So the President of the United States is very concerned, and very confused, about attorney-client privilege. Let me try to explain, using the example of Tom Hagen from The Godfather. Why The Godfather? Two reasons. First, I want to. Second, I have a terrible suspicion that some of Trump's misunderstanding comes from watching the Godfather movies. (He does love TV.) Trump reportedly believes any meeting that has a lawyer in the room is protected by attorney-client privilege, and oh my sweet God is that not true.
Tom Hagen, as you know, is the Corleone family's unofficially-adopted son, a lawyer who doubles as the Corleone Family's chief lawyer and its consigliere, or criminal adviser-in-chief. No real Mafia organization has ever used an attorney as consigliere. It's just a pun (consigliere means "counselor," which Americans use to address lawyers), and a bit of narrative efficiency. Puzo uses one character to do two or three different jobs (Puzo's consiglieres also do the job of Mafia underbosses) so that he has one well-developed character instead of three sketchier minor characters. But Mafia consiglieres are most definitely not attorneys.
That said, how much of what Hagen does in The Godfather would be covered by attorney-client privilege?
None of it. Basically, not a damn thing.
Now, I am not a lawyer. I am also not a racketeer. But I think I've got a basic layman's grasp of the principle involved here, which is: You are not allowed to use your law degree to commit crimes. Get real.
Criminals are allowed to have lawyers. But lawyers are not allowed to be criminals. The Crips can have an attorney. But attorneys cannot join the Crips.
What this means, in practice, is that if you are accused a crime, even if it's something you actually did, you can hire a lawyer to defend you. And that lawyer cannot tell the authorities about things you reveal while preparing your defense. Attorney-client privilege protects your conversations with your attorney because otherwise you couldn't use an attorney. (A defense lawyer who tells the prosecution incriminating things about you is worse than no lawyer at all.)
On the other hand, if you are planning a crime and you ask your lawyer to help you plan it so it will work better, that is not attorney-client privilege. That is, what's the phrase, a criminal conspiracy. In the same way, if you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice.
So, let's say hypothetically that Don Corleone, the Godfather, is accused late in his life of a murder he committed in his youth, in which case he can retain Tom Hagen to defend him. Hagen would not be conspiring with him; he would be defending him in exactly the way the law envisions, and they would enjoy attorney-client privilege. This would allow Don Corleone to admit, privately to Hagen, that he actually did shoot Don Fanucci to death back in the day; he wouldn't have to lie to his lawyer and pretend to be innocent. Then Hagen and Corleone could effectively strategize about what case the prosecutors might have and what evidence there might be. Hagen could ask the Don what he did with the murder weapon, and Don Corleone could tell him, so Hagen could decide how likely it was that the police had found it. (Answer: probably not.) He could ask if the Don had used accomplices who might rat him out. (Answer: no. Tessio and Clemenza suspected, but weren't involved and didn't know anything.) This isn't pretty, but it allows the accused criminal to defend himself in court. And the prosecutors could not then haul Hagen into court and force him to tell them what Corleone said about the gun. That's how attorney-client privilege works.
If on the other hand, Hagen and Don Corleone have a conversation about beheading a horse in order to intimidate a Hollywood producer, that is not an attorney serving a client. That's two gangsters conspiring to commit a crime. Hagen can't play the attorney-client privilege card.
Hagen and Don Corleone actually know this, which is why they behave like criminal conspirators rather than attorney and client. Corleone carefully gives his instructions to Hagen in private, with no witnesses and nothing written down, so there is no evidence. (The horse-beheading is presented as a kind of gangster magic trick, where we can't see either man give the order or even see when Hagen had time to communicate any instructions to confederates. "Could you have your car take me to the airport?" is the construction of an alibi.)
Later on, when Don Corleone is incapacitated, Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant. Then Hagen is part of a more involved discussion about whether and how to kill a rival mobster and his pet police captain. Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either, for a simple reason: he is committing multiple felonies.
If you're trying to solve the Sollozzo-McCluskey murders, you probably need to flip one of the five guys who were in the room when the plan happened. But a fictional detective might have some luck looking at some of the paperwork. Someone arranged for the trigger man (Michael Corleone) to go directly from the scene of the crime to a ship bound for Europe with a false passport. That means someone acquired the passport, and the boat ticket, before the murder. That's a conspiratorial act; it's done with foreknowledge of the crime, in order to abet it. It is part of the murder scheme. If Hagen purchased the passage, or the passport, through his firm, the police could raid his firm for that evidence. Attorney-client privilege would not apply.
Also, the Corleone Family clearly does a lot of boring, paperwork-based crime to run their operation. They pay off large numbers of judges and politicians. (Don Corleone is described as extraordinarily good at bribing and corrupting public officials.) They launder their illegal profits into seemingly legitimate enterprises. They evade taxes, for the inevitable reason that they cannot declare their annual income from gambling, loan-sharking, and extortion. To the extent that they do any of this through Hagen and his firm, those activities are not protected from law enforcement. They're crimes, and if the authorities in The Godfather got wind of them, Hagen's Manhatttan law office would be vulnerable to a raid by the FBI, directed by, well, by the US Attorney for the Southern District of New York, the same US Attorney's office that raided the real Michael Cohen's home and office yesterday.
Which brings us to where we are today. The FBI and Department of Justice are especially cautious about piercing attorney-client communications, and err on the side of assuming they're privileged. But attorneys whom they investigate don't have much cause to complain. Being a lawyer does not mean you're allowed to help your clients evade the law. You don't have a license to launder money. You don't get to violate tax laws for your clients, or election laws. In fact, slow down with me for this one here, you don't get to violate the law at all. Because first, it's the law, and second, you're a lawyer. You know, an officer of the court. You are even more bound to obey the law than the rest of us. But then again, what do I know? I'm not an attorney. I'm not even a crook.
cross-posted from Dagblog; please comment there, not here
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