![]() ![]() Typically investigators will issue subpoenas to attorneys rather than the more drastic measure of using a search warrant. It is very rare for the FBI to obtain a search warrant for an attorney’s office. What Happens When the FBI Searches an Attorney’s Office? Similarly, if a third party attends a meeting or call between a lawyer and a client and that person’s presence is not necessary to facilitate the communication (such as in the case of an interpreter), this may act as a waiver of the privilege. This is important to keep in mind in the era of social media: your Facebook/Instagram/Snapchat public posts are not privileged, even if you share them with your lawyer, because you are also sharing them with the rest of the world. In the Michael Cohen saga, the court is in the process of deciding how to determine which documents seized by the FBI are privileged and which are not, and it is possible that some of the documents or communications that may ultimately be deemed not to be privileged will be those related to communications involving criminal or fraudulent activity, such as attempts to cover up wire or bank fraud in connection with the hush money paid to Stormy Daniels by Cohen.Īnother exception to the attorney-client privilege is waiver: if you tell a secret to your lawyer then turn around and share it with others, you have just waived your right to claim the information you shared is confidential. If a client uses or attempts to use his attorney’s services to commit a crime or a fraud, those communications with the attorney are not privileged against disclosure. Exceptions to the Attorney-Client Privilege In the case of Michael Cohen, either Cohen’s clients, or Cohen acting on behalf of those clients, would need to convince the court that the communications seized by the FBI are privileged. ![]() The party asserting the attorney-client privilege must prove that the communication in question meets the standard to be protected and that no waiver of the privilege was made. Whose Burden is it to Prove a Communication is Privileged? There is no requirement that money change hands, invoices be sent, or even that a retainer or fee agreement exist for a communication to be privileged and an attorney-client relationship to exist. You may have heard Sean Hannity’s insistence that Michael Cohen was never his attorney because he never received an invoice from him or paid him legal fees, an argument that sounds like something right out of Better Call Saul. Misconceptions abound regarding this privilege.
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