal issues.” and that merely including in-house counsel in a meeting does not make the discussion protected by the attorney client privilege. In Re Vioxx Products Liability Litigation, 501 F. Supp.2d 789, 797 (E.D. La 2007). Similarly, if the Trump attorneys were there to offer political or public relations advice rather than legal advice, the call would not be privileged.
There is, of course, another possibility, which is the lawyers were added to the call solely to create a claim of attorney-client privilege. This is a classic strategy of corporate defendants in products liability cases. Documents relating to damaging safety studies or records of product failures may be routinely routed through the corporate legal department to set up a claim that they are somehow protected by attorney-client privilege or are protected attorney work product. In the words of one Federal Judge:
Many courts fear that businesses will immunize internal communications
from discovery by placing legal counsel in strategic corporate positions and
funneling documents through counsel (viz, addressing documents to the
lawyers with copies being sent to the employees with whom communications
were primarily intended). As a result, courts require a clear showing that
the attorney was acting in his professional legal capacity before cloaking
documents in the privilege’s protection.
In Re Vioxx Products Liability Litigation, 501 F. Supp.2d at 797 (citation to treatise omitted).
So determining whether there was a legitimate need to have the attorney on the line is important.
I’ve taken many depositions where attorney-client or other privileges were claimed. This requires that the lawyer ask questions (“create a record”) regarding the circumstances under which the conversation took place. In this case, if I’d been on the House Committee I would have at least asked Trump, Jr.:
Who were all the persons who were on the line? (If there were any others who weren’t lawyers, there goes the privilege claim)
Who were the lawyers?
Who did they represent?
When was the conversation?
How long did it take?
What was the purpose of the conversation? (Something more detailed than “obtaining legal advice”)
Who suggested/arranged the call?
Who asked the lawyer(s) to participate?
Did you have any other conversations with your father about your meeting at Trump Tower?
The answers to these might suggest other relevant questions to help determine if the conversation was privileged. If it seems like it’s not, the House Committee has the right to go to Court to seek to compel Trump, Jr.’s testimony. My view is they’d be likely to succeed. In my law practice I certainly wouldn’t accept the assertion of the privilege in these circumstances. But, whatever their reasons, a majority of the Committee have so far, chosen not to pursue a fight they’d be likely to win.
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